HJ (Iran) & Anor v Secretary of State for the Home Department

In a refugee claim based on sexual identity, the question is whether the applicant could reasonably be expected to tolerate the conditions required to avoid persecution on return. The inquiry includes any suppression of sexual identity and related aspects of life, not merely the continuation of private sexual acts. It is fact-sensitive and requires country evidence, including relevant social and religious norms, subject to the limits imposed by fundamental human rights. A tribunal may uphold a finding that discretion is tolerable where the evidence supports it. Failure to recite the governing test expressly is not necessarily an error of law if the reasoning shows that the tribunal understood and applied it.

HJ, an Iranian national, and HT, a Cameroonian national, claimed refugee status under article 1A(2) of the 1951 Convention Relating to the Status of Refugees because of their homosexuality. HJ appealed against the Tribunal’s dismissal of his claim on remittal following the earlier Court of Appeal decision in [2006] EWCA Civ 1238. HT appealed after the Tribunal dismissed his claim and, on reconsideration, held that the earlier determination contained no material error of law.

The appeals concerned whether an applicant could be denied refugee status because he would live discreetly or conceal aspects of his sexual identity to avoid persecution, and whether that issue had been correctly addressed on the evidence.

Pill LJ gave the leading judgment. Keene LJ and Sir Paul Kennedy agreed. The appeals were dismissed.

1. Governing test. For a refugee claim based on sexual orientation, the tribunal must assess whether the applicant could reasonably be expected to tolerate the circumstances likely to arise on return. The inquiry includes whether avoiding persecution would require concealment or suppression of sexual identity and related aspects of life. The test stated in the earlier decision in J, by reference to S395/2002, complied with the Convention and was binding on the court.
2. Country context. As additional guidance, the court held that the assessment is objective but made in the context of the particular society. Country evidence, including social norms and religious beliefs, is relevant to what an applicant can expect on return. Respect for social standards has limits where the resulting restriction would violate a fundamental human right.
3. HJ. The Tribunal had understood and applied the governing test. It carefully assessed the evidence concerning Iran, including the risk to openly homosexual persons and the lower risk associated with discreet private activity. Its findings that HJ had previously maintained relationships and social contacts without serious detriment, and could reasonably be expected to tolerate similar conditions on return, were open to it and were not perverse.
4. HT. The Tribunal was entitled to find that HT would act discreetly on return, had previously conducted two relationships, and had suffered a single attack following a one-off incident. HT had not established or asserted facts capable of showing that a discreet life would be intolerable. The absence of an express reference to the earlier test did not amount to an error of law because the relevant factual groundwork had not been established. On reconsideration, the Tribunal correctly treated intervention as requiring a material error of law. The appeals were therefore dismissed.

• Court of Appeal (Civil Division): dismissed both appeals.
• Asylum and Immigration Tribunal: dismissed HJ’s appeal on 8 May 2008 after remittal. It dismissed HT’s appeal on 29 October 2007; on reconsideration on 5 June 2008, it held that the earlier determination was not materially flawed by an error of law.
• Court of Appeal (Civil Division): the earlier HJ appeal was remitted for further reconsideration in [2006] EWCA Civ 1238.