HJ (Iran) v Secretary of State for the Home Department and one other action

A gay or lesbian asylum-seeker cannot be refused refugee status because concealment of sexual orientation would avoid persecutory harm. The decision-maker must determine whether the claimant is gay or perceived as gay, whether openly gay people face persecution in the country of nationality, how the claimant would live on return, and why.

If a material reason for concealment is a well-founded fear of persecution, the claimant is a refugee even if concealment would succeed and other social reasons also operate. Concealment chosen only from personal preference or social pressure does not engage the Convention. The inquiry is individual and fact-sensitive. The question whether concealment is reasonably tolerable has no part in it.

HJ, an Iranian national, and HT, a Cameroonian national, were gay men whose asylum claims had been rejected. The tribunals found that openly gay people risked serious harm in their countries, but concluded that the appellants would conceal their sexual orientation and thereby avoid persecution. HJ’s case had previously been remitted in J v Secretary of State for the Home Department [2006] EWCA Civ 1238.

The Court of Appeal dismissed both appeals in [2009] EWCA Civ 172. It applied the approach that an applicant could be refused asylum if concealment was something he could reasonably be expected to tolerate.

The central issue was whether a person who would conceal his sexual orientation because of a fear of persecution nevertheless had a well-founded fear of persecution under article 1A(2) of the Convention relating to the Status of Refugees 1951.

1. Disposition. The Supreme Court unanimously allowed both appeals, set aside the orders of the Court of Appeal and remitted both claims to fresh tribunals. Lord Rodger gave the principal reasons, which Lord Walker, Lord Collins and Sir John Dyson expressly accepted. Lord Hope formulated a materially similar staged approach.

2. Gay men and lesbians may constitute a particular social group under article 1A(2) of the Convention. Regulation 6(1)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 confirms that a group based on the common characteristic of sexual orientation may qualify. The protection extends beyond private sexual acts to the relationships, activities and expressions informed by sexual identity.

3. The Convention protects a person against a well-founded fear of persecution for a protected characteristic. It would defeat that purpose to refuse protection because the person would successfully conceal the characteristic. A tribunal cannot require, or proceed on the normative expectation, that a claimant should live discreetly. The reasonable-tolerability approach in J v Secretary of State for the Home Department [2006] EWCA Civ 1238 was wrong in principle and was not to be followed.

4. The fact-finder must proceed through an individual and fact-sensitive inquiry:

   1. decide whether the claimant is gay or would be treated as gay;
   2. decide whether openly gay people face a real risk of persecution in the country of nationality;
   3. determine how the claimant would in fact live if returned;
   4. if the claimant would live openly, determine whether that would expose him to a real risk of persecution;
   5. if he would conceal his sexuality, determine why; and
   6. allow the claim where a material reason for concealment is a well-founded fear of persecution.

   Concealment resulting only from personal preference or ordinary social pressure does not establish refugee status. Where fear of persecution materially contributes to concealment, additional family, cultural or social reasons do not defeat the claim.

5. The tribunals had not addressed the claims under the correct test. HJ’s claim had been measured by reasonable tolerability. HT’s claim had been rejected on the assumption that he could relocate and conceal his sexuality, although there was no identified part of Cameroon where he could live openly without fear. Both cases therefore required redetermination. The request for a reference under article 267 TFEU was rejected because no question requiring a reference was clearly identified.

1. United Kingdom Supreme Court: In HJ (Iran) v Secretary of State for the Home Department and one other action [2010] UKSC 31 , the court allowed both appeals, set aside the Court of Appeal’s orders and remitted both claims for reconsideration.

2. Court of Appeal: In [2009] EWCA Civ 172 , the court dismissed both appeals. It upheld the use of the reasonable-tolerability approach.

3. HJ’s earlier proceedings: The Asylum and Immigration Tribunal dismissed his first appeal in 2005. The Court of Appeal remitted the claim in J v Secretary of State for the Home Department [2006] EWCA Civ 1238 , but the Tribunal again dismissed it after reconsideration in 2008.

4. HT’s earlier proceedings: The Tribunal dismissed his appeal in 2007. Reconsideration was ordered, but in 2008 a Senior Immigration Judge held that the original determination disclosed no error of law.