HL (Malaysia) v Secretary of State for the Home Department

An arguable uncertainty about the ratio of a leading asylum authority can constitute a point of principle warranting permission for a second appeal. Where a lower tribunal may have treated materially different judicial approaches as equally authoritative, and that approach may have affected the result, permission may be granted despite an alternative finding that might otherwise determine the case. The Court of Appeal therefore granted permission to examine the proper approach to homosexual asylum claims, including the significance of concealment or discreet living and the competing reasoning in HJ (Iran) [2011] 1 AC 596.

A Malaysian national of Chinese origin claimed asylum on the basis that, as a homosexual, he would face persecution if returned. The Secretary of State refused the claim on 31 January 2011. Immigration Judge Turquet and Senior Immigration Judge Jordan dismissed his appeals, and Sir Richard Buxton refused permission on the papers.

Before the Court of Appeal, the issue was whether the Immigration Judge had erred by giving equal weight to Lord Hope’s and Lord Rodger’s speeches in HJ (Iran) [2011] 1 AC 596, and whether that alleged error might have affected the result. The central question was which approach represented the ratio governing the asylum claim.

Application granted.

1. An application for permission to bring a second appeal requires more than a merely arguable error. Here, however, the alleged error raised a point of principle concerning the proper interpretation of HJ (Iran) [2011] 1 AC 596.
2. It was arguable that Immigration Judge Turquet had followed Lord Hope’s judgment while giving it equal weight with Lord Rodger’s approach. The judgment identified an apparent tension between the speeches and noted the absence of Court of Appeal guidance.
3. As recorded in the judgment, Lord Hope’s formulation treated a claimant with a well-founded fear of persecution as entitled to asylum, however unreasonable the refusal to resort to concealment, and stated that inability to do openly in the country of nationality everything possible in the country of protection was not itself the test. Lord Rodger’s approach was said to treat the claimant’s fear of persecution and whether he would live discreetly as central to the inquiry.
4. It was arguable that the Immigration Judge’s reference to Lord Hope’s formulation had infected her approach, notwithstanding her separate conclusion that the appellant would choose to live discreetly and that the evidence did not establish a risk of persecution. If the legal approach was wrong, the appellant might be entitled to asylum on the evidence.
5. The issue was therefore sufficiently important and potentially outcome-determinative to justify permission to appeal. The Court of Appeal did not determine the substantive asylum claim.

1. Court of Appeal (Civil Division): Lord Justice Longmore granted permission to appeal, following Sir Richard Buxton’s earlier refusal of permission on the papers: [2011] EWCA Civ 1654.
2. Upper Tribunal (Immigration and Asylum Chamber): the appellant’s appeal failed under Appeal No. AA/01323/2011.
3. Immigration Judge: Immigration Judge Turquet dismissed the appellant’s appeal against the refusal of asylum.
4. Secretary of State: the asylum application was refused on 31 January 2011.