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

In an asylum claim based on sexual orientation, the tribunal must assess the applicant’s likely conduct on return and, if discretion is likely, why. A claimant cannot be required to conceal or dissemble because of fear of persecution. The Refugee Convention does not, however, guarantee every freedom or social condition available in the receiving country. If discretion would result from personal choice or social, cultural or religious pressure rather than fear of persecution, the necessary causal link is absent. The staged guidance in HJ (Iran) and HT (Cameroon) v SSHD 1 AC 596 is important but not a straitjacket. The focus is what is actually likely to happen to the individual.

The appellant, a Malaysian national who was ethnic Chinese and Christian, claimed asylum on the basis that he feared persecution because of his sexual orientation. The First-tier Tribunal dismissed his appeal against the refusal of asylum and removal directions. The Upper Tribunal upheld that decision.

The appeal concerned the proper application of HJ (Iran) and HT (Cameroon) v SSHD 1 AC 596. The appellant argued that guidance given by Lord Hope and Lord Rodger was inconsistent and that the tribunals had applied the wrong approach. The central issue was whether the findings about the appellant’s likely conduct and risk on return disclosed an error of law.

1. Appeal dismissed. The First-tier Tribunal had made findings that were open to it, and the Upper Tribunal was right to uphold them.
2. There was no inconsistency between Lord Hope’s and Lord Rodger’s guidance in HJ (Iran) and HT (Cameroon) v SSHD 1 AC 596. Both recognised that an asylum applicant cannot be required to conceal or dissemble aspects of sexual orientation because of fear of persecution.
3. The protection of the right to live freely and openly as a gay person is consistent with the Convention’s limited purpose. The Convention does not guarantee universal human rights or every freedom available in the receiving country. It is concerned with the risk of persecution in the country of nationality.
4. The structured inquiry in Lord Rodger’s guidance is important but is not a straitjacket. Where an applicant would live discreetly, the tribunal must examine why. If discretion results from personal choice, social pressure, or cultural or religious reasons rather than fear of persecution, there is no necessary causal link between the applicant’s conduct and the feared persecution, and the claim should fail.
5. The First-tier Tribunal was entitled to find that the appellant would not face persecution in Malaysia and, alternatively, that he would live discreetly by choice and would not thereby face a real risk of persecution. Those findings properly applied the guidance and disclosed no error of law.
6. Lord Neuberger added that, where the respondent’s counsel cannot attend but the court has written material and clear arguments enabling it to form a provisional view, the hearing may proceed on a contingent basis. The hearing should be adjourned if the court is persuaded, remains in doubt, or otherwise considers oral argument necessary.

• Court of Appeal (Civil Division): in [2012] EWCA Civ 834, dismissed the appeal.
• Upper Tribunal, Immigration and Asylum Chamber: on 2 March 2011, upheld the First-tier Tribunal’s determination.
• First-tier Tribunal, Immigration: determination promulgated on 9 February 2011, dismissing the appeal against the refusal of asylum and removal directions.