LC (Albania) v The Secretary of State for the Home Department & Anor

In a sexual-orientation asylum claim, the four-stage approach in HJ (Iran) remains lawful and compliant with the Qualification Directive. An applicant is a refugee if he would live openly and thereby face persecution, or if a material reason for concealing his sexual orientation would be fear of persecution. Refugee status does not arise merely because the applicant is gay and openly gay people are persecuted in the country of origin. The decision-maker must assess how that individual would in fact live on return and why. Concealment chosen for reasons unrelated to fear of persecution, including social pressures, does not found a well-founded fear of persecution.

The appellant, an Albanian national, claimed asylum on the basis of his sexual orientation. The First-tier Tribunal accepted that he was gay but found that he would choose to live discreetly in Albania for personal reasons and social pressure, rather than from fear of persecution. It dismissed his appeal, and the Upper Tribunal found no material error of law.

On a further appeal, the appellant contended that the country guidance relied on below was invalid and that later decisions of the Court of Justice of the European Union had displaced the Supreme Court’s approach in HJ (Iran). The Secretary of State accepted the error concerning country guidance but maintained that it was immaterial. The central issue was whether the third and fourth stages of the HJ (Iran) approach remained compatible with the Qualification Directive.

1. Appeal dismissed. The court held that the guidance in HJ (Iran) [2010] UKSC 31 remained binding, lawful and compliant with the Qualification Directive. The tribunals had therefore not erred by applying it.

2. The required inquiry is sequential. The decision-maker must determine whether the applicant is gay or would be perceived as gay; whether openly gay people face a well-founded fear of persecution in the country of origin; how the particular applicant would in fact behave on return; and, if he would conceal his sexual orientation, whether fear of persecution would be a material reason for that concealment.

3. Refugee protection is available where the applicant would live openly and face persecution. It is also available where he would conceal his sexual orientation because fear of persecution materially motivates that conduct. It is not enough that a person could hypothetically prefer to be open. The inquiry concerns the behaviour of the particular applicant if returned.

4. Concealment caused solely by personal choice, social pressure, or cultural or religious considerations of the applicant’s own choosing does not create a well-founded fear of persecution. Such pressures do not themselves attract protection under the Convention relating to the Status of Refugees or the Directive.

5. Germany v Y and Z and Minister voor Immigratie en Asiel v X, Y and Z did not undermine HJ (Iran). They reject an expectation that an applicant should avoid persecution by concealing a protected characteristic. They do not address a case where the applicant would conceal that characteristic for reasons unrelated to fear of persecution.

6. The First-tier Tribunal wrongly relied on MK (lesbians) Albania CG as country guidance, since its order had been set aside. That error was immaterial. The unchallenged factual finding that the appellant would voluntarily live discreetly was independently decisive under HJ (Iran). The court also declined to entertain wider factual and presumption-based submissions which fell outside the permitted grounds.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal in [2017] EWCA Civ 351. It held that HJ (Iran) remained compatible with the Qualification Directive.

• Upper Tribunal (Immigration and Asylum Chamber): On 2 May 2014, dismissed the appeal and held that the First-tier Tribunal had applied HJ (Iran) without material legal error.

• First-tier Tribunal: In a determination promulgated on 13 January 2014, dismissed the asylum appeal. It accepted that the appellant was gay but found that he would live discreetly by voluntary choice rather than from fear of persecution.