TK v Secretary of State for the Home Department

In an asylum claim based on sexual orientation, the tribunal must apply the staged approach in HJ (Iran) v SSHD [2010] UKSC 31. A gay applicant who would conceal his sexuality for a material reason of well-founded fear of persecution is entitled to protection.

Persecution may arise from the cumulative effect of criminalisation, entrenched discrimination, harassment, threats and inadequate state protection. A claimant need not show that every member of the relevant group will suffer harm. It is enough to establish a consistent pattern creating a real risk. Each case still requires an individual assessment of whether discretion would result from fear of persecution rather than social, cultural or religious pressures alone.

The appellant, a citizen of St Lucia, appealed after the First-tier Tribunal accepted that he was gay but found that the threshold of persecution had not been met. The Upper Tribunal had already set aside that decision for error of law and remade the appeal.

The respondent accepted that the appellant had lived openly in the United Kingdom and would conceal aspects of his sexuality on return because he feared serious harm. The sole issue was whether openly gay men in St Lucia faced a real risk of persecution.

The Tribunal considered extensive country material and Dr Mahoney’s evidence concerning criminalisation, discrimination, violence, underreporting and the availability of protection.

1. Appeal allowed on asylum grounds. The appellant had a well-founded fear of persecution in St Lucia.

2. The Tribunal applied the staged approach in HJ (Iran) v SSHD [2010] UKSC 31. The appellant’s sexuality was accepted. He would live discreetly if returned, and a significant and material reason for doing so would be fear of persecution. The remaining question was whether that fear was well founded.

3. Applying the real-risk approach in AA v SSHD [2006] UKAIT 00061 and AA (Zimbabwe) v SSHD [2007] EWCA Civ 149, the appellant did not have to prove that every openly gay man would suffer serious harm. The evidence had to establish a consistent pattern of mistreatment sufficient to create a real risk.

4. The evidence did not establish a sufficient likelihood of state prosecution under sections 132 or 133 of the Criminal Code No 9 of 2004. However, criminalisation aggravated pervasive homophobia and discouraged reporting. Openly gay men faced frequent harassment, threats, discrimination in employment and accommodation, and a climate of fear. Reports of serious violence had to be assessed in the context of underreporting, the small population and the very small number of openly gay men.

5. There was no sufficiency of protection. The police were overstretched, evidence indicated inadequate investigation of homophobic violence, and victims reasonably feared further abuse or exposure if they sought assistance. The limited LGBT organisation was not a support agency capable of providing meaningful protection.

6. The cumulative measures were sufficiently severe to constitute persecution within Article 9 of the Qualification Directive. The risk existed throughout St Lucia; comparatively greater tolerance in the north did not make internal relocation safe or reasonable. The Tribunal stressed that not every gay man from St Lucia would qualify: the reason for any intended discretion must be assessed individually.

• Upper Tribunal (Immigration and Asylum Chamber): Remade the appeal after setting aside the First-tier Tribunal’s decision for error of law, and allowed the appeal on asylum grounds.

• First-tier Tribunal: Accepted that the appellant was gay but concluded that the threshold of past or prospective persecution had not been met.