YD (Algeria) v Secretary of State for the Home Department

Persecution is assessed by the seriousness of the feared treatment, considering its nature, intensity and duration. Separate acts may cumulatively meet the threshold. In sexual-orientation cases, the tribunal must consider how an openly gay applicant would be treated and why he would conceal his orientation on return. Concealment caused by social, cultural or religious pressures, without fear of persecutory treatment or significant resulting harm, does not itself establish persecution. Criminalisation of homosexual conduct alone is insufficient. Internal relocation requires an assessment of all relevant circumstances and whether relocation would be reasonable or unduly harsh. Similar considerations did not create very significant obstacles to reintegration on the facts.

The appellant, an Algerian national, claimed asylum and human-rights protection on the basis of his sexual orientation and the risk posed by family members. The First-tier Tribunal dismissed his appeal against the refusal of leave to remain. The Upper Tribunal dismissed a further appeal on 21 November 2017, relying on the country guidance in OO (Gay men) (Algeria) CG [2016] UKUT 00065.

The appeal challenged whether that guidance wrongly restricted persecution to physical violence, failed to assess cumulative harm, and failed to consider whether concealment of sexual orientation made internal relocation unduly harsh or created significant obstacles to reintegration under Article 8.

The appeal was dismissed. Lord Justice Lewis delivered the judgment, with Lord Justice Peter Jackson and Lady Justice Asplin agreeing.

1. Persecution under the Refugee Convention is not confined to killing, serious physical or sexual violence, or torture. Under Article 9 of Council Directive 2004/83/EC, acts may constitute persecution where their nature, intensity and duration cause sufficiently serious harm. Acts insufficient individually may do so cumulatively.
2. The approach in HJ (Iran) v Secretary of State for the Home Department [2011] 1 A.C. 596 required the tribunal to ask whether the applicant was gay, whether openly gay people would face persecution in the country of nationality, what the applicant would do on return, and why he would live discreetly. Social pressures, without a fear of persecution, did not engage the Refugee Convention.
3. The country guidance in OO (Gay men) (Algeria) CG [2016] UKUT 00065 had considered criminalisation, prosecution, violence, discrimination and social responses. It had not confined persecution to physical violence and had assessed the evidence cumulatively. It was entitled to conclude that, outside the family, gay men in Algeria did not face a real risk of persecution. Criminalisation of homosexual conduct alone was insufficient.
4. The fact that a gay man concealed his sexual orientation because of social, cultural or religious pressures did not itself amount to persecution. The state was not required to alter prevailing societal values. The position was different where family members inflicted persecutory violence and the state was unwilling or unable to provide protection.
5. Internal relocation required consideration of all relevant circumstances and whether relocation would be reasonable or unduly harsh, applying Januzi v Secretary of State for the Home Department [2006] 2 AC 426 and AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678. On the facts, the appellant could relocate away from his family, had no significant psychological harm from concealment, and had demonstrated adaptability and self-reliance.
6. The appellant’s concealed sexual orientation would severely limit aspects of his life in Algeria but did not constitute a very significant obstacle to reintegration or render return disproportionate under Article 8. The appellant was ordered to pay the respondent’s reasonable costs, subject to assessment.

1. Court of Appeal (Civil Division) — In [2020] EWCA Civ 1683, dismissed the appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 21 November 2017, dismissed the appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal — Dismissed the appellant’s appeal against the respondent’s refusal of leave to remain dated 13 October 2015.