Mx M v Secretary of State for the Home Department

The principles in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department apply to protection claims based on gender identity as well as sexual orientation. Decision makers must identify the claimant’s relevant identity and assess the risk to the person as they would live openly. A claimant cannot be expected to conceal an innate characteristic to avoid persecution where discretion would be motivated by fear of persecution.

Persecution may arise from one sufficiently serious act, or from cumulative and repeated harm. Physical or degrading abuse by state officers, and daily targeted abuse by members of the community, must be assessed for their nature, intensity, duration, power imbalance and discriminatory motivation. Evidence must be considered in full, including evidence concerning transgender people and the practical sufficiency of state protection.

The appellant, a national of El Salvador who identified as non-binary and was perceived as transgender, appealed against the First-tier Tribunal’s dismissal of a protection claim. The respondent accepted membership of a particular social group but disputed the existence of a real risk of persecution and maintained that sufficient state protection was available.

The First-tier Tribunal treated the appellant’s changed identity and appearance as insufficiently significant, regarded past abuse as discrimination rather than persecution, and did not adequately engage with country material concerning LGBTI people, particularly transgender women. The central issues were whether the appellant’s identity was properly identified, whether LGBTI people who lived openly in El Salvador faced persecution, whether effective state protection was available, and whether any future discretion would be motivated by fear of persecution.

1. The First-tier Tribunal’s decision was set aside for material errors of law. The Tribunal failed to make a positive finding about the appellant’s non-binary identity and did not properly assess the claim as one concerning the wider LGBTI community and a person perceived to be a transgender woman. Where a claimant’s self-identification is neither challenged nor doubted, decision makers should, where possible, use terminology that respects the chosen identity.
2. The Tribunal failed to consider material country evidence, including the UNHCR Eligibility Guidelines and evidence concerning transgender people. Its treatment of the Human Rights Watch material was perverse: evidence that LGBTI returnees faced specific threats, gang violence, sexual violence and police abuse could not logically support a general conclusion that LGBTI people were safe.
3. Under Article 9 of the Council Directive 2004/83/EC, persecution may consist of a single act sufficiently serious by its nature, or an accumulation of measures sufficiently severe by repetition. The five-police-officer assault, motivated by homophobia and involving surrounding, taunting, pushing, punching, slapping and spitting, was capable of constituting inhuman or degrading treatment and persecution. Daily targeted abuse involving verbal insults, rubbish, drink cans and urine also had to be assessed cumulatively and could not automatically be reduced to discrimination or harassment.
4. Applying the framework in HJ (Iran) and HT (Cameroon), the appellant was visibly perceived as a transgender woman. The country evidence established a real risk of serious violence, sexual violence, murder and coercion by gangs, together with an absence of effective protection in practice because of weaknesses in the criminal justice system and discriminatory conduct by police.
5. The appellant would probably modify their behaviour, including political and social activism, if returned. That discretion would be motivated by fear of persecution rather than a personal preference for privacy. The appeal was therefore allowed on protection and human rights grounds. An anonymity order was made.

• First-tier Tribunal: The appellant’s second appeal, following further submissions, was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for material errors of law. The Upper Tribunal remade the decision and allowed the appeal on protection and human rights grounds.