Supreme Court says gay people should not have to conceal their sexuality

07 July 2010

The Supreme Court today ruled today that homosexual asylum seekers should be granted refugee status if going back to their homeland would result in them being forced to conceal their sexuality or face persecution for living openly as a gay person.
 
The Commission intervened in the case involving HJ, from Iran, and HT, from Cameroon, who are both gay men.  They claimed asylum in the United Kingdom based on a fear that they would be persecuted if they were returned to their home countries.  The Secretary of State for the Home Department refused asylum in both cases.
 
The men appealed to the Court of Appeal which decided that they could be returned to their home countries because it could be expected that they could exercise discretion in their behaviour and sexual identity and so there was no real risk of persecution.

The Supreme Court overturned this decision.  They adopted the test set out in the Commission's submissions which involves a staged approach.  The first question is whether the person is actually gay and then, if they are, questioning whether they would be liable to persecution in their home country because of their sexuality.  If they would have to conceal aspects of their sexuality and live discreetly if returned because of the real fear of persecution then they should be entitled to asylum. 

HJ and HT's case will now be sent back to the Home Office for a fresh decision to be made.

Lord Hope, the Deputy President, said 'the question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does... he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it'.

John Wadham, the Equality and Human Rights Commission’s Group Legal Director, welcomed the decision, saying:

'This judgment sends a clear message to the government that they must properly take into account a genuine risk of mistreatment due to a person’s sexuality when reviewing asylum status.

'A gay person should be allowed to live openly if they choose; concealing their sexual identity to avoid persecution is not something they should be forced to tolerate.'

Ends

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Notes to Editors

HJ (Iran) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action HT(Cameroon) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action [2010] UKSC 31

The Convention
Article 1A(2) of the Convention relating to the Status of Refugees provides that a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country”.

Article 33(1) provides that “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

The Equality and Human Rights Commission
The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.  The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.