Future behaviour and the Refugee Convention

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Photo by Georges Biard

Photo by Georges Biard

HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 represents a fundamental change in UK asylum law. The previous settlement, established by the case of Iftikar Ahmed [2000] INLR 1, was a very British and pragmatic one. Essentially, the question of whether future behaviour could make a person a refugee became a simple question of fact: would the person in question in fact, despite the dangers, behave in a way that would expose him or her to risk of persecution?

Most of us are not committed political or religious activists and would not be willing to expose ourselves and perhaps our families to danger for a political or religious cause. Some people are special, though, and they do. Every day. In countries like Burma and Iran, where the consequences can be dire. Some would characterise their behaviour as stupid, some as brave. Some, rather sad characters themselves, routinely describe it as ‘not credible’. It was always difficult to persuade an immigration official or immigration judge to take the imaginative leap to accept that the particular asylum applicant was one of these very special people, without whom the world would never improve and to whom we all owe so much.

HJ (Iran) establishes that where a person would in future refrain from behaving in a way that would expose them to danger because of the risk of persecution that behaviour brings, that person is a refugee.

The context in HJ (Iran) is famously homosexuality — would a gay man or lesbian woman have to conceal aspects of their sexuality in order to avoid persecution — but the legal principle is a wider one of profound significance. It gives proper life to the Refugee Convention and does away with the slightly sordid previous approach, which allowed UKBA to return activists that had been cowed by their past experiences. I always thought that this was one of the strongest arguments that the Home Office could run in this type of case: that the fact the asylum claimant had fled their country signified that they had been very successfully persecuted and he or she was unlikely to repeat the behaviour that had already caused them such pain and misery.

More prosaically here, is the guidance to be followed, taken from the leading judgment of Lord Rodgers (Lord Hope’s judgment is in fact the minority judgment and not to be followed):

When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.

The judgment is also significant for what it says about internal relocation in these cases. At paragraph 84 Lord Rodgers goes on:

I add a comment on the case of HT. The tribunal rejected his application on the ground that, on his return to Cameroon, he could go to live in another part of the country and live discreetly there. In that event he would have no real fear of persecution. But there appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution. So in no sense would the applicant be returning to a part of the country where the state would protect him from persecution. In effect, therefore, the tribunal was simply saying that his application should be rejected because, on return, he could take steps to avoid persecution by conducting himself discreetly. For the reasons which I have given, that approach is inconsistent with the very aims of the Convention.

This also applies more widely than just in gay cases. If a political or religious activist would want to continue his or her activities in future but would not be able to because of the fear of persecution, it is no answer to say that person can move to another part of the country and remain effectively gagged and bound there as well.

I used these wider arguments only yesterday in a context other than a gay case, that of an Ahmadi Muslim from Pakistan. It is clear from the country information that some Ahmadis do have to tailor and limit their activities in order to avoid persecution. They are now surely entitled to refugee status in the UK.

Lastly, I cannot leave this case without commenting more frivolously (this is a blog, not a legal journal!) on Lord Rodger’s comments on Kylie and the reaction of the right wing press. The Kylie comments are easy to take out of context, and having read the judgment in full now I entirely approve of an admittedly light-hearted example of wider issues around sexuality. He was clearly deliberately deploying a stereotype, as the reference to beer-swilling rugby players shows.

As for the press, it is difficult to imagine a more prefect storm of right wing fantasy. Liberal judges allow black and Middle Eastern asylum seekers to stay… and they are gay! The idea of floods of homosexuals (and lesbians too, if you take the approach of the disgraceful so-called immigration judge ‘Peter’ on Radio 5 Live breakfast that day) descending on these shores is quite entertaining.

More worrying is the likely approach of UKBA to gay cases in future. How does one prove one is gay? I lost my first ever asylum appeal on exactly this basis. What was my client supposed to do? Mince into court wearing a tutu? In Australia this is the direction that decision making has apparently taken (see Jenni Millbank “From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 International Journal of Human Rights 391-414). Even an enlightened former PO seems to think it takes one to know one and that plenty pretend to be gay in order to get asylum. Gay asylum seekers may need to be prepared for some unfortunately intimate and intrusive enquiries in future.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

14 responses to Future behaviour and the Refugee Convention

  1. Excellent stuff.

    If people want to hear the FiveLive braodcast btw I put it up here http://madikazemi.blogspot.com/2010/07/bbc-carries-cross-chanel-coverage-on.html

    • Well done for preserving it. I listened to it after Immie posted a link, but of course the link only worked for a day or so. The intervention by ‘Peter’ was unbelievable. If he really is an immigration judge (and the references to Hatton Cross and North Shields suggested he knew something about the immigration tribunal) then it is all deeply worrying: claimants pretending to be gay ‘all the time’ and ‘endowing themselves’ with their claimed sexuality. And after all that he claimed he was offended when someone questioned whether he really was an immigration judge!

    • If ‘Peter’ is an immigration judge he isn’t one of the gay ones who in my experience are a lot more discreet (and good looking) than some of their more traditional colleagues.

      But there is a real problem of people climbing to be gay just because they are trying to stay in the UK, of the people I have dealt with over the years only a small fraction of those have been able to satisfy me personally that they are gay ‘beyond’ reasonable doubt.

      There is an easy solution to this problem.

      Take the assessment of a persons sexuality out of the hand of the UKBA and get peep assessed by independent experts (who should most probably be well adjusted gay people themselves) who like the medical foundation can produce a report on a persons claimed sexuality which will be accepted by the UKBA and the courts unless clearly flawed.

      Primary decision making should only be undertaken by case owners who have undertaken and passed specific CPD covering this area, as should be the case for the HOPO and the IJ involved in the hearing. Counsel should do the same if they want to be credible dealing with these cases, but I know some people think they know better and will carry on regardless.

      If this isn’t done then a competent set of representatives might think that maybe a challenge at JR against the tribunal and the UKBA, for acting in breech of gay peoples Human Rights by failing to have such a system in place, would be a useful approach. Hopefully it wouldn’t take Lord Rodgers and his mates interference to make people change their approach.

      Told you I was clever ;)

    • Sorry I have been talking to a criminal lawyer recently and trying to explain why the current arbitrary approach to anonymity in rape cases is actually in breach of the Human Right Act.

      What I of course meant to say was only a fraction have convinced me personally that there is a reasonable degree of likelyhood that they are gay.

    • Am not a fan of our friend “Peter” (would love to know who he is … I don’t think he has been disciplined yet for his comments by the tribunal) but IJs have a tough job on their hands. Selecting “experts” on people’s sexuality really doesn’t solve the equation.. no more than getting “experts” on people’s ethnicity at any rate. At the end of the day IJs have to figure out if someone is lying (always an interesting project) and if someone is a consumate liar then they will suceed as they would do in any other legal forum. But establishing sexuality, as with ethnicity, religion and any any other reason for persecution is only the first hurdle and should not be seen by practitioners, on either side, as an end in itself.

    • I disagree with you and Paul. I really don’t think the idea of having a panel of gay people adjudicate as ‘experts’ on whether another person who claims to be gay is actually gay is a a very good idea at all. In fact, I think it is an absolutely terrible idea. I would suggest that the ‘reasonable degree of likelihood’ standard of proof combined with a starting point of not assuming everyone is lying should be perfectly adequate. The tag ‘culture of disbelief’ may annoy UKBA caseworkers but is an apt and accurate description of the culture there and with many immigration judges. Nothing is accepted at face value without corroborative evidence. This is a perversion of the correct approach as well as dehumanising for the disbeliever and the disbelieved.

    • It was teeth grinding not just because of the judge and the barrister but also because Summerskill let Green get away with repeating nonsense about numbers and ‘first safe country’ …

  2. Also my iPad thinks it knows better than me when it comes to spelling and grammar and is randomly altering some words.

    I promise that’s me stopped posting FM…maybe an edit function for comments would be useful if you are going to let idiots like me comment in here ;)

  3. “There is an easy solution to this problem.

    Take the assessment of a persons sexuality out of the hand of the UKBA and get peep assessed by independent experts (who should most probably be well adjusted gay people”

    This was the suggestion in Canada. Sorry, I don’t have a source but from memory it was discussed with the (Conservative) Immigration Minister.

    It makes a huge amount of sense but of course it would have to be properly funded. I do think the ‘training’ idea as it’s being suggested is pretty timid and not thought through. In my policy development I’ve been thinking that there needs to be some sort of LGBT oversight. This was actually suggested to Labour in the wash up from the Mehdi Kazemi case by Peter Tatchell and promised by Harriet Harman and Meg Hillier as a mechanism for when the system failed. Of course it failed at first hurdle with the removals of Babi Badikov and John Bosco.

    • Maybe this is something stonewall or other organisations might be willing to jointly fund, an organisation who will assess and support if believed peoples claim to be gay.

      I can think of several gay people with experience of asylum work who would be suited to such a role. Having discussed it with a lesbian barrister friend she was keen to be involved, though possibly not for the most altruistic motives ;)

      Seriously though I think that the idea of such a group of respected ‘experts’ would carry a lot of weight with te tribunal just as the evidence of a pastor or priest can help in a Christian case. It would also take a lot of pressure off the courts and home office and could be set up quite quickly and easily if people were willing to do it pro bono at first.

    • UKLGIG would be the obvious coordinators, although they’re in London and aren’t really national.

      Anything like this should be funded by the Home Office, not the LGBT community. The latter is what I fear will happen with any ‘training’.

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