On 14 December 2020, the Court of Appeal in YD (Algeria) v Secretary of State for the Home Department [2020] EWCA Civ 1683 dismissed the asylum and human rights appeal of a young gay man from Algeria.

Facts of the case

YD had arrived in the UK aged 15, having been street homeless (twice) in Algeria. The second time was after being discovered in bed by the mother of his 14-year-old boyfriend. She informed his family, who threatened to kill him. 

This narrative was accepted by the First-tier Tribunal, and led to a finding of future risk of persecution in his home area. But both it and the Upper Tribunal found that YD could safely, or not unreasonably, relocate within Algeria.

In the Court of Appeal

The Court of Appeal upheld the findings of the tribunals below on internal relocation. It also held that YD could easily ‘survive’ in Algeria as a UK-qualified hairdresser without disproportionate violations of his Article 8 rights.

In dismissing YD’s appeal, the Court of Appeal also reaffirmed the troubling 2016 country guidance case of OO (gay men) Algeria CG [2016] UKUT 65 (IAC). In summarising the “test” gay asylum seekers from Algeria would need to meet, Lord Justice Lewis said:

… where a gay man had to flee his family home to avoid persecution from family members, he would attract no real risk of persecution in his place of relocation because, generally, he would not live as a gay man. It would be a question of whether the individual could show that, due to his individual circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria.

Paragraph 9

This is notwithstanding evidence of state-sanctioned persecution of gay men by the Algerian police: see the case of IL (unreported, February 2019) and my recent review of country of origin information, pages 141-157.

Going backwards on discretion

A decade ago in HJ (Iran) [2010] UKSC 3, the Supreme Court held that there is no yardstick for measuring what level of discretion is “reasonably tolerable” for a gay person. The Court of Appeal has fallen back into the old trap: at paragraphs 55 and 63, it relies on lack of psychiatric evidence to hold that YD living discretely would not amount to persecution. This recalls the historic approach — see for example RG (Colombia) [2006] EWCA Civ 57 — that was held to be incorrect in HJ (Iran).

This insistence on endogenic (internal) harm for discretion to amount to persecution was one this author had thought he had seen consigned to history amid stringent academic critique. It can lead, as it has in YD, to a search for medical and psychiatric evidence of harm, thereby seeking to medicalise Queer identities. Only a week before YD was heard, the European Court of Human Rights stepped out of this potentially toxic arena, refusing to accept the same point (expressed as “coerced concealment”) when advanced by the intervenors: B and C v Switzerland, paragraph 53.

Internal relocation to where?

The internal relocation default in OO (Algeria) was with respect to the capital, Algiers. Strangely, the identity of the home area and place of internal relocation are omitted from the determinations of both the Upper Tribunal and the Court of Appeal in YD.

Why is this significant? The appellant has to discharge the burden on proof  to address internal relocation on appeal only where the Home Office has identified the location: MB (Internal relocation – burden of proof) Albania [2019] UKUT 392 (IAC). If the Home Office had never identified the internal relocation alternative, then the appeal should have been allowed, given the finding on risk in the home area.

Getting around OO (Algeria)

Luckily, for those litigating appeals on the basis of sexual or gender identity or expression in Algeria, OO (Algeria) can now be departed from on “very strong grounds supported by cogent evidence”: SG (Iraq) [2012] EWCA Civ 940 at paragraph 47.

Such evidence exists. In Algiers itself, a bisexual medical student was murdered in February 2019, rendering the capital no longer safe for those not conforming to Islamic mores. Successive US State Department reports have highlighted state persecution from the police in Algeria. In early September 2020, two people were jailed and 42 given suspended sentences for “appearing” to attend a gay wedding.

Grim outlook for asylum generally

On the other hand, shattering the framework for refugee protection, the Home Office will soon refuse to consider asylum claims where travel has been through “safe countries“. There is also the proposed new test for granting permission by the Court of Appeal: “reasons of exceptional public interest”. The consultation deadline for the latter is 11 January 2021. Calling all “activist lawyers”… we must overcome!

A more detailed version of this case note is on the 33 Bedford Row website.

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