The Supreme Court’s HJ judgment: a case comment
“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.” (Lord Chief Justice Coleridge, R v Instan)
This article re-visits the UK Supreme Court judgment in HJ (Iran), which concerned homosexual asylum seekers and the 1951 Convention Relating to the Status of Refugees (Refugee Convention). It takes a look at the significance of the case in light of subsequent domestic and European Union case law, as well as changes to the UK asylum policy. This commentary seeks to contribute to existing literature by considering the recent unsuccessful asylum claim of a homosexual.
The homosexual claimants, HJ and HT, appeared before the Supreme Court after the Court of Appeal dismissed their appeals challenging the Secretary of State for the Home Department (SSHD)’s refusal to grant them asylum.
HJ was an Iranian and, essentially, the Asylum and Immigration Tribunal held that he could reasonably be expected to behave discreetly as to his homosexual activity back in Iran. As to HT, the tribunal found that he would conceal his homosexual identity if he returned to Cameroon; alternatively, he could move to a different part of Cameroon where his sexual orientation would be unknown. In other words, both HJ and HT could avoid being persecuted.
Therefore, neither of them satisfied the lower courts that they had a “well-founded fear of being persecuted” as per article 1(a)(2) of the Refugee Convention. They were not granted refugee status.
It was common ground that “persecution” for the purpose of refugee protection needs to be excessive. It was also accepted that homosexuals constituted “membership of a particular social group”, as per article 1(a)(2) of the Refugee Convention.
Accordingly, one of the most central legal issues was whether the “reasonable tolerability” test formerly established by the Court of Appeal in J remained good authority. The test considered “whether it would be objectively reasonable for the [asylum seeker] to be expected to tolerate some element of concealment [in his home country]”.
The SSHD argued that the test was “correctly applied” because it accorded with the language of the Refugee Convention and did not treat homosexual asylum seekers differently. The SSHD emphasised that the focus was on the applicant’s conduct on return. However, the claimants contended that a holistic approach should be employed in interpreting the convention — which was to provide “surrogate protection” as opposed to “assuag[ing] subjective fear”.
A second substantive issue relates to the jurisprudential basis of the Refugee Convention: to protect “fundamental rights and freedoms” and “counteract discrimination”.
The focus of HJ’s case was that a person’s sexual orientation was so fundamental to his identity that it must be respected. In HT’s case, it was argued it would contradict the very purpose of the convention if the claimant were to “hid[e], conceal or renounce[e]” his sexual orientation. Nevertheless, the SSHD contended that the convention did not exclude the notion of “avoid[ance]”. Thus, it was “consistent” with the essence of the convention to say that an asylum seeker could “avoid” persecution by concealing his sexuality.
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Another issue concerned whether an asylum seeker still qualified as a refugee if he might conceal his sexuality on return. Here, the second applicant rejected this “internal relocation” argument. The additional explanation was that refugee status should be measured against “[i]nternational human rights norms” and not “by cultural relativism” within a country.
In giving the lead judgment, Lord Hope criticised the “reasonably tolerable test” in J — to the extent that it was “a fundamental error”. As part of the court’s reasoning, it was held that if concealment were to be allowed, this would fundamentally violate the very purpose of the Refugee Convention in offering surrogate protection to those who would otherwise experience severe persecution in their home country. The “internal relocation” argument also failed because the court was not convinced that the risk of persecution would disappear because of any concealment. Further criticisms were made about the limitations in the Court of Appeal’s reasoning in J. Accordingly, the precedent set by the Court of Appeal has been overruled.
Then, the Supreme Court established a five-stage test to determine whether an asylum seeker qualified for refugee protection.
(1) The applicant has to establish that he is gay.
(2) Courts look into the situation the applicant will face on return to his country of origin by referring to the Home Office’s Country Information and Guidance report. Here, the court was satisfied that it was reasonable for both applicants to fear persecution if returned to Iran and Cameroon respectively.
(3) Courts consider each individual’s conduct (in this instance, sexuality) on return.
(4) If the individual acts openly, hence the risk of persecution, he will qualify for refugee status: “he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal.”
(5) Alternatively, if he will conceal his conduct, and if the reason for that is due to fear of persecution, he will equally qualify.
The Supreme Court, not being confident that a fact-finding tribunal would have come to the conclusion as the first instance courts here had done, overturned the Court of Appeal’s decision and allowed the appeals.
Legal and policy significance
What are the policy changes after the Supreme Court overruled the Court of Appeal’s precedent in J?
Regarding the UK asylum policy itself, then Prime Minister, David Cameron, stated that the government “will stop deport[ing] asylum seekers who [left] particular countries because their sexual orientation… puts them at proven risk.”
In the most recent Asylum Policy Instruction, the Home Office also stipulated that the reasonable tolerability test no longer applies. Therefore, insofar as writing is concerned, it is clear that the UK asylum policy has changed in accordance with the Supreme Court’s guidance in HJ.
However, this observation is problematised if we look at the recent case of Kityo, a gay Ugandan asylum seeker. His asylum claim was rejected, and the Home Office noted in the decision letter that “[i]t is not accepted that [he is] a homosexual and an openly gay man.” The concept of being openly gay clearly went against the Supreme Court’s ruling in discussion and poses questions as to whether the reasonable tolerability test is still being used. Currently, a petition to the Home Secretary is prepared and signed by more than 6000 individuals; and it is yet to see how the case will develop.
The next issue concerns policy implementation following HJ. The Home Office has updated and issued an Asylum Policy Instruction, providing guidance as to how interviewers and case workers should conduct initial interviews with asylum seekers who claim to be homosexual.
Sadly, this has proved to be of limited use. A 2014 Independent Chief Inspector of Borders and Immigration inspection report solidly criticised that 11% of reviewed interviews contained “unsatisfactory questions”. On top of questions which were stereotyping, asylum seekers were faced with irrelevant and highly intrusive and humiliating questions. The following were questions actually asked in some of the interviews.
(1) Were there ever any occasions when you were almost discovered or disturbed during your intimate moments?
(2) I just think you were taking a huge risk of choosing to have sex in the sitting room given the potential consequences to you. Please comment?
(3)What sexual activities did you do with your girlfriends?
(4) [responding to evidence about an early lesbian relationship] How often would you kiss and masturbate approximately over a week?
(5) [responding to evidence about being raped repeatedly in prison] I don’t think you understand my question, when the officers started to rape you, do you remember how long this lasted for from beginning to end?
(6) From the surveys I have read on relationships, normally not even heterosexual relationships (men with women) have sex everyday, this could also be said of gay and lesbian couples, why did you feel the need to have sex every day when you were on vacation when you knew at the time it was a taboo in Ghana?
Notwithstanding courts’ commitment to providing surrogate protection in HJ, or fundamental human rights protection by the Court of Justice of the EU (CJEU), homosexual asylum seekers’ sexual identity (a protected fundamental right) is not duly respected or dignified. It is also important to bear in mind that not everyone was granted refugee status following their interviews.
It is also worth exploring the policy consideration behind the Supreme Court’s decision.
Buxton was reluctant to accept that the protected interest here is “access to fundamental rights” — the proposition that an individual should not be expected to hide or change a fundamental aspect of their identity (i.e. sexual orientation). Logically he referred to Lord Hope’s reasoning (where it was emphasised the exercise was not to “reform the level of rights” in individual countries) and argued that this was “surrogate protection from persecution”.
However, in light of the legal development after HJ, one should be cautious not to take Buxton’s comment for granted. HJ is a legally significant decision in that it has influenced subsequent national and CJEU judgments. The UK courts, including in SA (Pakistan), RT (Zimbabwe) and MI (Pakistan), have continued to apply the reasoning in HJ.
Its reasoning has also been applied in a subsequent country guidance case concerning other convention grounds — that of religion. In MN, it was held that an Ahmadi must not be expected to conceal their religious practice to avoid severe persecution.
[A]n applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.
Importantly, the CJEU stated that any applicable national legislation that punishes homosexual acts “infringes article 8 of the European Convention on Human Rights [and] article 7 of the Charter.” Thus, it is clear that as a matter of legal implication, courts are now approaching the question in HJ with fundamental rights considerations in mind.
In this connection, Advocate General Sharpston expressed that:
[W]hen verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter.
It is yet to see how Sharpston’s opinion and/or the report’s recommendations will in turn affect the UK asylum policy.
Above all, the Home Office, as a principal asylum policy maker, must recognise that the legal importance of HJ at both domestic and EU levels. It is imperative that the Home Office ensures that each of their caseworkers and decision-makers is well aware of, and abides by, the Supreme Court’s new test, and endeavours to protect the fundamental rights of all asylum seekers.
Ultimately, HJ and its legal and policy implications manifest the irony for vulnerable homosexual asylum seekers fleeing severe persecution in their home countries. On the one hand, the judiciaries seek to ensure that our asylum system stands up to modern international human rights standards and is able to offer protection to those who are entitled. On the other hand, as a matter of policy implementation, the Home Office has undermined, if not sabotaged, the courts’ efforts, and consequently turned away those who are desperate for refugee protection.
Jacky Cheng is a law graduate from Oxford Brookes. He is now a research assistant.
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