The definition of refugee includes those who are members of a particular social group. Section 1 of the Refugee Act 1996 defines this ground as including (amongst others) those persecuted for reasons of their sexual orientation. In a recent United Kingdom Supreme Court decision, HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department the question that arose was whether a person had to be ‘discrete’ in relation to their sexuality so as to avoid persecution by the state. The High Court and Court of Appeal for England and Wales response to this question was ‘yes’. The UK Supreme Court, however, rejected this approach. Lord Roger (at para. 76) inverted the question posed in this case, questioning whether:
a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.
Fiona de Londras noted in a previous post, how Irish decision makers were finding against the credibility of refugee applicants for not knowing or being involved in the gay rights movement or arguing that they could be ‘discrete’ if returned to their countries of origin. This is a wholly incorrect approach to follow. It debases human dignity to an extent that is intolerable. The approach of the UK Supreme Court is more in line with the object and purpose of the Refugee Convention and ensuring that as a living instrument it continues to have relevance to forms of persecution against emerging social groups. In deciding whether an asylum seeker, who bases his/her claim on sexual orientation, the test set down by Lord Roger as to how this claim should be assessed is useful (at para. 82 of his judgment):
- The tribunal must first ask itself whether it was satisfied that an applicant is, or would be treated as gay by potential persecutors in his home country. If so,
- the tribunal then has to ask itself whether it was satisfied that gay people who lived openly would be liable to persecution. If so,
- the tribunal should consider what the individual applicant would do if returned to that country. If the asylum seeker would live openly and thereby be exposed to a real risk of persecution, then s/he had a well-founded fear of persecution, even if the risk could be avoided by living “discreetly”. If, on the other hand, the tribunal concluded that the applicant would in fact live discreetly and so avoid persecution, it had to go on to ask itself why s/he would do so.
- If it concluded that the applicant would choose to live discreetly simply because that was how he wished to live, or because of social pressures, such as not wanting to distress his parents or embarrass his friends, his/her application should be rejected. Social pressures of that kind did not amount to persecution and the Refugee Convention did not offer protection against them.
- If, on the other hand, the tribunal concluded that a material reason for the applicant living discreetly would be a fear of the persecution which would follow if s/he were to live openly, then, other things being equal, the application should succeed.