Supreme Court rules in favour of LGBT asylum rights
Lord Hope, who read out the judgment, said: “To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny his fundamental right to be who he is.” reported at BBC, with video Lord Hope reading judgement
From Pink News: The pair took their cases to the court after being told by the Home Office they could safely return home if they were “discreet” about their sexual orientation. The Cameroonian man, HT, argued he was told he could be sent home despite being attacked after he was seen kissing his partner. The Iranian man, HJ, was told by a tribunal that he must expect persecution for his homosexuality and could avoid it by being discreet.
Simon Lewis at The Guardian: this judgment could have an impact beyond LGBT claims http://bit.ly/8ZIoo5 And for background see LGBT Asylum News. You can download the judgment here (pdf) and see here for Home Office statement
Bernard Keenan, immigration law practitioner writes at Liberty Central at the Guardian that this case represents a milestone in legal history, secures the rights of LGBT people in need of protection from persecution, and will bring to an end to years of discriminatory policy by the immigration services. He outlines the new approach for asylum appeal tribunals to follow:
- Firstly, is the appellant gay, or someone who would be treated as gay by potential persecutors in his or her home country?
- Secondly, is there evidence that someone who lived an openly gay life would be at risk of persecution in that country? Discrimination is not enough – the Refugee Convention doesn’t exist to protect people from unpleasant social pressures or allow for more liberal lifestyles in the host country. Persecution means more serious harm, and clearly not every country in the world will hold such a high risk as others.
- Thirdly, how would the appellant actually live if returned? If they would live openly, then clearly they are a refugee. But if they would live “discreetly”, a fourth question must be asked: why will they exercise “discretion”? If it is simply to avoid social pressure, family shame, or some discrimination, then the claim will fail. But if a fear of persecution plays any material part in the decision to hide, then the appellant is a refugee.
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.’ read more from EHRC