Two gay asylum seekers have won their right to stay in the UK following the hearing of their asylum appeal cases before the Supreme Court. The two men, HJ and HT (from Iran and Cameroon respectively) were refused asylum in this country when the Court of Appeal found that that they could avoid ill-treatment in their home countries by concealing their sexuality or behaving discreetly. The Court stated that if they behaved in such a manner they could avoid the attention of State authorities and did not therefore face a well founded fear of persecution which would have otherwise entitled them to asylum in the UK. In Cameron punishment for engaging in homosexual acts is a prison sentence between 6 months and 5 years; in Iran punishment ranges from public flogging to execution.

The Refugee Convention, to which the UK is party, provides that persons belonging to a particular social group who face a well founded fear of being persecuted if they return to their home country (due to belonging to such a group) are entitled to seek asylum in other Convention states. It is recognised that ‘social groups’ protected by the Convention can include groups with a common sexual orientation.

The decision of the Supreme Court was unanimous in deciding that the so-called ‘reasonable tolerability’ test applied by the lower court was contrary to the Refugee Convention and should not be followed in the future.  According to the judgement to force someone to deny their sexuality or suppress would be to deny them their fundamental right to be who they are.

In providing guidance to lower courts and immigration tribunals on the matter the Supreme Court stated that such asylum decisions should be based on whether the applicant would face persecution if they lived openly as a homosexual in their home country. However, where a person chose to hide their sexuality due to social or family disapproval, rather than the fear of actual persecution, this would not entitle them to asylum in terms of the Convention.

According to a report from gay rights group Stonewall the Home Office refused approximately 98% of all gay/lesbian asylum claims between 2005 and 2009. However, following on from this recent case, Home Secretary Theresa May stated “I do not believe it is acceptable to send people home and expect them to hide their sexuality to avoid persecution. From today asylum decisions will be considered under the new rules and the judgement gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case.”

Equality and refugee groups and campaigners have expressed their support for the court’s decision but there have also been calls for UK Border Agency staff to receive further training about these issues in order to be better equipped to deal with such cases in the future.

To view the decisions in full please see http://www.supremecourt.gov.uk/decided-cases/cases_2.html

To view the UK Border Agency website see http://www.ukba.homeoffice.gov.uk/

HJ (Iran) (FC) (Appellant) v Secretary of State for the Home Department [2010] UKSC 31 & HT (Cameroon) (FC) (Appellant) v Secretary of State for the Home Department [2010] UKSC 31