![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044 (10 May 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00044.html Cite as: [2008] UKAIT 00044, [2008] UKAIT 44 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 25 February 2008
Date Determination notified: 10 May 2008
Before
Senior Immigration Judge Mather
Between
HJ | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
Representation
It is a question of fact to be decided on the evidence of the appellant's history and experiences as to whether a homosexual appellant "can reasonably be expected to tolerate" living discreetly in Iran. Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals in Iran who conduct their homosexual activities discreetly. The position has not deteriorated since RM and BB.
"There is no single decision… which answers this straightforward question… does it amount to persecution… if the clandestine character of the homosexual activity which there has been in the past and will be on return in the future is itself the product of fear engendered by discriminatory legislation or policing which itself violates the individual's human rights?"
"…will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for 'discretion' before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether 'discretion' is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to 'matters following from and relevant to, sexual identity' in the wider sense recognised by the High Court of Australia (see the judgement of Gummow and Hayne JJ at para 83 [S395/002 [2003] HCA 71]). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the 'discretion' which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that are 'related to or informed by their sexuality' (ibid, para 81). This is not simply generalisation; it is dealt with in the appellant's evidence."
"The question that will be before the AIT on remission will be whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgement of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB (Iran) CG [2005] UKAIT 00117. The Tribunal may wish to consider whether the combination of these two circumstances may have an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."
Persecution
5 - (1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe so as to affect an individual in a similar manner as specified in (a)…
…
(3) An act of persecution must be committed for at least one of the reasons in Article 1 (A) of the Geneva Convention.
"If there is one thing upon which all the authorities are agreed, it is that persecution is, in the words of Lord Bingham of Cornhill in Sepet and Bulbul [2003] 1 WLR 856 at paragraph 7, a 'strong word', requiring a high threshold. It has been variously expressed, but the language of McHugh and Kirby JJ [in the High Court of Australia S395/002 [2003] HCA 71, [2004] INLR 233]... - 'it would constitute persecution only if by reason of its intensity or duration the person persecuted cannot reasonably be expected to tolerate it ' – has been adopted in a number of recent authorities including Z [Z v SSHD [2005] Imm AR 75] (at paragraph 12) and Amare v SSHD [2005] EWCA Civ 1600 paragraph 27, and RG (Colombia) v SSHD [2006] EWCA Civ 57 paragraph 16."
Parties' Approach
Case law
"43. In many, perhaps the majority of cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases the well-founded fear of persecution held by the applicant is the fear that unless the person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implication that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly…"
"However the position has now been reached that criminalisation of homosexual activity between consenting adults in private is not regarded by the international community at large as acceptable. If a person wishes to engage in such activity and lives in a state which enforces a criminal law prohibiting such activity he may be able to bring himself within the definition of a refugee. That is one end of the continuum.
The other end of the continuum is the person who lives in a state in which such activity is not subjected to any degree of social disapprobation, and he is as free to engage in it as he is to breathe.
In most states, however, the position is somewhere between these two extremes. Those who wish to engage in homosexual activity are subjected to various pressures to discourage them from doing so. Some pressures may come from the state: e.g. state-subsidised advertising or teaching to discourage them from their lifestyle. Other pressures may come from other members of the community, without those members being subjected to effective sanctions by the state to discourage them. Some pressures are there all the time. Others are merely spasmodic. An occasional interference with the exercise of a human right is not necessarily a persecution. The problem which increasingly faces decision-makers is when to ascribe the word persecution to those pressures on the continuum. In this context, Mr Shaw, who appeared for the Secretary of State, reminded us of the references in Shah and Islam to the concept of serious harm and the comment of Staughton LJ in Sandralingham and Vichandran v Secretary of State for the Home Department [1996] Imm AR 97, 114, where the Lord Justice stated:
'Persecution must at least be persistent and serious ill treatment without just cause'."
"…the alignment of the State obligations imposed by the Refugee Convention with the protection of basic or fundamental human rights is subject to important qualifications. These are well-known, and are no less important than the alignment itself. First is the fact that the Convention only requires protection to be afforded in cases of particular violations of human rights norms: those arising 'for reasons of race, religion, nationality, membership of a particular sexual group or political opinion. Secondly the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution."
And further at para 31:
"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states.
While, as I certainly accept, the sense accorded to persecution might shift and stretch as the international consensus develops, the Convention's guarantees remain limited by the two conditions I have described."
Country information
"on the basis of confessions or knowledge of the judge which might arise from such matters as previous history or medical evidence or the evidence of a person who claimed to have observed homosexual acts… [a person accused of homosexual conduct] would be subjected to significant prison sentences and/or lashing."
They further concluded that:
"homosexual acts carried on in private between consenting adults are most unlikely to come to the attention of the authorities… and… that the authorities do not seek out homosexuals but rather may respond to complaints of consensual homosexual activity being carried on."
"2,148 persons were arrested for the crime of sodomy (lavat) which thankfully showed no significant growth… Most of those arrested were between fifteen and twenty years old. 9% were married men."
Ms Enayat says: "[t]his is the first time there has been any acknowledgment from Iranian establishment sources of the extent of arrests among those suspected of homosexual acts". Homosexual acts are classified as "crimes against public virtue". She concluded in her report:
"Crimes against public virtue include adultery and fornication… sodomy, tafkhiz and lesbianism… pimping, immoral relationships between a man and a woman unrelated to one another… violations of the moral code committed in public places… establishing a house of corruption… and dealing in or showing to third parties pornographic material."
Ms Enayat confirmed the view summarised in RM and BB at para 108 that little information is available on these matters given the "customary secrecy" exercised by the judiciary where moral crimes are concerned. She concluded in her report:
"It is difficult to determine whether this new information demonstrates a deterioration in the position of homosexuals over the past two or three years, or whether the situation it reflects has been constant since the 1979 revolution brought to light by better communications, in particular the internet."
She considers it impossible to say whether there has been an increase in the arrests for sodomy, given the paucity of information. However, the report she quotes as above seemed to suggest there had been no significant growth.
"after the execution in August 2005 of two young men in Mashhad, apparently but by no means certainly on charges of homosexual rape of a minor, the government of the Netherlands and the government of Sweden both suspended intended deportations of Iranian gays."
She provides examples of death sentences imposed or pending and cites a series of cases confirming the overall repressive nature of treatment and punishment of homosexuals in Iran.
"respected international human rights reports routinely remark on the uneven, arbitrary and unpredictable application of the law in Iran."
"difficult to determine whether this new information demonstrates a deterioration in the position of homosexuals over the past two to three years."
We agree. It remains clear, as it was at the time of RM and BB, that those who confess to homosexual acts or are convicted by whatever means are at real risk as they face condign punishment. The establishment of the Social Protection Division of the judiciary with its neighbourhood watch aspect is a new development. Its exact reach is not known but it is clear that its focus is on moral crimes in the wide sense used in Iran. But there is no evidence that their work is focussed particularly on homosexual conduct. Even assuming that the extent of surveillance of the private lives of citizens in Iran has increased in recent times and that homosexuality is one of the moral crimes which is subject to this increased surveillance, the evidence before us falls well short of showing that this surveillance has reached such levels that Iranian citizens who engage in homosexual activities in private run a real risk of discovery. It must also remain the case, as the Tribunal concluded in RM and BB at para 124, that given
"the legal context in which homosexuals operate in Iran, it can be expected that they would be likely to conduct themselves discreetly for fear of the obvious repercussions that will follow."
The appellant's evidence
"17. I escaped Iran because I was going to be persecuted for being a gay man. Me being homosexual is like needing food and water – it is natural for me. The only place it is not natural is in Iran. The penalties were not something I thought about. It was more important for me to pursue my right to a private life and to think and act the way I wish to. Also in my relationship with "A" it was more important for me to be with him than to think about what the police might do to me. "
"1 It is impossible for anybody who is homosexual living Iran because it is extremely important that you keep your homosexuality hidden.
2 I could never admit to people that I wanted to be in a gay relationship and that I wanted to have a future with a man and build my life with another man.
3 I would also hear about things that had happened to homosexual people in Iran on the news or through newspapers. I would hear about how they had been targeted and ill treated and knew they could quite easily be me. This would make me extremely afraid. I was always scared of being caught because I knew what the consequences were to me. However, being a homosexual is who and what I am and it is something that I cannot change and therefore I had no option but to continue practising my homosexuality even though I did so in fear. Having to live a lie every day of my life and having to live with the fear of what would happen to me if I was caught was an intolerable way for me to live in Iran."
"this is our sexual identity and it is extremely liberating for me to be able to discuss my sexual identity with other people who have the same sexual identity."
"I feel liberated by even very basic things like holding hands with "HA" in public and being able to put my arm around him in public. As I have stated earlier, I could not go back to the life that I had in Iran and this would be intolerable for me."
Court of Appeal Questions
"The penalties were not something I thought about. It was more important for me to pursue my right to a private life and to think and act the way I wanted to. Also in my relationship with "A" it was more important for me to be with him than to think about what the police might do to me."
Decision
Signed:
Mr Justice Hodge, President
Date: 18 April 2008