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Cite as:  UKAIT 00001,  UKAIT 1
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AJ (Risk to Homosexuals) Afghanistan CG  UKAIT 00001
Date of hearing: 28 October 2008
Date Determination notified: 05 January 2009
|Secretary of State for the Home Department||RESPONDENT|
1. Though homosexuality remains illegal in Afghanistan, the evidence of its prevalence especially in the Pashtun culture, contrasted with the absence of criminal convictions after the fall of the Taliban, demonstrates a lack of appetite by the Government to prosecute.
2. Some conduct that would be seen in the West as a manifestation of homosexuality is not necessarily interpreted in such a way in Afghan society.
3. A homosexual returning to Afghanistan would normally seek to keep his homosexuality private and to avoid coming to public attention. He would normally be able to do so, and hence avoid any real risk of persecution by the state, without the need to suppress his sexuality or sexual identity to an extent that he could not reasonably be expected to tolerate.
4. So far as non-state actors are concerned, a practising homosexual on return to Kabul who would not attract or seek to cause public outrage would not face a real risk of persecution.
5. If some individual, or some gay lobby, tried to make a political point in public or otherwise behaved in a way such as to attract public outrage, then there might be a sharp response from the Government.
6. A homosexual may be relatively safe in a big city (especially Kabul) and it would take cogent evidence in a particular case to demonstrate otherwise. The position in smaller towns and in rural areas could be different and will depend on the evidence in a specific case.
7. Relocation to Kabul is generally a viable option for homosexuals who have experienced problems elsewhere, though individual factors will have to be taken into account.
8. The evidence shows that a considerable proportion of Afghan men may have had some homosexual experience without having a homosexual preference. A careful assessment of the credibility of a claim to be a practising homosexual and the extent of it is particularly important. The evaluation of an appellant's behaviour in the UK may well be significant.
History of the Appeal
"18. The Appellant's claim is based upon his homosexual activities in Afghanistan. This occurred in the period between 1998 when the family moved into Jalalabad and April 2001 when the Appellant left Afghanistan. His story is that a few months after returning to Afghanistan he met Mr K, who was about nine years older than him, and started a homosexual relationship. This was disapproved by his parents but he continued it and then in 2001 it brought trouble. The Taliban were in power in Afghanistan at that time and enforced Sharia law very strictly. Homosexual activities were taboo. Gay people could expect very severe punishment from the Taliban if they were caught.
19. In the early part of 2001 someone told the Taliban about a homosexual relationship between the Appellant and Mr K. The local Taliban leaders sent a messenger and called in the Appellant's father who was given lectures on his son's homosexual activities and was warned that he could possibly face a death sentence. Despite this the affair continued and eventually the Appellant's parents were asked to hand him over to the Taliban. They refused and they were killed and his younger brother disappeared and was probably killed. It was as a result of that that the Appellant left Afghanistan on 15 April 2001 and started his journeys to Mozambique and South Africa. I find that the Appellant's claim is plausible. He claims to have realised that he had homosexual tendencies whilst he was in Pakistan. He also claims to have been involved in gay relationships in the UK. There is therefore a thread of consistency running through his story and there is no reason to disbelieve it."
"The appeal against the determination of the AIT dated 9 June 2006 be allowed to the extent that the appeal be remitted to the AIT for the latter to carry out a second stage reconsideration of the Appellant's appeal limited to determining whether the Appellant faces a real risk of persecution by reason of his homosexuality and/or the restrictions on his ability to live in Afghanistan as a practising homosexual."
"9 Whilst it is not accepted by the Respondent that any other matters expressly raised in the Appellant's grounds give rise to arguable errors of law, it is accepted that it is arguable the Adjudicator appears not to have considered whether any obligation on the Appellant to practise homosexuality "discreetly" in order to avoid persecution, could itself amount to persecution.
10. Although the Appellant never appears to have argued or provided evidence, whether before the Adjudicator/AIT, that the requirement to act "discreetly" would amount to persecution, it is arguable that the Adjudicator should have made a finding as to whether any restrictions on his ability to live as a homosexual amounted to persecution.
11. On this basis the parties have agreed that the appropriate course is for the matter to be remitted to a differently constituted AIT, who can then consider whether, having regard to the objective evidence, the Appellant faces a real risk of persecution by reason of his homosexuality and/or the restrictions on his ability to live as a practising homosexual."
The Expert Evidence
1. Catamite (Koni, Sesth) - Many young boys are sodomised who may not agree to it out of love for the active partner but can be persuaded for various reasons to consent, though they are not professional male prostitutes. News of this is very often reported in Afghan society.
2. Beloved (Mehboob, Meshooq, Ashna) - Mature men (both married and bachelors) keep younger boys as friends. In this relationship it is not necessary that sex takes place. If sex does take place it is usually with consent. The mature male is the active partner and the kept boy is the passive partner.
3. Friend (Yari) - This is a relationship between the two boys of the same age who may feel affection for each other. Essentially sex does not take place in the majority of cases but there is a possibility that it will. If it does it is regarded as consensual. Yari is almost as popular as love affairs between male and female for example in universities and other places. They are not regarded as homosexual in the sense that this is understood in the United Kingdom. They are heterosexuals and after attaining marriageable age they marry women.
4. Eunuchs (Hijara) – There is a long tradition of eunuchs in Afghanistan. In some cases they are sodomised but usually they dance and sing. In big cities they are more likely to provide massages and sex.
"2.3.1 I feel, as indicated above, if someone declares himself as gay or wants a gay relationship, he will be persecuted. A man can be a gay secretly but the minute it is known there will be a serious risk of persecution by state and non-state actors. In general, family members feel ashamed of a gay person in the family and his membership is regarded as a stigma on the family. If family feel the same about catamites but there is a subtle difference between gays and catamites. Gays want to live life as a gay person whereas catamites are usually young boys who can be persuaded for different reasons to have sex with another male. ….
2.3.2 Geography and who rules the country are also important factors. If a gay person is living in a big city, it might be relatively safe and there is greater possibility the gay relationships might be kept secret for longer periods. If he is in town/village, it will be difficult to keep it secret and once it is discovered the reaction from non-state actors will be very strong. The question of who is ruling the country or a particular Providence is very relevant. If the rulers are Taliban or other religious parties, persecution and death is certain. Taliban killed several people on the ground of homosexuality. If the government of Afghanistan is secular and liberal the chances of official persecution is not very likely but they may be prosecuted under article 427 of the Afghan Penal Code if caught red-handed or if the matter is reported to police. Non-state actors will also be a real threat to gay persons.
2.4.1 Homosexuality was and is practised in Afghan society. The attitude of society is hypocritical. If homosexuality is secret or not discussed openly then it is tolerated. Homosexuals are generally not respected. If two males are caught in the act of sex and the fact is made public, it could lead to serious consequences as it then becomes a matter of family honour. Serious consequences include death by non-state agents. As indicated above, social status and wealth play a role in determining the nature of the dispute between the families of the two males involved.
2.4.2 I do not think that Afghan society as a whole is familiar with the concept of gays: consenting adults to sexual relationship living together Ramón as understood in the United Kingdom… as indicated above both gays and lesbians will be seriously persecuted by non-state actors (as it is regarded against Islam) and prosecuted by police under the Afghan Penal Code."
2.2.2 The punishment mentioned in article 427 for sodomy and homosexuality is only a tazir punishment (punishment which is not fixed by the Koran or Sunnah, the two primary sources of Islamic law, where the court has discretion). Those committing crimes of Had, Qisas and Diyat (cases where punishment is fixed by the Koran and Sunnah where the court has no discretion) shall be punished according to the provisions of the Hanafi School of Islamic law…..
2.2.3 ….. The view of Imam Abdul Hanifa, the founder of Hanafi school, is noted in the authoritative book of Hanafi law. Imam Abu Hanifa says that there is no fixed penalty (Had) for sodomy, and therefore the accused should be corrected by tazir… the view of Imam Abu Hanifa in general prevails over all other views in the Hanafi tradition. The penal code of Afghanistan 1976 is mainly based upon the views of Imam Abu Hanifa which is why article 427 treats sodomy as tazir crime and is punishable with "long imprisonment" instead of the death penalty. It is a matter for the discretion of the court having regard to the circumstances of each case."
"13. Given the legal position concerning homosexuality, any open display of someone's homosexuality would be extremely dangerous. In seven years of frequent visits to Afghanistan I have never met any Afghan who would admit to being homosexual. The general opinion seems to be that homosexuality is a western phenomenon which does not exist in Afghanistan and that the few cases which do occur have to be punished harshly as a matter of Islamic law. In my opinion an openly gay man would be ostracised by society and would sooner or later come in conflict with the law. If convicted, the punishment would involve long imprisonment, perhaps even death.
14. In conclusion, in my opinion homosexuality is an offence under Afghan law. There is evidence showing that there have been convictions where homosexual conduct thus confirming that the offence does not only exist on "paper". In my opinion it would be quite impossible to be openly gay in Afghanistan because of societal disapproval and official prosecution."
"It seems uncontroversial that under Islamic law homosexual behaviour is condemned and falls into the category of adultery (zina) as it is considered to be sex with an illicit partner. In national statutory legislation consensual sexual activities with a person of the same sex is not regulated as being an offence. Some juveniles charged with homosexual behaviour were very young. One juvenile that is charged under this category is 11 years old and therefore under the age of criminal responsibility, one other juvenile is 13 and one 14 years old. It thus seems probable that some juveniles charged with homosexual behaviour are rather victims of rape or forced prostitution than having engaged in consensual sexual activities. Since the lines between the two acts are undefined in Afghanistan it is common that the victims of a moral offence are arrested and detained; victims of rape are treated as persons having committed the crime until proved innocent."
"4… The last known execution for homosexual practices dates back to the Taliban period. Prison sentences are still handed out to homosexuals. For example in 2002-2003 79 individuals have been arrested for homosexuality in Afghanistan according to the figures of the Ministry of Interior. In 2003-2004 the number rose to 111 and in 2004-2005 to 124. I could not find any figures for 2005-2006 but in 2006-2007 the number of crimes of homosexuality recorded by the Attorney General's office was 159. By no means were these cases concentrated in the provinces. In 2002-2003 there were 11 cases in Kabul, with another in 11 cases reported in 2003 -2004, 36 in 2004-2005 and 25 in 2006-2007. In 2004 even an American adviser to the Afghan government was reportedly arrested for having a homosexual relationship with an Afghan man.
5. Since the reach of the government is very limited and rarely extends beyond the cities and the main administrative centres, in the countryside Islamic law is most often is still applied, which means that their homosexuality would still be punished with death. I do not know of any case of homosexual [sic] executed in the villages but I have heard of several executions of adulterers in the villages on the basis of Sharia law. Given the cultural context, outlined below, the possibility of summary executions of homosexuals seems to be very real….
6. With regard to non-state actors, in Afghanistan attitudes towards homosexuality vary between the religious establishment and the tribal one. The attitude of the clergy is very negative, as the practice of it is condemned by religious laws. On the other hand among several Pashtun tribes homosexual practices have long existed, especially among the warrior elite. In the tribal environments sex between men is acceptable as long as those indulging in it are also married and have children. They are also expected not to give publicity to their sexual conduct. It is also considered shameful to serve in the passive role. This is why senior members of the tribe use young men and boys as lovers, who can then leave behind the shame of the passive ("female") role by taking over one day the male role as they grow older. What is not acceptable even in tribal Afghanistan is homosexual couples, who refused to marry women and indulge exclusively in consensual homosexual relations. Generally it is not acceptable for a non-married man to start a relationship with another man, except as his junior partner."
10. Kabul city itself is not safe from the abuses of the security forces. Throughout 2003 and 2004, the situation in terms of policing in Kabul has improved somewhat, due to the completion of the training of the first few batches of recruits at the Police Academy and to a larger plan to train existing policeman. However UN police advisers agree that on the whole the effectiveness of such training programs has been very limited….
11. From late 2004 a deterioration of security has been reported in the number of provinces including Kabul….
12. Corruption is rife within the police force as the staff tries to make up for low income by asking bribes or imposing arbitrary taxes on the population..
13. In conclusion [the Appellant] would be punishable with imprisonment in Afghanistan if his homosexuality was known to the authorities. The conditions of Afghanistan's jails are still well below international standards and given the record of abuses of the police and the cultural attitudes prevailing in the country, it is likely that [he] would be subjected to a even worse treatment than the average prisoner."
"10. It is not difficult to track people down in Afghanistan, although it might take some time. Neighbours and landlords will check people's backgrounds, because everyone thinks in terms of security, and so they would want to check the newcomer's background in their home area. Further, messages are sent across the country via chains of communications based on personal contacts, and it would be natural to investigate where someone was from in order to see what role they could play in such a network. The Postal Service's unreliable and only delivers to the district centres, not the villages, so that travellers are often used to deliver messages and goods to relatives and friends."
The Other Objective Evidence
"A Danish fact-finding report of June 2004 reported that according to the UNHCR and the Cooperation Centre for Afghanistan homosexuality is forbidden in Afghanistan. UNHCR noted that it is difficult to say anything definite about conditions for homosexuals because there is no one who is prepared to declare that he is a homosexual or whose homosexuality is publicly known. The CCA knew of the existence of homosexuals but had never heard about homosexuals being punished. UNHCR were unaware of any cases under the new government in which homosexuals had been punished. UNHCR also noted however that behaviour between men which would arouse curiosity in many Western countries such as holding hands, kissing or embracing is not considered explicitly sexual behaviour in Afghanistan. UNHCR were of the view that homosexuality was common in Afghanistan due to the strong degree of separation between the sexes. Moreover according to the source homosexuals do not have problems provided they can keep their sexual orientation secret and do not overstep other social norms within their family. For example men of homosexual orientation can be forced into marriage and a possible conflict with only arise if the man refused to marry.
The Relevant Law
"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
"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  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  HCA 71,  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 ImmAR 75] (at paragraph 12) and Amare v SSHD  EWCA Civ 1600 paragraph 27, and RG (Colombia) v SSHD  EWCA Civ 57 paragraph 16."
39. We take as our starting point that when assessing whether a person who is a homosexual would face risk of persecution or serious harm on return to his own country we must take a factual, not a normative approach. That is to say we must focus on the factual issue of how it is likely he will behave given the evidence we have about how and why he has behaved up to now. It is wrong for a decision-maker to apply a normative approach which focuses on how it is thought an applicant should behave. However, we take from the way in which the Court of Appeal has formulated its questions that in examining how such a person will behave we have to examine whether that will entail for him having to live a life which he cannot reasonably be expected to tolerate because to do so would entail suppression of many aspects of his sexual identity. We are confident that when referring to what an appellant can "reasonably be expected to tolerate" the Court of Appeal had in mind an objective, not a subjective test.
7. It is on the basis of these findings that it is accepted by Mr Nicholson that not every active Iranian homosexual is entitled to asylum in this country. If homosexuals in Iran are discreet, there is no real risk of their being apprehended and punished. If they have previously been arrested or are wanted by the authorities on account of their homosexual activities, different questions arise. In the present case, however, as has been seen, the Immigration Judge rejected the Appellant's claim to be wanted on account of his affair with A.
8. However, discretion and clandestine sexual behaviour are not complete answers to the issues that may arise in cases such as the present. If the Appellant is returned to Iran, he will have to carry out his sexual activities clandestinely. A persecutory situation is capable of existing by reason of the fear and stress engendered by that risk. That was considered by the Court of Appeal in J  EWCA Civ 1238, an appeal which was confined to the application of the Asylum Convention to the appellant's claim: his Convention rights were not addressed. Maurice Kay LJ, in a judgment with which the other members of the Court of Appeal agreed, referred to the decision of the High Court of Australia in S395/2002  HCA 71 and said:
10. In our jurisdiction Lord Justice Buxton demonstrated in Z v SSHD  Imm AR 75 that the approach of the High Court of Australia had in turn been influenced by English authority, particularly Ahmed v SSHD  INLR 1. Having referred to the judgment of Simon Brown LJ in Ahmed, he said at paragraph 16:
"It necessarily follows from that analysis that a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution."
11. That brief extract is particularly helpful because it brings together the principle articulated by the High Court of Australia and the underlying need for an applicant to establish that his case contains something "sufficiently significant in itself to place him in a situation of persecution". 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  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 to which I have referred – "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 (at paragraph 12) and Amare v SSHD  EWCA Civ 1600, paragraph 27, and RG (Columbia) v SSHD  EWCA Civ 57, paragraph 16.
16. In the present circumstances, the further reconsideration should be by a differently constituted Tribunal. It 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 judgment of Gummer and Hayne JJ at paragraph 83). 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 "related to or informed by their sexuality" (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence.
9. Buxton LJ said:
20. I would only venture to add one point. The question that will be before the AIT on remission will be whether the applicant could 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 judgment 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 RN and BB. The Tribunal may wish to consider whether the combination of those two circumstances has 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.
10. Whether the issue whether an applicant can reasonably be expected to tolerate his personal or family circumstances if he is returned to his country of nationality is more appropriately considered under the Asylum Convention or under Articles 3, and more particularly 8, of the European Convention on Human Rights is something that it is unnecessary to decide. So far as the Asylum Convention is concerned, however, I would place emphasis on paragraph 11 of Maurice Kay LJ's judgment and the requirement of persecution.
11. The remitted appeal of J was heard by the AIT in February 2008 and the decision of the President, sitting with Senior Immigration Judges Storey and Mather, is reported as HJ (homosexuality: reasonably tolerating living discreetly) Iran  UKAIT 00044. The Tribunal's determination is summarised as follows:
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.
12. The Tribunal stated:
41. In his witness statement of 10 February 2007 and in his evidence before us the appellant has claimed that living discreetly as a homosexual in Iran was for him a matter of living in extreme fear and of having to live a lie every day of his life. However, we prefer the evidence he gave in his statement in 2001 immediately on or after his arrival - and when his past in Iran was fresher in his mind - when he said of his homosexuality 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 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."
42. It was clearly possible for the appellant to live in Iran, from the age of fifteen to his leaving at the age of thirty one, as a gay man without discovery or adverse consequences. In our judgment the appellant was able to conduct his homosexual activities in Iran in the way that he wanted to and without any serious detriment to his own private and social life. The evidence does not indicate that he experienced the constraints Iranian society placed on homosexual activity as oppressive or as constraints that he could not reasonably be expected to tolerate.
44. We acknowledge that the way in which he is able to live as a gay man in the UK is preferable for him and we are satisfied that this informs his view that it is "impossible" for him to return to Iran. We acknowledge too that the appellant is now much more aware of the legal prohibitions on homosexuals in Iran and the potential punishments for breach of those prohibitions. On any return, to avoid coming to the attention of the authorities because of his homosexuality he would necessarily have to act discreetly in relation to it. We are satisfied that as a matter of fact he would behave discreetly. On the evidence he was able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity. Whilst he has conducted his homosexual activities in the UK less discreetly, we are not persuaded that his adaptation back to life in Iran would be something he could not reasonably be expected to tolerate. We consider that as a matter of fact he would behave in similar fashion as he did before he left Iran and that in doing so he would, as before, be able to seek out homosexual relationships through work or friends without real risk to his safety or serious detriment to his personal identity and without this involving for him suppression of many aspects of his sexual identity.
45. The evidence of suppression of aspects of the appellant's life in Iran in comparison to his life in the UK is limited. In Iran he could not go to gay clubs as he can in the UK. Public displays of affection to a homosexual partner may lead to a risk of being reported to the authorities which is not so in the UK. The appellant's ability to be open about his sexuality as has been the case in the UK was not possible for him throughout his thirteen adult years in Iran and three years as a minor. But he did have friends who knew of his sexuality, he was able to socialise with them and he was able to tell his family. If a wish to avoid persecution was ever a reason why he acted discreetly in Iran it was not, on the evidence, the sole or main reason. It is difficult to see on the evidence that a return to that way of living can properly be characterised as likely to result in an abandonment of the appellant's sexual identity. To live as the appellant did for thirteen years did not expose him to danger. The appellant may well live in fear on return to Iran now he is aware of the penalties which might be arbitrarily imposed were he to be discovered. The question as to whether such fear reaches so substantial a level of seriousness as to require international protection has to be considered objectively and in the light of the evidence as we have found it to be. Homosexuals may wish to, but cannot, live openly in Iran as is the case in many countries. The conclusions in RM and BB as to risk remain the same. This appellant was able to live in Iran during his adult life until he left in a way which meant he was able to express his sexuality albeit in a more limited way than he can do elsewhere. In particular we have regard to the fact that the evidence as found shows that the appellant's sexuality was not known to the authorities when he left Iran. Objectively we cannot see that the level of seriousness required for international protection is in this case reached.
46. Buxton LJ describes the question before this Tribunal as "whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran"; and further " the applicant may have to abandon part of his sexual identity…in circumstances where failure to do that exposes him to extreme danger". The circumstances to be tolerated are the inability to live openly as a gay man as the appellant can in the UK. The part of sexuality to be abandoned is on the evidence also the ability to live openly as a gay man in the same way the appellant can do elsewhere. To live a private life discreetly will not cause significant detriment to his right to respect for private life, nor will it involve suppression of many aspects of his sexual identity. 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. On the evidence we find the appellant can reasonably be expected to tolerate the position on any return.
Accordingly, the appeal was dismissed.
13. In the present case, the relevant part of the Immigration Judge's determination is in paragraphs 61 and 62:
"61. I do not accept that the Appellant, simply on the basis that he is a homosexual, would be at risk of treatment that amounts to persecution or breaches his human rights, if he is returned to Iran. Although I accept he is a homosexual and does form part of a particular social group in Iran, he is not entitled for his appeal to succeed simply on that basis. Mr Nicholson implies that the Appellant's appeal should succeed because the Appellant would have to abandon his sexual identity upon returning to Iran. I do not accept that this is the case. The Appellant does not simply abandon his sexual identity if he is required to carry on his sexual activities with a same-sex partner with some care or discretion. All persons, of whatever sex, involved in intimate relationships conduct themselves with such care and discretion. It is clear from the Appellant's own evidence that he conducted his own sexual relationship with Mustafa with some care and discretion as he was fully aware of the likely result of such activity coming to the attention of the Iranian authorities. It is therefore not reasonably likely that he would be careless or indiscreet regarding his sexual activities, if they resumed upon his return to Iran.
62. There is no evidence to suggest that the Appellant came to the attention of the authorities on account of any political or religious activity and as such he has no profile which would bring him to the attention of the Iranian authorities if he is returned there. I do not accept that the Iranian authorities are aware of his homosexual activity and therefore they would have no interest in him if he is returned to Iran."
14. It is correct that the Immigration Judge did not expressly consider the question posed in J. However, it is clear from his findings that for a number of years the Appellant carried on an active sexual relationship with A. The reason he left Iran was not stated by him to be his intolerable situation as a clandestine homosexual, but his fear of arrest and punishment because of the detection of his relationship and the arrest of A. He was disbelieved on the basis for his alleged fear. It was for him to establish that he could not reasonably be expected to tolerate his condition if he were returned to Iran. He did not establish, or even assert, facts on which such a finding could be based. Mr Nicholson stressed his situation as a young man living with his family, unable to carry on his sexual activity at home and having to resort to public baths. However, there is no finding that on return he would resume his relationship with A, and no finding that if he did they could not resume their sexual life in the same manner as before. Mr Nicholson's contentions involved speculation for which the groundwork had not been established before the Immigration Judge.
Our General Conclusions
1. Both Islamic law and the Afghan penal code (Article 247) criminalise pederasty/sodomy without distinction, save that under Article 247 if one of the parties is under 18 it is an aggravating factor. Dr Lau suggested that although the term "pederasty" appears in the official English translation of Article 247 in context a better translation would be sodomy. UK law has decriminalised homosexual acts between consenting adults, but regards paedophilia as a very serious offence.
2. Article 247 prescribes "long imprisonment" for an offence, which leaves judicial discretion. Dr Shah opines that the Hanafite School, which is dominant in Afghanistan, considers the death penalty would not be appropriate under Islamic law either but would impose long imprisonment. Under UK law adults engaging in sex with under age boys could face lengthy imprisonment.
3. In Afghan society there is a tacit acceptance of the various types of homosexual behaviour described by Dr Shah, including sex with under age boys provided it is not conducted openly and particularly if it is consensual. Such acceptance, particularly outside the big cities, would be unlikely for adult males who chose to live together as adults to the exclusion of women. In the UK there is strong social condemnation of paedophilia.
4. In Afghan society men and boys who engage in homosexual behaviour due to the constraints of access to females, would not regard themselves as homosexual but heterosexual, even if after marriage they continue to engage in homosexual activity. In the UK, there is more open interaction between males and females and hence a clearer distinction between homosexuals and heterosexuals.
"3.2.1 Homosexuality is practised and tolerated as long as it remains secret. Usually, homosexuality is an open secret but once it is made public, it could lead to persecution and prosecution by state and non-state agents.
3.2.4 The society regards homosexuality as a shame and unIslamic but is tolerated in its various forms. Homosexuals are not respected. Open declaration of being gay and lesbian will outrage the society."
"It is important to note that many asylum seekers of Afghan origin tend to identify themselves as gays which may not genuinely be the case."
"If a gay person is living in a big city, it might be relatively safe and there is a greater possibility the gay relationships might be kept secret for a longer period. If he is in the towns/village it will be difficult to keep it secret and once it is discovered the reaction from non-state actors will be very strong. The question of who is ruling the country or a particular province is very relevant."
Our Conclusions Concerning the Appellant
"The Appellant's appeal against the Respondent's decision is allowed."
Signed Dated 3 December 2008
Senior Immigration Judge Batiste
|APPENDIX OF OBJECTIVE EVIDENCE|
|2008/10/16 LA Times Article|
|2008/08/30 Lesbians, Gay, Bisexuals, Transgender Rights Report|
|2008/08/29 COIR Report|
|2008/05/15 Report by Dr Giustozzi|
|2008/05 World Survey by International Lesbian and Gay Association|
|2008/03/15 Report by Dr Lau|
|2008/03/11 Excerpt from US State Department Report|
|2008/03/10 Report by Dr Shah|
|2008/03/08 US State Department Report|
|2007/05 UNODC Report|
|2007 UNHCR Eligibility Guidelines for Refugees|
|2007 Report by Afghan Independent Human Rights Commission|
|2005/04 UNHCR Report|
|2005/04 CIPU Report Extract|
|2005 Sydney Morning Herald Article|
|2004/09/06 Article by Rex Wockner|
|2004/09/01 Pak Tribune report|
|2004/07/05 Reuters Report|
|2004/05/20 ECRE Statements|
|2004/05 ECRE Guidelines|
|2004/01/04 Afghan Constitution|
|2004 US State Department Report|
|2003/03/01 Gay & Lesbian Review|
|2003 Article by Martin Kuplens-Ewart|
|2002/10 UNHCR Report|
|2002/05/24 Scotsman Article|
|2002/04/03 LA Times Article|
|2002/03/07 HRW report|
|2002/01/12 Times Article|
|2002 IJRL Guidelines|
|2001/12/21 Article by Lou Chibbaro|
|2001/11/06 Article by Paul Varnell|
|2001/10/02 Village Voice Article|
|2001/09/28 Article by Sam Handlin|
|2001/08/27 Life under the Taliban by Saira Shah|
|2001 Article in ELR by Mark Bell|
|1999/09 Amnesty International Document|
|1998/06/12 ILGA Report|
|1976 Article 427 of Afghan Penal Code|
|1976 Article 1 of the Afghan Penal Code|
Asylum and Immigration Tribunal
Heard at Field House
On 28 October 2008
The Tribunal is satisfied that, at the time the Appellant made his application for permission to appeal to the IAT and for the reasons indicated in the grant of permission, there was a significant prospect that the appeal would be allowed upon reconsideration. It orders that the Appellant's costs are to be paid out of the relevant fund, as defined in Rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Signed Dated 3 December 2008
Senior Immigration Judge Batiste