Continuing impact of the Supreme Court decision in HJ (Iran) and HT (Cameroon) on protection cases in the UK, by Ed Mynott
In the summer of 2010 the groundbreaking decision of the Supreme Court in HJ Iran overturned previous jurisprudence on cases involving sexuality. The previous test adopted by the Court of Appeal in HJ was whether a person could reasonably be expected to tolerate living discreetly ie hiding their same sex behaviour or identity. If the person could be expected to do so, their claim for protection under the Refugee Convention failed.
In HJ the Court found, to summarise crudely, that if:
(1) a person was gay and;
(2) they would express their sexuality;
(3) the evidence was that such expression would lead to persecution in the given country:
They fell to be recognised as a refugee.
Crucially however, the Court also found that if a person would NOT express their sexuality for fear of the consequences and one material reason for not doing so was a fear of persecution, then if the evidence showed that persecution was indeed reasonably likely (in other words their fear was well founded) they should still be recognised as a refugee. This is because the right to express a same sex identity is a fundamental human right which should not be defeated by the threat of persecution.
It was immediately apparent that the reasoning in HJ could have wide-ranging consequences on all asylum cases. Over the past year this has been confirmed by other cases.
Firstly, in late 2010 the Court of Appeal in RT (Zimbabwe) confirmed that the reasoning in HJ (Iran) applied to the assessment of claims based on political opinion.
In SA (political activist – internal relocation) Iran [2011] UKUT 30 (IAC), the Upper Tribunal (IAC) very briefly confirmed (with reference to HJ) that in assessing the availability of internal relocation for a political activist, the appellant’s claim could not be defeated by an expectation that s/he could cease being politically active in the area of relocation and thus avoid persecution.
There have now been two further recent cases of the Upper Tribunal applying HJ. The first is, on the whole, a very positive decision in a sexual orientation case, SW (lesbians - HJ and HT applied) Jamaica CG [2011] UKUT 00251(IAC). While rejecting the submission that all lesbians (actual or perceived) are at risk in Jamaica, the Tribunal set out its understanding of the HJ test:
The HJ and HT test
10. Following the decision in HJ and HT, when considering the risk on return, the Tribunal is now required to answer the following questions:
(a) whether it was satisfied on the evidence that the claimant was gay, or that he or she would be treated as gay by potential persecutors in the country of nationality; and if so
(b) whether it was satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality; and if so
(c) what the individual claimant would do if he or she were returned to that country.
11. Depending on the answers to those questions, the following questions arise which are determinative of the question of persecution, humanitarian protection or human rights breaches:
(a) If the Tribunal found that the claimant would in fact live openly and thereby be exposed to a real risk of persecution, then he or she had established a well-founded fear of persecution, even if they could avoid the risk by living "discreetly";
(b) If, on the other hand, the tribunal concluded that the claimant would in fact live discreetly and so avoid persecution, it must go on to ask itself why the claimant would do so. That would affect the outcome of the appeal in the following ways:
(i) where a claimant would choose to live discreetly simply because that was how he or she wished to live, or because of social pressures, for example not wanting to distress parents or embarrass friends, then an international protection claim should be rejected:
“Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.”
(ii) However, where a material reason for the claimant living discreetly on return would be a fear of the persecution which would follow if he or she were to live openly as a homosexual, then international protection should be available:
“…other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect - his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”
But perhaps more interestingly, the Upper Tribunal has also recently applied the guidance in HJ to an Ahmadi case ie a case of claimed religious persecution. In MT (Ahmadi – HJ (Iran)) Pakistan [2011] UKUT 00277(IAC) the Tribunal’s headnote states:
Where it is found that an Ahmadi will be “discreet” on return the reasons for such discretion will need to be considered in the light of HJ (Iran) [2010] UKSC 31.
Further,
24 If we adapt the guidance given by Lord Rodger in paragraph 82 of HJ (Iran) it is first necessary to see whether the appellant is a devout Ahmadi and that has been found in his favour. The next question would be to ask whether if the appellant were to preach openly on return would he be liable to persecution in Pakistan?
25. To answer this question it is necessary simply to consider the result if the appellant were to publish to those who were “dangerous”. We have already referred to paragraph 84 of MJ.
26. The next question is to consider what the appellant would do on return. In our view the evidence is consistent that the appellant is a devout Ahmadi who has published and preached in the past, both at home and abroad. There are two possibilities:
“If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living ‘discreetly’.
If on the other hand the Tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.”
27. On this aspect we would be inclined to the view that the appellant would do in the future as he has in the past – preach and publish to those deemed not to be dangerous. The next question is why he would do this. Ms Holmes submitted that it was simply because the appellant found it better and more efficient to do it this way. Returning to paragraph 82:
“If, on the other hand, the Tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution.”
The Tribunal concluded of MT that:
31 ...He would behave discreetly on return, preaching if not to the converted to those deemed not to be dangerous. His behaviour would at least in part be conditioned by the fear of persecution.
Hence his appeal was allowed. Under the pre-HJ approach had it been decided that he would have preached ‘discreetly’ and thus avoided persecution, his claim would have failed.
Discussion
It is arguable that the HJ case has opened up a new basis on which applicants who are claiming on a ground other than sexuality can potentially succeed in their claims of persecution. This new basis does not replace the old but sits alongside it
If a person can prove to the required standard that they do hold a particular political opinion or religious faith and can show that the expression of that opinion or faith would attract persecution, then they should succeed in their claim
In some ways this approach should always have been followed. The Convention is forward-looking. It assesses future risk of persecution. Of course, if past persecution can be proven that will provide a good indicator of future persecution, absent a significant change in circumstances (Immigration Rule 339K; Dermikaya). However, an absence of past persecution is not determinative of future risk.
Yet it is a commonplace that the vast majority of asylum claims which are refused are refused on the basis of credibility. UKBA or an IJ on appeal disbelieves an account of past events which involved the applicant coming to the adverse attention of agents of persecution and on that basis refuses the claim. Unfortunately if a person is disbelieved on the entirety of their claim and such disbelief is sustainable, the refusal will be unchallengeable. However, if an applicant is able to establish that they do indeed hold the political opinions or religious faith they profess, then disbelief of (or a failure to establish) the past events they rely on is not determinative. It remains to be assessed whether expression of the opinion in question, or its discovery by potential agents of persecution, would lead to persecution.
HJ then increases even further the importance of considering which aspects of a claim need to be established and how best to evidence them thus establishing as many of the facts of an applicant’s claim as possible.
Evidence and case preparation
In cases of sexual orientation the suspicion immediately arose after the publication of HJ that UKBA would seek to defeat such claims by disbelieving that an individual was indeed gay. There was debate amongst practitioners about whether some expert body might be able to validate that a person was gay. It is difficult to see how this might work!
In any event, in all asylum claims not just those relating to sexual orientation, the primary piece of evidence is likely to be the applicant’s own word, as expressed in interview or witness statement. It has always been best practice to take the fullest possible statement of why the applicant fears persecution but it now even more important to clearly set out in sufficient detail the applicant’s own political opinion / religious faith / sexual orientation. This evidence should cover not only past events but the applicant’s current situation as this is of most relevance to assessment of future risk on return. Of course corroboration should be sought where at all possible but if the applicant’s own evidence is not disputed then it stands.
Since the introduction of NAM, the practice of UKBA is more often to accept aspects of the applicant’s claim while disbelieving other aspects. If it has accepted that a person does hold an opinion or have a sexual orientation which would lead to persecution, then despite the disbelief of other facts, there is a potential platform to run an HJ argument IF the country evidence establishes that the fear is well founded. In short, HJ can provide a potentially direct route to establishing refugee status without necessarily establishing the entirety of the applicant’s claim or total credibility.
None of this means that corroborating evidence should not be sought nor that the applicant need not bother trying to establish the entirety of her claim. That would be dangerous for the simple reason that many decision-makers in practice ignore the rule that just because an applicant is disbelieved about a particular matter, that does not necessarily mean they are to be disbelieved about everything. For many decision-makers, in practice once an adverse credibility finding is made it opens the door to a whole series of other adverse findings - as if pulling a loose thread led to the unravelling of the whole garment.
An example of how HJ impacts on the materiality of evidence
In a case where a Sudanese female teacher claimed to hold un-Islamic views and to have been dismissed for teaching evolution, her appeal was dismissed for various reasons but there was third party evidence before UKBA and the Judge that she had broken with Islam. This evidence was provided by an émigré political party and a UK-based academic who had met the applicant after her arrival in the UK. The lack of first hand knowledge of events in Sudan greatly reduces the weight of this evidence in establishing whether her account of events in Sudan is true. However, if there is no reason to disbelieve the witnesses (and the Judge found the academic to be sincere) the evidence on its face corroborates the applicant’s own description of her current religious views. Taken together the evidence should be sufficient to establish that she has genuinely broken with Islam. That is a material issue on which a factual finding needs to be made and any failure to consider evidence material to determining that point would be an error of law.