HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 represents a fundamental change in UK asylum law. The previous settlement, established by the case of Iftikar Ahmed [2000] INLR 1, was a very British and pragmatic one. Essentially, the question of whether future behaviour could make a person a refugee became a simple question of fact: would the person in question in fact, despite the dangers, behave in a way that would expose him or her to risk of persecution?

Most of us are not committed political or religious activists and would not be willing to expose ourselves and perhaps our families to danger for a political or religious cause. Some people are special, though, and they do. Every day. In countries like Burma and Iran, where the consequences can be dire. Some would characterise their behaviour as stupid, some as brave. Some, rather sad characters themselves, routinely describe it as ‘not credible’. It was always difficult to persuade an immigration official or immigration judge to take the imaginative leap to accept that the particular asylum applicant was one of these very special people, without whom the world would never improve and to whom we all owe so much.

HJ (Iran) establishes that where a person would in future refrain from behaving in a way that would expose them to danger because of the risk of persecution that behaviour brings, that person is a refugee.

The context in HJ (Iran) is famously homosexuality — would a gay man or lesbian woman have to conceal aspects of their sexuality in order to avoid persecution — but the legal principle is a wider one of profound significance. It gives proper life to the Refugee Convention and does away with the slightly sordid previous approach, which allowed UKBA to return activists that had been cowed by their past experiences. I always thought that this was one of the strongest arguments that the Home Office could run in this type of case: that the fact the asylum claimant had fled their country signified that they had been very successfully persecuted and he or she was unlikely to repeat the behaviour that had already caused them such pain and misery.

More prosaically here, is the guidance to be followed, taken from the leading judgment of Lord Rodgers (Lord Hope’s judgment is in fact the minority judgment and not to be followed):

When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

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.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application 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.

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. 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.

The judgment is also significant for what it says about internal relocation in these cases. At paragraph 84 Lord Rodgers goes on:

I add a comment on the case of HT. The tribunal rejected his application on the ground that, on his return to Cameroon, he could go to live in another part of the country and live discreetly there. In that event he would have no real fear of persecution. But there appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution. So in no sense would the applicant be returning to a part of the country where the state would protect him from persecution. In effect, therefore, the tribunal was simply saying that his application should be rejected because, on return, he could take steps to avoid persecution by conducting himself discreetly. For the reasons which I have given, that approach is inconsistent with the very aims of the Convention.

This also applies more widely than just in gay cases. If a political or religious activist would want to continue his or her activities in future but would not be able to because of the fear of persecution, it is no answer to say that person can move to another part of the country and remain effectively gagged and bound there as well.

I used these wider arguments only yesterday in a context other than a gay case, that of an Ahmadi Muslim from Pakistan. It is clear from the country information that some Ahmadis do have to tailor and limit their activities in order to avoid persecution. They are now surely entitled to refugee status in the UK.

Lastly, I cannot leave this case without commenting more frivolously (this is a blog, not a legal journal!) on Lord Rodger’s comments on Kylie and the reaction of the right wing press. The Kylie comments are easy to take out of context, and having read the judgment in full now I entirely approve of an admittedly light-hearted example of wider issues around sexuality. He was clearly deliberately deploying a stereotype, as the reference to beer-swilling rugby players shows.

As for the press, it is difficult to imagine a more prefect storm of right wing fantasy. Liberal judges allow black and Middle Eastern asylum seekers to stay… and they are gay! The idea of floods of homosexuals (and lesbians too, if you take the approach of the disgraceful so-called immigration judge ‘Peter’ on Radio 5 Live breakfast that day) descending on these shores is quite entertaining.

More worrying is the likely approach of UKBA to gay cases in future. How does one prove one is gay? I lost my first ever asylum appeal on exactly this basis. What was my client supposed to do? Mince into court wearing a tutu? In Australia this is the direction that decision making has apparently taken (see Jenni Millbank “From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom (2009) 13 International Journal of Human Rights 391-414). Even an enlightened former PO seems to think it takes one to know one and that plenty pretend to be gay in order to get asylum. Gay asylum seekers may need to be prepared for some unfortunately intimate and intrusive enquiries in future.