LC (Albania)  v Secretary of State for the Home Department [2017] EWCA Civ 340.

The Home Office has relied on outdated guidance to determine asylum applications from Albanian nationals, the Court of Appeal has held. The judgment in LC (Albania) will have far-reaching effects for those people denied protection under bad law over a number of years.

The judgment also reiterates the approach to be taken when considering the future behaviour of asylum applicants if they return to their home country.

Asylum claims based on sexuality

Guidance for determining asylum applications on sexuality identity grounds was articulated in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 (“HJ (Iran)”).

Where an asylum seeker claims that, if returned to his home country, he will be persecuted because he is gay, the Supreme Court mandated a four-stage test:

(i) Is the applicant gay, or someone who would be treated as gay by potential persecutors in his country of origin? If no, the claim should be refused. If yes:

(ii) Do openly gay people have a well-founded fear of persecution in the country of origin? If no, the claim should be refused. If yes:

(iii) In respect of his sexual orientation, on his return, will the applicant be open? If yes, he is a refugee and his claim should be allowed. If no:

(iv) If he would not be open, but rather live discreetly, is a material reason for living discreetly that he fears persecution? If yes, he is a refugee and his claim should be allowed. If no, then his claim should be refused.

Crucially, step (iii) expressly provides for an assessment of whether the applicant would be “open” in his country. If they wouldn’t, step (iv) requires the decision-maker or judge to consider the reasons why not. The euphemistic use of “discretion” means concealment of sexuality.

Factual background

The appellant is an Albanian national. He is gay. A relationship he was conducting with another young man was discovered by his father, who threw him out of the house.

Fearful of mistreatment from the police, the appellant came to the UK. He was granted discretionary leave to remain until he was 17 years 6 months old. At that point he claimed asylum and his claim was refused.

The appellant’s appeal of that decision was heard in January 2014. The judge adopted the four-stage approach in HJ (Iran) and rejected the appeal. The appellant was granted permission to appeal that judgment on the basis that it was arguable that the judge may have misapplied HJ (Iran). Once again, the appeal was dismissed.

In dismissing the appeals, the tribunals held that the appellant fell at hurdle (iv): he wouldn’t live as an openly gay man, but this wouldn’t be because he would fear persecution if he did.

Overruled case wrongly applied

The appellant advanced two grounds of appeal.

The tribunals had relied on the country guidance case MK (Lesbians) Albania Country Guidance [2009] UKAIT 00036. That case  allows for three bases of refusal of applications from Albanian LGBTQ asylum seekers. It provides that those who do not make use of gay cruising sites in the capital Tirana, who do not face persecution from their family, and who are not poltical activists, may all be refused.

But LC (Albania) has drawn attention to the fact that that decision was appealed, and by consent the Court of Appeal set aside the order in October 2011.

The appellant in LC (Albania) therefore submitted that the tribunals erred in law in relying on MK (Albania). This point had been raised in separate litigation in DD in September 2016. It was accepted in that case in December 2016 that the MK (Albania) Order could no longer be relied upon.

The Home Office conceded the point in LC (Albania) and the Court of Appeal agreed. This is highly significant. MK (Albania) has erroneously been applied by the Home Office and immigration tribunals not only to sexual identity asylum claims, but to forced trafficking and domestic violence applications, for over five years. In some cases, unlike LC (Albania), this wrongful application may have been decisive.

Observers may be surprised that such a state of affairs could persist for five years. But it is now clear that any individual refused asylum by a decision-maker or the courts and tribunals between October 2011 and December 2016 based on MK (Albania) has a right to submit a fresh claim.

Does EU law require a new approach?

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 entitled to protection.

The core of the appellant’s case in relation to the guidance in HJ (Iran) and the Qualification Directive was summarised by Hickinbottom LJ as follows:

HJ (Iran) is inconsistent with the Qualification Directive, because the guidance differentiates between an individual whose modification of behaviour is “forced” by reason of his fear of persecution (who, HJ (Iran) holds, should be granted refugee status) and an individual whose modification of behaviour is “voluntary” (who, it holds, should not).

This was wrong because the CJEU in X and Y, and X, Y, and Z, explained that modification of behaviour per se is contrary to the protection afforded by the Directive. S Chelvan, who acted with Jessica Smeaton for the appellants in LC (Albania), has written on the perceived discrepancies between the approaches of the English Courts and the CJEU for this website.

This means that neither the question of whether an individual is open about or conceals his sexuality, nor the reasons for his concealment, is material.

The appellant argued that for those reasons the application of the CJEU cases by the Upper Tribunal in MSM [2015] UKUT 413 amounted to a judgment that the steps (iii) and (iv) should not be followed. The appellant drew attention to a

possible element of dissonance between the decisions of the Supreme Court and those of the CJEU

observed by the Upper Tribunal in MSM.

However, the Court of Appeal held that a possible element of dissonance did not equate to an inconsistency. In fact, the Upper Tribunal in that case had found that X and Y was “entirely consistent” with HJ (Iran). The fact that the point was without the ratio of MSM put the issue beyond doubt for the Court of Appeal.

We may wonder what, in that case, the “possible element of dissonance” could be. But for now, Court of Appeal authority seems to have plugged the gap suggested by the Upper Tribunal in MSM.

The judge held that there was no inconsistency between the CJEU authorities and HJ (Iran). First, the CJEU cases were not concerned with circumstances in which a person would behave in such a way as to conceal the relevant characteristic, not in order to avoid persecution, but for unrelated reasons. Therefore the CJEU cases were not concerned with the circumstances to which step (iv) relates in HJ (Iran). While MSM was consistent with HJ (Iran), the CJEU cases were simply about a different situation.

Second, were HJ (Iran) misconceived, one would have expected the CJEU to say so, particularly as it was before the court in Y and Z.

As there is no such inconsistency, the court was bound by HJ (Iran), and therefore the appeal should be dismissed.

Points of principle

Hickinbottom LJ continued to make observations on the principle of concealment of a relevant characteristic, which are sure to take centre stage in Home Office submissions in HJ (Iran) type cases.

He observed that where an individual, on return to his home country, would conceal his sexuality, the foundation of his right of protection is that he modifies his behaviour in order to conceal his sexual orientation to avoid persecution. If a person would behave in the same way regardless of where he lived, it is a stretch too far to say that he would “modify” his behaviour on return. Modification means change.

Of course, this establishes a de facto requirement for LBGTQ asylum seekers to act in the UK in such a way that the Courts will recognise as demonstrative of one’s sexuality. This is because if they don’t, they can’t be said to modify their behaviour on return to their home country. English courts want LGBTQ people to enjoy the same protections as straight people in the UK. They also want to make sure they do so in a way the courts recognise.

Yet behaviour is not a reliable indicator when it comes to expression of sexuality. To borrow from Lord Roger’s memorable image in HJ (Iran), a beer-swilling rugby player may become a cocktail-drinking Kylie fan one day. LC (Albania) makes the dangerous assumption that someone concealing their sexuality whilst applying for asylum in the UK will be able and continue to do so once returned to their home country.

Perhaps the Court of Appeal’s conviction in this regard comes from the ease with which a (heterosexual) person can imagine ‘acting straight’. It may be easy for a judge to picture why an applicant before her cannot conceal, for example, his belonging to a particular ethnic group. There may be visual cues which make the notion that the applicant could pretend otherwise visibly unrealistic. Not so for the gay asylum seeker sitting before the her, whose sexuality is not clear at first glance.

But homophobes can be dangerously perceptive, and suspicions as to sexuality which lead to violence can build slowly over time. Notwithstanding the ethics of sending a person back on the false premise that their behaviour in the UK reliably indicates their future safety, the impracticality of concealment may not be clear to the judge as she makes her decision.

It is also questionable whether the judgment takes adequate account of differences in sexuality norms across the world. Actions that are not indicative of a certain sexuality in the UK may be so in other countries. Judges applying HJ (Iran) in light of LC (Albania) must bear the heavy burden of making that assessment. Practitioners representing applicants have the equally daunting task of compiling evidence that can convince them otherwise.

“The silence fallacy” 

According to the appellant, the assumption that an individual will guarantee his safety in a homophobic country by being silent as to his sexual orientation is a fallacy. Lying about a relevant characteristic is often unrealistic.

But the Court of Appeal found that the submission that Albania is a country where it is impossible for a gay man to avoid being perceived as gay without engaging in ‘positive behaviour’ is without any evidential basis. The eternal problem for a lawyer representing an LGBTQ asylum applicant rears its head again: how do you evidence that?

The appellant also argued that the appellant’s concealment of his sexuality would not be voluntary. It would be motivated by social pressure. But such social pressure exists in all countries, including the United Kingdom.

For now, the state of English law as regards future behaviour remains the same:

those who would keep that characteristic concealed for reasons entirely other than the fear of persecution, insofar as they can be said to have modified their behaviour at all, their choice of behaviour is such that it cannot rationally give rise to such protection.

An application to appeal to the Supreme Court must be likely. In the meantime, you can read more on the No 5 Chambers website: LC (Albania) – Home Office concedes unlawful use of Country Guidance on Albania since October 2011.

Words of warning on grounds of appeal and role of interveners

Finally, Beatson LJ gives a concurring judgment but adds some words of warning on grounds of appeal, the scope of an appeal and the submissions of intervenors:

59. The first concerns Mr Chelvan’s submissions on behalf of the Appellant. It may be that one reason his submissions went beyond the scope of the permission was because amended grounds were neither formulated nor lodged (see [13]-[14]). I therefore underline the importance, when limited permission is given on grounds other than those in those in the notice of appeal, of formulating and lodging such grounds. The court, the respondent and any interveners are entitled to expect an appellant to do this well before the hearing rather than leaving them to work it out from the reasons given by the judge granting permission.

60. Secondly, possibly as a result of the absence of amended grounds of appeal, the submissions of the Intervener were not only in part outside the scope of the appeal but in substance sought to revisit the facts. Since the Intervener accepted that the legal analysis and guidance of the Supreme Court in HJ (Iran) is correct, the points were not relevant to the ground of appeal that was before the court and should not, in my judgment, have been made. In my experience, interventions by bodies such as the UNHCR usually give valuable assistance to the court in dealing with the matters before it. But, interveners should not make submissions beyond the scope of an appeal unless at the time of the application to intervene or at any rate before the intervention is filed, the intervener has applied to do so, so that the court can consider whether it has jurisdiction to consider a matter beyond the scope of the permission granted and, if so, whether it is appropriate to do so in the particular circumstances of the case. If interventions beyond the scope of the permission granted are made without the sanction of the court in this way, that may in time discourage the granting of permission to intervene. Such interventions place a burden on the party potentially adversely affected (in this case, the Respondent) who may consider it has to deal with issues which are not before the court. They also place a burden on the court which, in my judgment, should not generally deal with them.

It is difficult to judge how fair these comments are, which were only made by one of the judges. The submissions of the intervener, UNHCR, certainly seemed to have been carefully considered in the leading judgment.