The new Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim, published last Wednesday, marks an unwelcome retrograde step for the Home Office, which still continues to apply the ‘voluntary discretion test’ to gay asylum claims, even though this has been held to be unlawful, as a matter of EU law, since July 2015. Having made positive strides with respect to the quality of decision-making since the public outcry over the sexually explicit methods of questioning gay asylum seekers in February 2014, in August 2016 this API will lead to sub-standard and unlawful decisions by the Home Office, and arguably Courts and Tribunals who rely on the API, leading to devastating outcomes to those returned to countries where they will suffer persecution.

Where binding EU law and published policy is not applied by the Home Office (Apata)

On 29 July, the Court of Appeal handed down judgement in the case of R (Aderonke Apata) v Secretary of State for the Home Department [2016] EWCA Civ 802. This July 2016 judgment was as a result of an appeal from an April 2015 Administrative Court judgment, before Deputy Judge John Bowers QC ([2015] EWHC 888 (Admin)).

The February 2015 API on Sexual Identity Issues in the Asylum Claim, in force at the time of the March 2015 hearing before the Administrative Court, was a result of extensive consultation with corporate partners from 2014 and 2015, only delayed to incorporate reference to the December 2014 CJEU case of ABC, a case providing binding guidance, as a matter of EU law (Article 4 of the 2004 Qualification Directive and Articles 1 and 7 of the EU Charter), on prohibited methods of investigating an asylum claim, including the viewing of sexually explicit material. The API made clear that even if submitted by the asylum seeker, such material “must not” be viewed and should be returned to the asylum seeker [Sections 4.8-4.10].

At the 19 July 2016 Court of Appeal hearing, the three Lord Justices were informed by Counsel for the Secretary of State for the Home Department, the clear indication by the Administrative Court Judge to all parties at the March 2015 hearing that he would view DVD material (containing evidence of sexual activities) submitted by the Claimant, to ‘prove’ her sexual identity, following the hearing. At no point did Counsel for the Clamant, nor the Defendant Secretary of State for the Home Department, inform the judge that this material should be excluded from consideration, as a matter of EU law, and additionally as a matter of the SSHD’s published policy position.

This damaging flaw in the proceedings evidences the real need to ensure that Counsel is up-to-date with case law, and current published policy position, noting in hand with the lack of any decision to challenge the voluminous evidence to support the refugee claim from 2014, leading to the Court of Appeal’s reference to a waste of public money [34], but more importantly in this author’s view, protracted proceedings for a vulnerable asylum-seeker.

Whilst dismissing the appeal, as they had to do as a matter of law due to the challenge to the December 2013 removal directions, the Court of Appeal, in an exceptionally rare move, granted a stay to enable the Appellant to file evidence as part of a fresh claim, to lead to a 2016 decision from the Secretary of State [36].

This application was lodged on 3 August 2016, with supporting evidence, to support an application to revoke the 2013 Deportation Order and grant of refugee status (on the basis of currently disputed sexual identity on an actual or perception of sexual identity basis). There is a free-standing Article 8 ECHR (family life) claim on the basis on the basis of conceded (undisputed) family life with a recognised refugee lesbian (partner) , to exist from at least from the earlier Administrative Court proceedings in March 2015 (SSHD’s Counsel’s July 2016 skeleton argument). This concession should be a probative starting point to establish current sexual identity and consequent refugee protection claim. 

The tortuous history for gay asylum claims in the UK

Asylum claims based on sexual identity first came within recognised refugee protection in the UK in 1999, nearly 50 years after the 1951 Refugee Convention came into force. Lord Steyn’s reasoning, providing obiter breadcrumbs from the judicial table in Shah and Islam¸ provided the gate-keeper for Lord Justice Schiemann to construct his continuum to determine ‘homosexual’ claims in the case of Jain (1999).

From 2004 to 2010, the Labour government, through successive Court of Appeal and Tribunal cases sent LGB asylum seekers, back to their countries of origin, where but for their “voluntary discretion” they would suffer serious harm. The only way of availing refugee status was to be able to establish that such voluntary discretion would not be ‘reasonably tolerable’ (see J (2006) [16]). This line of reasoning led the Court of Appeal in 2006 in RG (Colombia) [18-20], an extremely troubling case, to dismiss an appeal even where unchallenged psychiatric evidence would show that discretion would lead to a nervous breakdown of the gay man from Colombia, where it was accepted that ‘but for’ his discretion he would be at real risk of persecution from vigilante death squads without effective state protection.

The landmark judgment of the Supreme Court in July 2010 in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department[2010] UKSC 31; [2011] 1 AC 596 (‘the Kylie concert case’) at [82] (as per Lord Rodger) provided guidelines to be applied by decision-makers (the SSHD, Tribunals and Courts) to determine an asylum claim based on sexual identity (or any claim based on any of the Convention reasons). In summary, the four limbs for establishing an asylum claim based on sexual identity are as follows:

• First limb – Is the applicant gay or will s/he be perceived as gay on return to their home country?;
• Second limb – Do openly gay individuals in the country of origin face a well-founded fear of persecution?;
• Third limb – Will the individual be open on return? (if Yes, they are a refugee); or
• Fourth limb – If they ‘choose’ (voluntary) discretion?;
• if the reason is solely personal or due to social pressure, then they are not a refugee; or
• If a reason includes the fear of persecution then they are a refugee.

Lord Rodger’s guidelines are sub-headed in the report as “the approach to be followed by Tribunals”. His reasoning was affirmed by 3 of the other Supreme Court Justices (Lord Walker at [98], Lord Collins at [100] and Lord Dyson at [132]).

The approach of Lord Hope at paragraphs 35 to 36 is not, contrary to the reliance by the Home Office in the August 2016 API [page 37] the binding guidance, and in this author’s opinion, is right not to be. Within paragraph 36, Lord Hope relies on ‘cultural or religious reasons’ for voluntary discretion, then without a fear of persecution, this excludes the individual from refugee protection. The Court of Appeal introduced this cultural relativism test into discretion in the March 2009 judgment in HJ (Iran) and HT (Cameroon) [32] (as per Pill LJ (“a degree of respect for social or religious beliefs in other states is in my view appropriate”), and as Lord Dyson made clear at paragraphs 127-130 of HJ (Iran) (SC), domestic cultural norms does not obviate international human rights standards. Noting that in these third and fourth limbs, having succeeded in the second limb of persecution of openly LGB people, then the causal nexus between cultural and religious reasons, which gives rise to persecution in those countries, is quite clearly established.

Whilst this landmark judgement was rightly held a triumph for striking down the ‘reasonable tolerability’ discretion test, it still provided analysis of discretion, where a gay asylum seeker could be lawfully returned to a country, where the UK accepts that they would suffer persecution ‘but for’ their choice to be discreet due to personal or social reasons not connected with persecution. This fallacy would require that individual never to reveal, or be identified, as anything but heterosexual, in order to evade persecution, not for one day, or one week, but for the rest of their life.

Within a year the Upper Tribunal in the June 2011 Country Guidance determination in SW (lesbians – HJ-HT applied) Jamaica [2011] UKUT 00251 (IAC) recognised the lengths those who are lesbian, or perceived to be lesbian, would need to ‘prove’ compliance with hetero-normative norms (have children, a male partner, or were recently widowed) to evade serious harm from the prospective persecutor, in Jamaica, from the ages of 16 to 60. On first blush, that was an HJ (Iran) plus case from a domestic proceedings viewpoint. This author has continually argued the discretion test even post-HJ, still provided risk on return.

The 3 August 2016 unlawful API: lack of reference to MSM and Supremacy of EU law

The 2016 API has a lot of positive points. It cites the Yogyakarta definition of sexual-orientation, requiring analysis of not just conduct, but ‘emotional, affectional and sexual attraction’ [page 8 of principles, page 7 of API], not included in the Feb 2015 version.  It also includes references to ‘difference’ and evidence linked to ‘stigma’ and ‘shame’ [pages 11-14, 26-27 and 34]. This links directly of the Home Office’s incorporation of the DSSH (Difference, Stigma, Shame and Harm) model in their training as a tool to establish an asylum claim based on sexual identity (see Home Office LGBTI Action Plan 2015-2016 [page 6].

However, there is clear schism with the law and this published policy, which operates to ignore the end of the discretion test (including voluntary discretion), which needs to be highlighted to readers of this blog post and anyone all those involved with asylum claims:

At page 38 of the 3 August 2016 API, the Home Office asserts:

“HJ requires that in order to succeed in a protection claim, the claimant must establish that at least one of the reasons why he or she would behave discreetly would be out of fear of persecution or serious ill-treatment. Decision makers must establish whether or not the person, if returned to their country of origin, will live freely and openly as an LGB person. This involves a wide spectrum of conduct which goes beyond merely attracting partners and maintaining relationships with them. If it is found that the person will in fact conceal aspects of their sexual orientation if returned, decision makers must consider why the person will do so.

If someone has hidden their sexual orientation in response to social pressures or for cultural or religious reasons of their own choosing and not because of a fear of persecution, then they may not have a well-founded fear of persecution. If the reason why the person will resort to concealment is that they genuinely fear that otherwise they will be persecuted, it will be necessary to consider whether that fear is well founded. Caseworkers should note that where societal attitudes are hostile towards LGB persons and the state is either actively hostile to, or silently tolerates the hostility, an LGB claimant may have no other choice, due to a fear of exposure to persecution, than to be discreet and therefore not be able to live openly if returned to their home country. An exploration must be made of all the reasons why the claimant may be likely, or feel compelled, to be discreet.

It is not the case that if an individual has been found to be LGB and from a country where LGB individuals are persecuted, that the requirement for the claimant to establish individual risk is removed or that a grant can be automatically made. The assessment of whether an individual is at risk on return remains a core element of the required consideration. Consideration therefore, of the claimant’s conduct on return is required as the individual behaviour of the claimant, in terms of living freely and openly as an LGB person, will be linked to the degree of risk to which they are exposed. All of the specific facts of the individual’s circumstances must be assessed, through consideration of the third and fourth limbs of the test.

The HJ judgment makes it very clear that the point of analysis is how the individual would act on return. How the individual has acted until now in their country of origin or in the UK is immaterial. Case workers should not equate any historic absence on the part of the claimant in openly expressing their sexuality, for any reason, as evidence of voluntary discretion. The mere fact that someone may, in their past, have been discreet, even for non-protection reasons, does not mean that those reasons were either the sole reasons why they were discreet, nor do they indicate how the claimant will continue to behave on return.”

The above is completely wrong on so many levels, primarily on the basis that since the 3^rd of July 2015, the Upper Tribunal (IAC) held in MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00251 (IAC) (forced modification of Somali journalist to teacher to evade positive grant of refugee status as individual part of risk group), modification should no longer be followed, following post-HJ (Iran) case law since the September 2012 ruling by the Court of Justice in Y and Z v Germany. At paragraphs 42 to 48 of the determination, having received, as a matter of UT directions, post-hearing written submissions from the Appellant (author and Jessica Smeaton) on post-HJ case law from the CJEU, President McCloskey held [44-48]:

44. … In [72] [of Y and Z], the Court reiterated the necessary of evaluating “ the personal circumstances of the person concerned”. Finally, as noted above, the Court rejected the “abstention” argument, namely the contention that a person does not have a well founded fear of persecution where he can abstain from religious practices.

45. To like effect is the Court’s conclusion in Joined cases C-199-201/12 X, Y and Z, at [75]:

“ It follows that the person must be granted refugee status, in accordance with Article 13 of the Directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid that risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect.”

In short, the possibility of conduct entailing the avoidance of modification of certain types of behaviour related directly to the right engaged is irrelevant. Thus this possibility must be disregarded.

46. In our judgement, the only issue on which there is a possible element of dissonance between the decisions of the Supreme Court and those of the CJEU is whether it is permissible to take into account the avoidance or modification of conduct on the part of the person concerned which is voluntary. This emerges particularly from the analytical exercise contained in [82] of the opinion of Lord Rodger in HJ (Iran). It may be said that the approach espoused by Lord Hope in [35] is in substance the same. Lord Walker, at [98], concurred with [82] of Lord Rodger’s judgment. So too did Lord Collins, at [100] and Lord Dyson, at [132] while, simultaneously, observing in [123] that, in reality, there will be “no real choice”.

47. Pausing at this juncture, we consider that the decisions of the United Kingdom Supreme Court, the High Court of Australia and the Court of Justice of the European Union are in alignment with each other. They are united by their common espousal of the dominant principle that the stature of the right and the unbridled freedom to exercise it (subject only to limitations which do not arise in this appeal) rise above and eclipse other considerations.

48. To the extent that there is any disharmony between the approaches of the Supreme Court and the CJEU, we are, by virtue of the principle of supremacy of EU Law, obliged to follow the latter. However, for the reasons which we will explain, this issue is moot in the present case as we are satisfied that the Appellant succeeds on both approaches.”

[emphasis added]

This is binding precedent, as this makes redundant the third and fourth limbs of HJ (Iran), ie the discretion test (voluntary or forced) through the operation of the Supremacy of EU law, is no longer to be followed. This applies to all cases since promulgation of the determination on 3 July 2015, and arguably since September 2012 (date of CJEU judgment in Y and Z).

The SSHD appealed this reliance on the CJEU case law at paragraph 17 of her grounds of appeal to the Court of Appeal, which consisted of four detailed grounds of appeal. On 12 July 2016, the Court of Appeal (Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715 (Beatson LJ) dismissed the SSHD’s appeal on the basis of a lack of challenge regarding a positive finding of actual, rather than imputed political opinion by the Upper Tribunal.

However, unusually, following a request by all parties, but specifically a request by the SSHD to address all four grounds of challenge, even on a strictly obiter basis, due to the binding precedent nature of the Upper Tribunal determination [paragraph 6], the SSHD lost again on the challenges pleaded in all four grounds with the Court of Appeal, finding that asylum claims are to be viewed through the prism of the 2004 Qualification (Minimum Standards) Directive, there is no provision for modification in the Directive [para 36 and 40] and in applying the reasoning of the CJEU in Y and Z, modification cannot be applied.

This all leads to an alarming intransigence on behalf of the Home Office: to continue to direct decision-makers to assess conduct on return, where as a matter of the Supremacy of EU law analysis of modification is no longer to be followed.  Why do they continue to apply discretion to gay asylum claims, where the Secretary of State in the Court of Appeal proceedings in MSM specifically recognised the binding precedent of the Upper Tribunal determination, but ignore these findings in a document published after the 12 July 2016 handing down of the Court of Appeal’s judgment? Why did they not consult any of their LGB corporate partners in 2016 with respect to this API, where for the February 2015 API there was a circulation in 2014 to a large number of corporate partners and NGOs? The purpose of this lengthy blog post is to highlight the weight to be applied to this part of the API clearly unlawfully applying discretion to gay asylum claims.

The Upper Tribunal (IAC) in SAS (June 2016) (unreported) has ruled the Home Office’s Country Information and Guidance – Sri Lanka: Sexual Orientation and Gender Identity, published in September 2015, contains cited material which does show that openly gay men suffer persecution in Sri Lanka. This is contrary to the Home Office position that the 2015 Country Guidance case of LH and IP (gay men; risk) Sri Lanka CG [2015] UKUT 73 (IAC) should still be applied. The Home Office did not appeal SAS and have granted the Appellant refugee status (Sols: Hackney Community Law Centre).

In EFH (unreported) the Home Office lost before the FTT and the UT in their attempt to remove a pre-operative trans woman on the basis that it was not persecutory to expect her to serve in the Singaporean reserved forces ‘as a man’ for the next 7 years, where she would be forced to live and sleep in the same quarters as men, shower with them, and be treated as a man, on the basis that she was a not excluded from service as a woman, as she was not a cis-woman, or is not a post-operative trans woman. EFH has been living openly as a woman in the UK for the past 10 years and was additionally recognised as female in the ARC Registration Card. The Home Office did not appeal the UT’s determination in EFH and has granted her refugee status. Whilst both determinations are unreported, they can be cited pursuant to the Practice Directions due to the legal precedents they both set (CG case – forced modification of gender identity amounts to persecution).

This latest evidence of a basic absence of understanding of the norms of refugee determination and human rights law is of considerable concern. The next meeting of the LGBT Training Committee with the Home Office was scheduled for 12^th of August, but has to be rescheduled last Friday due to unavailable representatives from the Home Office due to the Summer holidays (meeting scheduled on 1 July). All these points will be raised at the rescheduled meeting, but in the case of MSM have been raised with the Home Office for the past year. To avoid any miscarriages of justice whilst the discussions continue, when referring to the August 2016 API please read with the following warning: continue with extreme caution, jurisprudential pitfalls ahead…

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