Successful challenge to certification of human rights claim for gay man

A gay man from India has successfully challenged a decision by the Home Secretary to certify his human rights claim, meaning that he was unable to appeal the refusal. He will now be able to appeal the refusal of his human rights claim to the tribunal. This is a Scottish case, Petition of SV for Judicial Review (Court of Session) [2025] CSOH 88.

Background

The petitioner (claimant) is an Indian national who entered the UK as a student and then claimed asylum in December 2023 based on his sexual orientation. On 3 June 2024 his claim was refused both on asylum and human rights grounds. The claims were certified as “clearly unfounded” under section 94 of the Nationality, Immigration and Asylum Act 2002, meaning that the decision could not be appealed.

The petitioner sought judicial review of the certification decision relating to article 8 only.

The court referred to the relevant authorities including ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 and SN v Secretary of State for the Home Department [2014] CSIH 7. The test for a claim being clearly unfounded is that it is bound to fail on appeal. If there is a realistic chance that the appeal may succeed in the tribunal then it is not clearly unfounded. This is a low test given the decision to certify removes a person’s right to appeal to the tribunal.

Given the challenge was on article 8 grounds only, the issue to be decided was whether there would be very significant obstacles to SV’s integration into India if he was returned there. The court referred to the Home Office’s guidance on private life claims which states:

A very significant obstacle may arise where the applicant would be at a real risk of prosecution or significant harassment or discrimination as a result of their sexual or political orientation or faith or gender, or where their rights and freedoms would otherwise be so severely restricted as to affect their fundamental rights, and therefore their ability to establish a private life in that country.

It was submitted on behalf of the petitioner that the fact that he “may be required to hide or minimise his sexual orientation while in India might be considered to represent a very significant obstacle” to his reintegration into India.

The Home Secretary relied on the country guidance case of MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC) and said there was no basis to depart from the country guidance. The court quoted at length from the country guidance case, which says that internal relocation within India would not be unduly harsh and that there are LGBT+ networks in India.

The decision in MD also states that violence and extortion of gay men still happened in India, that being gay is seen as socially unacceptable and that there is discrimination in employment, housing and access to healthcare. This guidance was given in the context of an asylum claim and there was no consideration in that case of obstacles to reintegration, where these factors, while not meeting the threshold for persecution, may still be relevant.

It was noted on behalf of SV that conditions that do not breach article 3 may still breach article 8 and argued that:

The respondent has failed to consider parts of the CPIN and did not consider how discrimination and stigma that he would face might affect his private life or ability to reintegrate. The fact that the petitioner may be required to hide or minimise his sexual orientation while in India might be considered to represent a very significant obstacle to the petitioner’s reintegration into India.

The court agreed, finding:

The decision in MD is to the effect that it cannot be said that the threshold for a protection claim is met. Here, however, the claim made is no longer a protection claim – it is solely that the petitioner’s Article 8 rights would be infringed. I do not consider it is necessary to go behind or disregard what he said in MD to reach a conclusion that a Tribunal in future might reach a conclusion that the petitioner’s sexuality means he would be unable to integrate. Paragraph 174(c) of that decision quoted above indicates a number of forms of treatment which might arise and which, if they did, might present a very significant obstacle to integration. I accept entirely that there are arguments to be made to the contrary, but the dispute between these positions is not for me to resolve in this action. Having regard to the material put before me, I consider that it cannot be said that there is no possibility that a Tribunal would accept that, on return to India, the petitioner would face very significant obstacles to reintegration and decide in his favour. On that basis I conclude that it cannot be said that his claim is “clearly unfounded”

The claim succeeded.

Conclusion

The most recently reported statistics on asylum claims based on sexual orientation (for 2023, published in August 2024) indicate that there have been grants of asylum to Indian nationals as recently as 2021 and 2023, albeit in such small numbers that the exact figure is not reported. The figures also show appeals being allowed in these claims in every year they are reported, although again in very small numbers. In light of this and the country guidance that she sought to rely on, I think it does make the Home Secretary’s arguments in favour of certification, particularly on article 8 grounds as here, difficult.

Success in this case does not of course equal success overall, as SV will now also need to succeed in his immigration appeal if he is to be granted leave to stay in the UK.