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Supreme Court forces government to reconsider gay asylum seekers' application

8 July 2010

Asylum should be granted to homosexuals if they would be forced to conceal their sexuality in their homeland, the Supreme Court has ruled.

The decision overturns previous rulings that the Home Office’s refusal to grant asylum to an Iranian and a Cameroonian on ground of their sexuality was justified under the UN convention on refugee status.

The Court of Appeal had decided that if a person could hide their homosexuality, they would not be at risk of persecution, and therefore the claim for asylum would not be valid.

But in the Supreme Court’s unanimous decision, handed down today, Lord Hope, said: “The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does... he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it.”

It was decided that the lower courts’ ‘reasonable tolerability’ test, applied to decide whether it was possible for a person to be ‘discreetly’ homosexual in their homeland, was in breach of the convention.

The court also clarified several points about the scope and applicability of the 1951 convention.

Lord Hope said the convention did apply to homosexuality; that persecution must be either sponsored or condoned by the home country and that social disapproval or discriminatory treatment on the grounds of sexual orientation does not give rise to protection alone.

“Counteracting discrimination was a fundamental purpose of the convention,” said Lord Hope, later adding: “Persecution does not cease to be persecution for the purpose of the convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.”

As a result of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, the government will now be forced to reconsider the two claimants’ applications for asylum.

Welcoming the decision, John Wadham, legal director for the Equality and Human Rights Commission, said: “This judgment sends a clear message to the government that they must properly take into account a genuine risk of mistreatment due to a person’s sexuality when reviewing asylum status.

“A gay person should be allowed to live openly if they choose; concealing their sexual identity to avoid persecution is not something they should be forced to tolerate.”

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