Border control

What must be remembered is that where a person is recognised to be in genuine need of international protection, they are entitled to live in a place of safety. To wrongly make the Supreme Court's decision in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 3 1 into an issue of numbers of asylum claims is to scaremonger and forget the fundamental point that a person has a right to live openly and freely without fear of being severely harmed for who they are.

This is not, in any event, a matter of numbers. Nor is it a matter of whether the UK has a more lenient approach to gay asylum applicants than any of the other signatories to the UN's refugee convention, who have given detailed consideration to this matter.As the judgment recognises, the approach in Australia is that the decision-maker must look at why an individual would act discreetly. This is the same approach now to be adopted in the UK. Namely, if the reason why a person would conceal their sexual identity is due to the influence of a fear of objective persecution, the individual is a refugee. The Australian cases confirm that where a person falls within a group that is protected under the Refugee Convention, it is not appropriate to deny that person refugee status on the basis that the individual will or may be required to modify his behaviour.

The Australian approach also confirms, as does the present Supreme Court decision, that if the reason why a gay applicant would conceal their sexuality is not influenced by persecution, the asylum claim fails. The same approach is followed in New Zealand where, again, as noted in, they also agree that 'to require an applicant to engage in self-denial was to require him to live in a state of self-induced oppression'. The only difference between the Australian and New Zealand decisions is how they reach that conclusion - the New Zealand court focused on established principles of human law, namely the rights to privacy and non discrimination. Although the approaches differ, the conclusions are the same.

The UK Supreme Court also took into account a decision of the US Court of Appeal in which they upheld a claim by a gay applicant from Lebanon confirming that a person cannot be expected to change his sexual identity as that is a fundamental characteristic and an integral part of human freedom.

They also considered the approach of the Federal Court in Canada which had overturned a Tribunal decision that refused a refugee claim of an Iranian lesbian by reasoning she could hide her gay relationship. As such, the decision of the Supreme Court in the case of HJ & HT is in line with the conclusions of other key convention signatories.

What the Supreme Court has done, however, is to ensure that decision makers in this country have clear guidance as to the approach that should be taken in gay claims in order to ensure that it is those who are genuinely in need who are provided with protection.

The Supreme Court has made it extremely clear that the decision as to whether a gay asylum applicant should be allowed to remain in the UK remains a fact-sensitive enquiry. In each case there must be a detailed examination as to whether it is accepted the applicant is gay, what the treatment of gay people is in their country, how they would act on return and where a person is forced to be discreet, whether this is due to a well founded fear of what would happen to them if they were not to do so.

There is no danger that this decision will allow 'bogus' or false claims to be allowed. Rather, what the court has succeeded in doing is ensuring that all cases are decided fairly and on an individual and fact sensitive basis.

It is because the Supreme Court decision now provides clear and fair guidance to decision makers in deciding the claims of gay applicant's that it must be heralded as a landmark decision and a progression that cannot be anything other than welcomed.

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