Gay asylum seekers do not have to "pretend sexuality does not exist"

A shake-up of asylum hearings has been prompted by the Supreme Court's ruling on homosexual applicants.

Home Secretary Theresa May has instructed tribunal judges to react immediately to the court's unanimous judgment that applications from gay asylum seekers cannot be thrown out on the grounds that the person can simply 'hide' themselves from persecution.

Deirdre Sheahan, the solicitor at Paragon Law who represented one of the two applicants, said: 'This landmark decision recognises that the correct focus must be on how the person would act if they were to be returned to their home country and if a material reason as to why they would have to conceal their sexuality is due to a well founded fear of the severe harm which would arise if they did not do so, then they should be afforded with protection.

'This recognises that a gay person entitled to live freely and openly without fear of severe ill-treatment in the same way as a straight person is entitled to.

'Such guidance is of fundamental importance for the safeguarding of those people who fear persecution based on their home country's treatment of gay persons.'

The Supreme Court rejected the Court of Appeal's '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 UN's Convention.

In the judgment of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 Lord Hope, said: 'To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny his fundamental right to be who he is.'

Instead, the case considered what counted as 'well-founded' fear of persecution, deciding that both HJ, a 40-year-old Iranian and HT, 36-year-old Cameroonian, would be at risk if returned to their home countries.

Welcoming the decision, Ms May said: 'We have already promised to stop the removal of asylum seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution.

'From today, asylum decisions will be considered under the new rules and the judgement gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case.'

 Lord Rodger offered a slightly more colourful explanation of the matter. Concluding a 20-page opinion agreeing with Lord Hope, he explained: 'In short, what is protected is the applicant's right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.'