Thu, 11 Aug 2016
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.
In a recent article published on the Free Movement blog, No5 barrister S Chelvan looks at the history of LGB asylum claims, presenting cases where binding EU law and published policy has not been applied by the home office and the devastating effect this new policy can have on gay asylum seekers.
Where binding EU law and published policy is not applied by the Home Office (Apata)
On the 29th of July, the Court of Appeal handed down judgement in the case of R (Aderonke Apata) v Secretary of State for the Home Department  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 ( 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 , 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 .
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) ). 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 UKSC 31;  1 AC 596 (‘the Kylie concert case’) at  (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 , Lord Collins at  and Lord Dyson at ).
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)  (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  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:
To read the full articlce please CLICK HERE
To view S Chelvan's Immigration and International Human Rights CV's please CLICK HERE