HJ and HT v Home Secretary
Encyclopedia
HJ and HT (Cameroon) v Secretary of State for the Home Department
[ 2010
] UKSC
31 is a case decided by the Supreme Court of the United Kingdom
concerning two men, from Iran
and Cameroon
respectively, claiming asylum
in the United Kingdom
on the grounds of their homosexuality. The men's claims had previously been turned down on the basis they would not face persecution in their own countries if they would conceal their sexuality. The appeal therefore centred on the question as to whether the men on their return could reasonably be expected to tolerate this requirement of discretion; the so-called 'discretion' or 'reasonable tolerability' test. Interventions were made by the Equality and Human Rights Commission and the United Nations High Commissioner for Refugees
.
The case was heard on 10-12 May 2010 with a judgement delivered on 7 July 2010, in which the Court ruled unanimously that the men could not be expected to conceal their sexuality in this way, and that it was wrong to apply the so-called 'discretion test' to such claims. The cases were then both remitted to be reconsidered according to the advice contained in the judgement.
man who arrived in the United Kingdom
on 17 December 2001 and claimed asylum
. HT is a gay man from Cameroon
who had been on his way to Montreal
when he was arrested at Gatwick Airport
, London
, on 19 January 2007 for using a false passport, at which time he claimed asylum.
The United Kingdom is a party to the United Nations
Convention Relating to the Status of Refugees
, which defines a refugee as "a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion... is unable or, owing to such fear, is unwilling to return to [his country of nationality]." Homosexuality is generally accepted, and was accepted in this case, as forming membership of a particular social group.
Asylum in the United Kingdom is controlled by the UK Border Agency
, part of the Home Office
, which refused asylum in both cases. Both men appealed their individual decisions without success, arriving in a conjoined appeal to the Court of Appeal (Pill
and Keene LJJ
and Sir Paul Kennedy), turned down on 10 March 2009. The Court of Appeal found that the Asylum and Immigration Tribunal
had been entitled to find that HJ could reasonably be expected to tolerate the need for discretion on his return to Iran, and therefore was not entitled to asylum. The Court found that HT would be discreet on his return to Cameroon, and that he had not therefore established that there was a real risk of persecution. The Court decided that, on the basis of the 'discretion test', a State party to the Refugee Convention would be entitled to return a homosexual asylum-seeker to his country of origin if he would conceal his identity and sexuality and it would not be unreasonable to expect him to tolerate this.
Lord Hope
, Lords Rodger
, Walker
and Collins and Sir John Dyson
, rejected the 'discretion test', finding that, according to Lord Hope, "to pretend that [a person's sexual orientation or sexuality] does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are."
Lord Rodger stated in his speech that a consideration of sexual identity should not be restricted to participation in particular sexual acts, but to all aspects of a person's life:
The cases were both remitted to the Tribunal for reconsideration taking into account the guidelines provided by the Supreme Court.
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
2010 Judgments of the Supreme Court of the United Kingdom
This is a list of the judgments given by the Supreme Court of the United Kingdom in 2010 and statistics associated therewith. Since the Supreme Court began its work on 1 October 2009, this year was its first full year of operation. In total, 58 cases were heard in 2010.The table lists judgments...
UKSC
UKSC may refer to:*Supreme Court of the United Kingdom, the supreme court in all matters under English law, Northern Irish law and Scottish civil law*UK Strength Council, a British sport governing body for strongmen competitions...
31 is a case decided by the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
concerning two men, from Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
and Cameroon
Cameroon
Cameroon, officially the Republic of Cameroon , is a country in west Central Africa. It is bordered by Nigeria to the west; Chad to the northeast; the Central African Republic to the east; and Equatorial Guinea, Gabon, and the Republic of the Congo to the south. Cameroon's coastline lies on the...
respectively, claiming asylum
Right of asylum
Right of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries...
in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
on the grounds of their homosexuality. The men's claims had previously been turned down on the basis they would not face persecution in their own countries if they would conceal their sexuality. The appeal therefore centred on the question as to whether the men on their return could reasonably be expected to tolerate this requirement of discretion; the so-called 'discretion' or 'reasonable tolerability' test. Interventions were made by the Equality and Human Rights Commission and the United Nations High Commissioner for Refugees
United Nations High Commissioner for Refugees
The Office of the United Nations High Commissioner for Refugees , also known as The UN Refugee Agency is a United Nations agency mandated to protect and support refugees at the request of a government or the UN itself and assists in their voluntary repatriation, local integration or resettlement to...
.
The case was heard on 10-12 May 2010 with a judgement delivered on 7 July 2010, in which the Court ruled unanimously that the men could not be expected to conceal their sexuality in this way, and that it was wrong to apply the so-called 'discretion test' to such claims. The cases were then both remitted to be reconsidered according to the advice contained in the judgement.
Facts
HJ is a gay IranianIran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
man who arrived in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
on 17 December 2001 and claimed asylum
Right of asylum
Right of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries...
. HT is a gay man from Cameroon
Cameroon
Cameroon, officially the Republic of Cameroon , is a country in west Central Africa. It is bordered by Nigeria to the west; Chad to the northeast; the Central African Republic to the east; and Equatorial Guinea, Gabon, and the Republic of the Congo to the south. Cameroon's coastline lies on the...
who had been on his way to Montreal
Montreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...
when he was arrested at Gatwick Airport
London Gatwick Airport
Gatwick Airport is located 3.1 miles north of the centre of Crawley, West Sussex, and south of Central London. Previously known as London Gatwick,In 2010, the name changed from London Gatwick Airport to Gatwick Airport...
, London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
, on 19 January 2007 for using a false passport, at which time he claimed asylum.
The United Kingdom is a party to the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention Relating to the Status of Refugees
Convention Relating to the Status of Refugees
The United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not...
, which defines a refugee as "a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion... is unable or, owing to such fear, is unwilling to return to [his country of nationality]." Homosexuality is generally accepted, and was accepted in this case, as forming membership of a particular social group.
Asylum in the United Kingdom is controlled by the UK Border Agency
UK Border Agency
The UK Border Agency is the border control body of the United Kingdom government and part of the Home Office. It was formed on 1 April 2008 by a merger of the Border and Immigration Agency , UKvisas and the Detection functions of HM Revenue and Customs...
, part of the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
, which refused asylum in both cases. Both men appealed their individual decisions without success, arriving in a conjoined appeal to the Court of Appeal (Pill
Malcolm Pill
Sir Malcolm Thomas Pill is the longest-serving Lord Justice of Appeal, and the most senior member of the Court of Appeal of England and Wales who does not head a division of that court or of the High Court....
and Keene LJJ
LJJ
LJJ might be an acronym or abbreviation for:*Long Josephson junction*Lords Justice of Appeal...
and Sir Paul Kennedy), turned down on 10 March 2009. The Court of Appeal found that the Asylum and Immigration Tribunal
Asylum and Immigration Tribunal
The Asylum and Immigration Tribunal was a tribunal constituted in the United Kingdom with jurisdiction to hear appeals from many immigration and asylum decisions...
had been entitled to find that HJ could reasonably be expected to tolerate the need for discretion on his return to Iran, and therefore was not entitled to asylum. The Court found that HT would be discreet on his return to Cameroon, and that he had not therefore established that there was a real risk of persecution. The Court decided that, on the basis of the 'discretion test', a State party to the Refugee Convention would be entitled to return a homosexual asylum-seeker to his country of origin if he would conceal his identity and sexuality and it would not be unreasonable to expect him to tolerate this.
Judgment
The Supreme Court, comprising Deputy PresidentDeputy President of the Supreme Court of the United Kingdom
The Deputy President of the Supreme Court of the United Kingdom is the second most senior judge of the Supreme Court of the United Kingdom, after the President of the Supreme Court...
Lord Hope
David Hope, Baron Hope of Craighead
James Arthur David Hope, Baron Hope of Craighead, is a Scottish judge and Deputy President of the Supreme Court of the United Kingdom, having previously been the Second Senior Lord of Appeal in Ordinary.-Early life:...
, Lords Rodger
Alan Rodger, Baron Rodger of Earlsferry
Alan Ferguson Rodger, Baron Rodger of Earlsferry, FRSE, FBA, PC was a Scottish lawyer and Justice of the Supreme Court of the United Kingdom....
, Walker
Robert Walker, Baron Walker of Gestingthorpe
Robert Walker, Baron Walker of Gestingthorpe, PC, QC is an English barrister and Justice of the Supreme Court of the United Kingdom...
and Collins and Sir John Dyson
John Dyson (judge)
John Anthony Dyson, Lord Dyson is a Justice of the Supreme Court of the United Kingdom. He is the second justice, after Lord Clarke, to be appointed directly to that court, and the first not to be a peer. However, by Royal Warrant, like all future appointees, he is styled "Lord Dyson" for life...
, rejected the 'discretion test', finding that, according to Lord Hope, "to pretend that [a person's sexual orientation or sexuality] does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are."
Lord Rodger stated in his speech that a consideration of sexual identity should not be restricted to participation in particular sexual acts, but to all aspects of a person's life:
The cases were both remitted to the Tribunal for reconsideration taking into account the guidelines provided by the Supreme Court.
See also
- Right of asylumRight of asylumRight of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries...
- LGBT rights in IranLGBT rights in IranLGBT rights in Iran since the Iranian Revolution of 1979 have come in conflict with the penal code, with international human rights groups claiming floggings and death sentences of lesbian, gay and bisexual individuals. Transsexuality in Iran is legal if accompanied by a sex change operation;...
- LGBT rights in Cameroon
- LGBT rights in the United Kingdom
- 2010 Judgments of the Supreme Court of the United Kingdom2010 Judgments of the Supreme Court of the United KingdomThis is a list of the judgments given by the Supreme Court of the United Kingdom in 2010 and statistics associated therewith. Since the Supreme Court began its work on 1 October 2009, this year was its first full year of operation. In total, 58 cases were heard in 2010.The table lists judgments...
External links
- HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department
[2010] UKSC 31 7 July 2010 - HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department
[2009] EWCA Civ 172 10 March 2009 - J v Secretary of State for the Home Department
[2006] EWCA Civ 1238 26 July 2006