Ireland - High Court, 12 November 2010, A. v Minister for Justice [2010] IEHC 519
Keywords:
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The applicant in this case claimed to fear persecution in Nigeria on account of his sexuality. A decision to affirm a deportation order against him was quashed on the basis that insufficient assessment was given to whether the applicant’s human rights would be infringed by the behaviour required of him in order to avoid persecution. The thrust of the refugee and subsidiary protection decisions in the case, and of the deportation decision, was that the applicant could hide his homosexuality and not therefore expose himself to persecution, prosecution or serious harm.
Facts:
The applicant claimed that he was gay and was discovered with his boyfriend by his boyfriend’s brother. He feared he would be beaten or killed by members of his own family or his boyfriend’s family. He also feared the police and the possible imposition of the death penalty. At his refugee interview the applicant had stated that there was no way that he could live in Nigeria without showing his sexuality. The applicant’s claims for refugee and subsidiary protection were refused on the basis, inter alia, that if gay men in Nigeria are discreet they are unlikely to be prosecuted or persecuted.
Decision & reasoning:
The Court (Ryan J.) found that
“Homosexuals are entitled to freedom of association with others of the same sexual orientation and to freedom of self-expression in matters that affect their sexuality. It is a breach of fundamental rights to compel a homosexual person to pretend that their sexuality does not exist or that the behaviour by which it manifests itself can be suppressed. Persecution does not cease to be persecution for the purposes of the Refugee Convention because those persecuted can eliminate the harm by taking avoiding action. Having said that, the persecution must be State sponsored or condoned in order to engage Refugee Convention rights and simple discrimination or family or social disapproval is not sufficient. ..”.
One key question had to be specifically addressed in the Minister’s consideration of the application to revoke, namely, how achieving safety by living discreetly could be reconciled with the relevant ECHR provisions and the fundamental human rights of the applicant to freedom of association and freedom of expression.
Outcome:
The decision to affirm the deportation order was quashed.
Observations/comments:
The decision is significant on account of its treatment of persecution on the grounds of homosexuality and in particular for the emphasis placed on freedom of expression and whether or not there is an onus on an individual fearing persecution to take measures to avoid harm, even if this involves curtailing their human rights.
Relevant International and European Legislation:
Cited Cases:
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| UK - Supreme Court, 7 July 2010, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 |
Other sources:
UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, 2008
Yogyakartha Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, 2007