UK - Supreme Court, 7 July 2010, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31

The applicants were homosexual men from Iran and Cameroon respectively. They had claimed asylum on the basis that they would face persecution in Iran and Cameroon because of their sexual orientation.  In both countries consenting adults engaging in homosexual conduct was a criminal offence that could be punished by imprisonment or, in the case of Iran, execution. However, the Court of Appeal had found that both applicants would hide their sexual orientation if returned. The Iranian appellant would not come to the attention of the authorities and it would be reasonable for the Cameroonian applicant to internally relocate to avoid discovery and a repetition of the assault he had suffered. The Court of Appeal found that, taking into account the situation in the country of origin, it would be “reasonably tolerable” for both applicants to conceal their sexual identity.

The Supreme Court allowed the appeal on the basis that, firstly, it was not in dispute that homosexuals are members of a particular social group being defined by the immutable characteristic of their sexuality.  Further, 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, is to deny the fundamental right to be who he or she is. Persecution includes death, torture or imprisonment.  The 1951 Convention would not provide protection to those who faced discrimination on the grounds of sexual orientation or who face disapproval from their family or society. However, one of the purposes of the Convention is to counteract discrimination and it does not permit or envisage applicants being returned to their country ‘on condition’ that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution if the person persecuted can eliminate the harm by taking avoiding action. Therefore, the Court of Appeal’s test of “reasonable tolerability” was incorrect.

Hathaway, J. The Law of Refugee Status Butterworths (1991), p 112.