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UK Supreme Court LGBT asylum 'discretion test' Judgment

UK Supreme Court LGBT asylum 'discretion test' Judgment

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Published by LGBT Asylum News

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Categories:Business/Law
Published by: LGBT Asylum News on Jul 07, 2010
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07/19/2013

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Trinity Term[2010] UKSC 31
On appeal from: [2009] EWCA Civ 172
JUDGMENTHJ (Iran) (FC) (Appellant)
v
Secretary of State forthe Home Department (Respondent) and one otheractionHT (Cameroon) (FC) (Appellant)
v
Secretary of State for the Home Department (Respondent) andone other action
before
Lord Hope, Deputy PresidentLord RodgerLord WalkerLord CollinsSir John Dyson SCJ
 
JUDGMENT GIVEN ON7 July 2010
 
Heard on 10, 11 and 12 May 2010
 
 
 
 Appellant (HJ) Respondent 
Raza Husain QC Charles BourneLaura Dubinsky Jane Collier(Instructed by ParagonLaw)(Instructed by TreasurySolicitor)
 Interveners in both appeals Intervener 
 
(Equality & Human RightsCommission) Intervener (United Nations High Commissioner for  Refugees)
 Karon Monaghan QC Michael Fordham QCJessica SimorHelen LawNaina Patel(Instructed by theCommission)(Instructed by Baker &McKenzie LLP)
 Appellant (HT) Respondent 
Monica Carss-Frisk QC Charles BournePeter Jorro Paul Greatorex(Instructed by Wilson &Co Solicitors)(Instructed by TreasurySolicitor)
 
 
Page 2
LORD HOPE
1.
 
These appeals raise the question as to the test which is to be applied whenconsidering whether a gay person who is claiming asylum under the Conventionrelating to the Status of Refugees 1951, as applied by the 1967 Protocol (“theConvention”) has a well-founded fear of persecution in the country of his or hernationality based on membership of that particular social group.2.
 
The need for reliable guidance on this issue is growing day by day.Persecution for reasons of homosexuality was not perceived as a problem by theHigh Contracting Parties when the Convention was being drafted. For many yearsthe risk of persecution in countries where it now exists seemed remote. It was thepractice for leaders in these countries simply to insist that homosexuality did notexist. This was manifest nonsense, but at least it avoided the evil of persecution.More recently, fanned by misguided but vigorous religious doctrine, the situationhas changed dramatically. The ultra-conservative interpretation of Islamic law thatprevails in Iran is one example. The rampant homophobic teaching that right-wingevangelical Christian churches indulge in throughout much of Sub-Saharan Africais another. The death penalty has just been proposed in Uganda for persons whoengage in homosexual practices. Two gay men who had celebrated theirrelationship in a public engagement ceremony were recently sentenced to 14 years’imprisonment in Malawi. They were later pardoned in response to internationalpressure by President Mutharika, but he made it clear that he would not otherwisehave done this as they had committed a crime against the country’s culture, itsreligion and its laws. Objections to these developments have been greeted locallywith derision and disbelief.3.
 
The fact is that a huge gulf has opened up in attitudes to and understandingof gay persons between societies on either side of the divide. It is one of the mostdemanding social issues of our time. Our own government has pledged to do whatit can to resolve the problem, but it seems likely to grow and to remain with us formany years. In the meantime more and more gays and lesbians are likely to have toseek protection here, as protection is being denied to them by the state in theirhome countries. It is crucially important that they are provided with the protectionthat they are entitled to under the Convention – no more, if I may be permitted tocoin a well known phrase, but certainly no less.

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