We often act on behalf of gay asylum seekers who fear persecution on the basis of their homosexuality.
On the face of it these cases should be straight forward, given that homosexuality is illegal in many countries. However, in order to be a successful asylum seeker, one has to appreciate the importance of a leading case called HJ (Iran). This case sets out the approach to be followed by Tribunals and decision makers who decide whether a person is entitled to asylum on the basis of their sexual orientation. The questions a decision maker has to ask themselves before making a decision as to whether a person is entitled to asylum on the basis of sexual orientation are as follows:
1. Is it reasonably likely that the claimant is gay or LGBQ or will be perceived to be gay or LGBQ?
This question is really about the risk of persecution and the standard of proof is "real risk." The claimant will have to demonstrate that there is a real risk that they will be persecuted because they are gay or LGBQ. This of course also applies to those who will be treated as gay by potential prosecutors. Decision makers must not rely on stereotypes when deciding on a person's sexual orientation.
2. Is there a real risk that a gay or LGBQ applicant would face persecution if they lived openly in their country of origin?
3. Would the applicant in fact live openly or would they conceal their sexual orientation if returned to their country of origin?
In respect of these questions the Supreme Court gives two possibilities. The individual might live openly and therefore might be exposed to a real risk of persecution or they might live discreetly and avoid persecution. If the former, then this is the end of the story and the applicant has a well-founded fear of persecution. However, if they are not willing to face the risk of persecution, then there are important points to bear in mind before concluding that the person is not gay or that they will not be treated as gay.
Firstly, many people will simply not be able to avoid being treated as gay whether they like it or not. For example, because of their appearance, presentation, lifestyle choice or relationship or because they are already known to be LGBQ by potential persecutors. If a person has to conceal their sexuality to avoid persecution, for example because they have to lie or refuse to answer questions honestly or pretend to be in a relationship with someone else these actions will amount to deceit or concealment and then the question is why are they behaving in such a way. Is it in order to avoid persecution? Or is it for another reason?
If it is in order to avoid persecution, then their application should be successful, but if they conceal their sexual orientation for other reasons, for example because of social pressure, avoiding harming their relationship with family and friends then they will not be entitled to asylum on the basis of their sexual identity. Lord Rogers makes this clear in his judgement in the case of HJ (Iran) saying that the need to avoid the threat of persecution would be the material reason among a number of complimentary reasons why an applicant can act discreetly.