The case concerned two gay men who had sought asylum in the UK on the basis that they would face persecution on the grounds of sexual orientation if returned to their home countries. HJ is Iranian and claimed asylum on arrival in the United Kingdom on 17 December 2001. HT is a citizen of Cameroon who claimed asylum on 19 January 2007. Both men had a well-founded fear that they would be persecuted if they were to be returned to their home countries. Both of the men’s asylum cases were refused and their appeals to the Immigration Tribunal dismissed.
The question the court considered was whether it would be objectively reasonable for the applicant to be expected to tolerate some element of concealment of their sexual orientation if they were to return to their home countries. In their countries of origin (Iran and Cameroon), engaging in same-sex sexual acts is punishable by death. In HJ’s case at the Immigration Tribunal, the Tribunal stated:
‘On any return, to avoid coming to the attention of the authorities because of his homosexuality he would necessarily have to act discreetly in relation to it. We are satisfied that as a matter of fact he would behave discreetly.’
In HT’s case at the Immigration Tribunal, the Tribunal found that if he relocated within Cameroon it would be ‘relatively safe’ for him to practice ‘his sexual orientation in private and not come to the attention of the authorities.’
The Supreme Court held that no-one should be expected to conceal who they are in order to avoid persecution. The court allowed the appeal and remitted it to the Tribunal for further consideration. It highlighted that the ‘the underlying rationale of the [Refugee] Convention is that they should be able to live freely and openly as gay men and lesbian women, without fearing that they may suffer harm of the requisite intensity or duration because they are gay or lesbian.’ The court went on to state that where a person’s home country did not afford them protection the receiving country should. The judgment also provided a framework for decision making on asylum cases at paragraphs 35 (Lord Hope) and 82 (Lord Rodger).