Gay men: you have a legal right to enjoy Kylie

Today's Supreme Court ruling in the case of two gay asylum seekers who had been denied leave to stay in Britain on the grounds that they would be persecuted in their countries of origin sets an important precedent. The previous government - supported by lower courts - had argued that because it gay people were unlikely to be persecuted if they behaved "discreetly", they could not claim to have a well-grounded fear of persecution, as required by the relevant convention. Whatever the truth of that, I wondered how someone being returned to their home country after failing to obtain asylum on the grounds of their being gay could possibly escape the attention of the authorities, however discreet their behaviour.

In the event, today's decision rejected the "discretion" argument. Being forced to live one's sexual life in hiding itself amounts to persecution, the judges decided. Gay people, said Lord Hope, "are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight." The judges adopted the broad modern notion of a gay identity, in other words: being gay is about what you are, not just about what you do. This led one of them, Lord Rodger, to offer an insight into his own perception of the gay scene (and a gift to the Mail's sub-editors):

In short, what is protected is the applicant's right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.

As a heterosexual non-rugby-playing Kylie fan, I object. So does my beer-drinking gay best friend.

Anyway, gay asylum seekers are now safe. But why stop there? It's a bit facetious to claim Iranian mullet-wearers will now seek protection in the UK from the state persecution of their "un-Islamic" hairstyles, but the categories of person protected under the Regugee Convention - dating from 1951 - are much broader than those enshrined in more recent anti-discrimination laws. The convention accords protection to anyone with "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." Gay people are a particular social group. But so are many people denied recourse under British law because they lack a characteristic appealing to the previous Labour government.

The two men who brought this appeal came from Iran and Cameroon. The propensity of the Iranian state to imprison, and sometimes execute, gay people is well-known, but the experience of the Cameroonian appellant, described by Lord Rodger, struck me as especially horrific:

In the case of HT it is agreed that, following an occasion when he was seen kissing his then (male) partner in the garden of his home, the appellant was attacked by a crowd of people when leaving church. They beat him with sticks and threw stones at him. They pulled off his clothes and tried to cut off his penis with a knife. He attempted to defend himself and was cut just above the penis and on his hand. He was threatened with being killed imminently on the ground that "you people cannot be changed". Police officers arrived and demanded to know what was going on and why the crowd were assaulting him. They were told it was because he was gay. One of the policemen said to the appellant "How can you go with another man?" and punched him on the mouth. The policemen then kicked him until he passed out. As a result of the injuries which he received he was kept in hospital for two months. After that, he was taken home by a member of his church who told him that he feared for his life and safety if he remained in Cameroon.

After all that, the Home Office wanted to send him back home. In some ways, today's judgement was academic, since the new government had already decided to end the practice of deporting gay asylum seekers. Another high-profile asylum seeker, lesbian Iranian actress Kiana Firouz, who had also been threatened with deportation, was granted the right to stay here last month. As the star of a film on the subject of gay asylum-seekers, the danger she would in Iran was obvious - to everyone except the UK Border Agency, that is. Today, though, I heard Labour's Tessa Jowell welcoming the Supreme Court decision, a remarkable change of heart from a member of a government that until a few months ago was fighting these cases with every weapon in its legal armoury.

Here are some key passages from the judgement, which is well worth reading in full:

Lord Hope:

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 the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years' imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country's culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief.

3. The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention – no more, if I may be permitted to coin a well known phrase, but certainly no less.

11. The group is defined by the immutable characteristic of its members' sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person's race. But, unlike a person's religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.

14...But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.

17. In situations such as those presented by these appeals the fact that members of the particular social group are persecuted may not be seriously in issue. In Iran, where the death penalty exists, persons have been hanged simply because they are gay. In Cameroon homosexuality is illegal and the sanctions for it include sentences of up to five years imprisonment. Although prosecutions are rare, homosexuals are liable to be denounced and subjected to acts of violence and harassment against which the state offers no protection. But the situation in the country of origin is only the beginning, not the end, of the inquiry. The Convention directs attention to the state of mind of the individual. It is the fear which that person has that must be examined and shown to be well-founded. In cases where the fear is of persecution for reasons of religion or political opinion, it may be necessary to examine the nature and consequences of any activity that the applicant claims he or she may wish to pursue if returned to the country of nationality. It will not be enough for the person merely to assert that persons who are of that religion or political opinion are liable to be persecuted. The question is, what will the applicant actually do, and does what he or she will in fact do justify the fear that is complained of?

22. The submission that it is proper to examine the question whether it would be objectively reasonable for the applicant to be expected to tolerate some element of concealment – I would prefer not to use the word "discretion", as this euphemistic expression does not tell the whole truth – when he is returned to the country of his nationality cannot be dismissed so easily. Behaviour which reveals one's sexual orientation, whether one is gay or straight, varies from individual to individual. It occupies a wide spectrum, from people who are naturally reticent and have no particular desire to establish a sexual relationship with anybody to those who wish, for various reasons, to proclaim in public their sexual identity. Social and family disapproval of overt sexual behaviour of any kind, gay or straight, may weigh more heavily with some people than others. Concealment due to a well-founded fear of persecution is one thing. Concealment in reaction to family or social pressures is another. So one must ask why the applicant will conduct himself in this way. A carefully nuanced approach is called for, to separate out those who are truly in need of surrogate protection from those who are not.

35...The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

Lord Rodger

62. Having examined the relevant evidence, the Secretary of State or the tribunal may conclude, however, that the applicant would act discreetly partly to avoid upsetting his parents, partly to avoid trouble with his friends and colleagues, and partly due to a well-founded fear of being persecuted by the state authorities. In other words the need to avoid the threat of persecution would be a material reason, among a number of complementary reasons, why the applicant would act discreetly. Would the existence of these other reasons make a crucial difference? In my view it would not. A Jew would not lose the protection of the Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti-semitism. Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention. It follows that the question can be further refined: is an applicant to be regarded as a refugee for purposes of the Convention in circumstances where the reality is that, if he were returned to his country of nationality, in addition to any other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution because of being gay?

65.... so far as the social group of gay people is concerned, the underlying rationale of the 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. Their home state should protect them and so enable them to live in that way. If it does not and they will be threatened with serious harm if they live openly, then most people threatened with persecution will be forced to take what steps they can to avoid it. But the applicant's country of nationality does not meet the standard of protection from persecution which the Convention envisages simply because conditions in the country are such that he would be able to take, and would in fact take, steps to avoid persecution by concealing the fact that he is gay. On the contrary, the fact that he would feel obliged to take these steps to avoid persecution is, prima facie, an indication that there is indeed a threat of persecution to gay people who live openly. His country of nationality is therefore not affording him the necessary level of protection. So the receiving country should.

77. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.

82. When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly".

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution.


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