Landmark Asylum Ruling
7th July 2010
The UK Supreme Court ruled today that two gay asylum seekers - facing persecution in their home countries- have the right to asylum in Britain.
The judgement ends a controversial stream of case law where LGBT asylum seekers facing ill-treatment on grounds of their sexual orientation were previously refused asylum and told that they could avoid ill treatment by concealing their sexuality and living discreetly.
Five Supreme Court judges unanimously overturned the English Court of Appeal's decision which refused the application of the two men who sought asylum from Iran and Cameroon - both countries where homosexuality is a criminal offence punishable by imprisonment and in the case of Iran, by the death penalty.
The grounds for this decision were that if they returned to their respective home countries, they could hide their sexuality and not come to the attention of the State authorities. This meant they would not be at risk of persecution, and accordingly neither party had a 'well-founded fear of persecution' that entitled him to protection under the UN Refugee Convention. This was a permissible refusal ground as long as the homosexual person's situation could be regarded as 'reasonably tolerable.'
The 'reasonable tolerabilility' test applied by the Court of Appeal was deemed contrary to the UN Refugee Convention.
Lord Rodger stated: "The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay."
Further, Lord Hope, Deputy President of the Supreme Court said: "To compel a homosexual person to pretend that his sexuality does not exist or to suppress the behaviour by which it manifests itself is to deny him his fundamental right to be who he is."
Jamie Kerr, Associate at Drummond Miller and specialist in asylum and immigration law welcomes this decision as it signifies a radical change in the way cases concerning LGBT asylum seekers fleeing persecution and ill-treatment will be approached.
Any asylum seeker whose case has been refused on these grounds should immediately contact a solicitor.
Drummond Miller LLP, 65 Bath Street, Glasgow, G2 2DD. Tel: 0141 332 0086