Legal 8.40

Homosexuals and Asylum

The decision of the Supreme Court on 7 July 2010 on this subject has attracted much attention from the media. This is a brief note on the subject which will be followed up by a more detailed paper after there has been time to study the Court's judgments in full.

The Appellants were two men, one from Iran and the other from Cameroon, who had applied for asylum on the basis that they would face persecution on grounds of their being homosexuals if they were returned to their countries of origin. In both countries it is an offence for consenting adults to engage in homosexual acts. Applications for asylum are dealt with under the United Nations 1951 Convention on the Status of Refugees, which extends the protection of asylum to persons who can show that if they are returned to their countries of origin they would be at risk of persecution for a number of specified reasons, including their being members of particular social groups. The expression "particular social group" has been accepted as including groups defined by a common sexual orientation.

The Court of Appeal, following earlier decisions by the UK Border Agency and immigration judges, found that the appellants could conceal their sexual orientation if returned to their countries of origin, would therefore not come to the attention of the authorities and thus would not be at risk of persecution. Their situation if so returned could be regarded as "reasonably tolerable". This decision was appealed to the Supreme Court, which allowed the appeal on a number of grounds, the main one being that to compel a homosexual person to conceal his sexual orientation is to deny him a fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of like sexual orientation as are heterosexuals.

There are many countries in which engaging in homosexual acts is a criminal offence or in which homosexuals may be subjected to varying forms of discriminatory treatment. The consequence of this decision will be to increase by many thousands the numbers of persons who may be eligible for asylum in the United Kingdom. It may well also generate a large number of claims that will be difficult to determine. It is, for example, likely that organised people smugglers will tell those clients who come from countries where homosexual acts are illegal to claim that they are homosexual. If they do so, their claims will have to be considered in a process that can often take many months during which applicants are supported by public funds. According to "Stonewall" a pressure group for homosexuals, there are 80 countries where consensual homosexuality is illegal.

8 July, 2010