Suprema Corte del Reino Unido reconoce derecho de asilo a gays perseguidos

Milestone victory for gay refugees

The supreme court ruling that two gay men from Iran and

Cameroon have the right to asylum in the UK is progress

Bernard Keenan (The Guardian)

Today's unanimous decision by five judges of the UK supreme court in favour of the appellants in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 represents a milestone in legal history. It secures the rights of LGBT people in need of protection from persecution, and will bring to an end years of discriminatory policy by the immigration services.

Although the coalition government made the rather bland and ambiguous announcement in May that LGBT asylum seekers would not be removed to countries where they face persecution, the Home Office has continued to argue in favour of the test established by Maurice Kay LJ in J (Iran) [2006] EWCA Civ 1238, upheld last year in the court of appeal: that an immigration appeal tribunal must ask whether exercising "discretion" around issues of one's sexuality is something that a person can "reasonably be expected to tolerate" if returned to their home country. That argument has been rejected and a new test laid out in its stead.

The reasons for rejecting the Home Office line are manifold. For one, the court finds that there is no real difference between a finding that someone would in fact choose to avoid persecution by concealment of their sexuality, and the immigration services basically requiring someone to go home and do the same. This argument is contrary to the spirit and intention of the refugee convention.

The Home Office argument paralleled the idea that if Anne Frank could have avoided persecution by hiding forever in the attic, then she wouldn't have qualified as a refugee. Sir John Dyson calls this argument "absurd and unreal". The test essentially creates two parallel persecutions – the objective risk from the state or society one comes from, and the living lie required to hide from it.

Moreover, the court holds that there is no possible yardstick for measuring when suppressing ones sexuality is "reasonably tolerable". The question the court of appeal posed regarding what is "reasonably tolerable" is fundamentally unanswerable. As Lord Rodger points out, in the final analysis, "there is no relevant standard since it is something which no one should have to endure".

Rodger lays out the new approach for asylum appeal tribunals to follow. It can be summarised as follows: First, is the appellant gay, or someone who would be treated as gay by potential persecutors in his or her home country?

Second, is there evidence that someone who lived an openly gay life would be at risk of persecution in that country? Discrimination is not enough – the refugee convention doesn't exist to protect people from unpleasant social pressures or allow for more liberal lifestyles in the host country. Persecution means more serious harm, and clearly not every country in the world will hold such a high risk as others.

Third, how would the appellant actually live if returned? If they would live openly, then clearly they are a refugee. But if they would live "discreetly", a fourth question must be asked: why will they exercise "discretion"? If it is simply to avoid social pressure, family shame, or some discrimination, then the claim will fail. But if a fear of persecution plays any material part in the decision to hide, then the appellant is a refugee. As Rodger says: "[To] reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right the convention exists to protect – his right to live freely and openly as a gay man without fear of persecution."

It is this point that makes this judgement so significant. Lord Hope begins by pointing out that the refugee convention was not drafted with sexuality in mind. That it has become such an important issue today is attributed in part to the rise of religiously motivated ideologies – Christian, Muslim or otherwise – in certain countries.

But this understates the point. It is only because of the progress gay rights have made in the west during the last 50 years that the law can now clearly see it as an issue of fundamental human rights. It is only by the distance we have travelled as a society that we are now obliged to offer protection to those who would face prison, rape, torture or death for their sexual identity.

Equally important is that while one paragraph makes reference to stereotypes of gay men enjoying Kylie Minogue and "exotically coloured cocktails", it does so only to make the broader point that sexuality is a living thing, expressed in infinitely different and individual ways, and that as a result each individual's case must be treated with the respect and attention it deserves, rather than looking solely at some prescribed categories of behaviour or preconceptions.

Key to any democracy is a living law. This case shows the continued vitality of the refugee convention and its ability to move with changing times. This judgement should be celebrated as a victory for progressive thought; but at the same time it is nothing more than justice being done.