HJ (Iran) and HT (Cameroon) - Reflections on a new test for sexuality-based asylum claims in Britain

Weßels, J

HJ (Iran) and HT (Cameroon) - Reflections on a new test for sexuality-based asylum claims in Britain

Weßels, J

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Publication Type:: Journal Article
Citation:: International Journal of Refugee Law, 2012, 24 (4), pp. 815 - 839
Issue Date:: 2012-12-01

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Field	Value	Language
dc.contributor.author	Weßels, J	en_US
dc.date.issued	2012-12-01	en_US
dc.identifier.citation	International Journal of Refugee Law, 2012, 24 (4), pp. 815 - 839	en_US
dc.identifier.issn	0953-8186	en_US
dc.identifier.uri	http://hdl.handle.net/10453/23342
dc.description.abstract	The case HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 was celebrated as a 'fundamental shift in asylum law'. In this decision, the UK Supreme Court rejects the 'reasonably tolerable test' that had been applied in the case of the gay men HJ, a 40-year-old Iranian, and HT, a 36-year-old citizen of Cameroon. On the basis that the claimants could be reasonably expected to tolerate being discreet about their sexual identity in order to avoid persecution, their applications had been unsuccessful. This 'reasonably tolerable test', which was fairly well established in case law, was much contested and its rejection was overdue. Yet in their decision, the Justices not only reject this old test, they go a step further and formulate a new approach to be followed by tribunals in asylum claims on grounds of sexual orientation. This article argues that this new approach fails to discard 'discretion' as a concept in asylum cases as a whole, contrary to the submissions of the intervening parties in the case, namely, UNHCR and the Equality and Human Rights Commission. The new test continues to be constructed on 'discretion logic' - which is not tenable for a series of reasons. First, the test creates two distinguishable categories, openly demonstrated sexuality and concealed sexuality. Secondly, it assumes that this distinction and the underlying choice are relevant for assessing whether the applicant is at risk of persecution. Finally, the case relied heavily on the subjective element of assessing the 'fear' of persecution, which leads to a stricter test than necessary. The assessment of the existence of a well-founded fear of persecution in LGBT cases should instead be made without reference to whether or not the applicants would conceal their sexual orientation. © The Author (2013). Published by Oxford University Press. All rights reserved.	en_US
dc.relation.ispartof	International Journal of Refugee Law	en_US
dc.relation.isbasedon	10.1093/ijrl/ees057	en_US
dc.subject.classification	Law	en_US
dc.title	HJ (Iran) and HT (Cameroon) - Reflections on a new test for sexuality-based asylum claims in Britain	en_US
dc.type	Journal Article
utslib.citation.volume	4	en_US
utslib.citation.volume	24	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	closed_access
pubs.issue	4	en_US
pubs.publication-status	Published	en_US
pubs.volume	24	en_US

Abstract:

The case HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 was celebrated as a 'fundamental shift in asylum law'. In this decision, the UK Supreme Court rejects the 'reasonably tolerable test' that had been applied in the case of the gay men HJ, a 40-year-old Iranian, and HT, a 36-year-old citizen of Cameroon. On the basis that the claimants could be reasonably expected to tolerate being discreet about their sexual identity in order to avoid persecution, their applications had been unsuccessful. This 'reasonably tolerable test', which was fairly well established in case law, was much contested and its rejection was overdue. Yet in their decision, the Justices not only reject this old test, they go a step further and formulate a new approach to be followed by tribunals in asylum claims on grounds of sexual orientation. This article argues that this new approach fails to discard 'discretion' as a concept in asylum cases as a whole, contrary to the submissions of the intervening parties in the case, namely, UNHCR and the Equality and Human Rights Commission. The new test continues to be constructed on 'discretion logic' - which is not tenable for a series of reasons. First, the test creates two distinguishable categories, openly demonstrated sexuality and concealed sexuality. Secondly, it assumes that this distinction and the underlying choice are relevant for assessing whether the applicant is at risk of persecution. Finally, the case relied heavily on the subjective element of assessing the 'fear' of persecution, which leads to a stricter test than necessary. The assessment of the existence of a well-founded fear of persecution in LGBT cases should instead be made without reference to whether or not the applicants would conceal their sexual orientation. © The Author (2013). Published by Oxford University Press. All rights reserved.

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http://hdl.handle.net/10453/23342