HJ (Iran) and Another - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain

Spijkerboer T. (ed.) (2013) Fleeing Homophobia. Sexual Orientation, Gender Identity and Asylum, Oxon: Routledge, 55-81, 2013

24(4) International Journal of Refugee Law 815, 2012

UTS: Law Research Paper No. 2013/4

33 Pages Posted: 28 Sep 2013 Last revised: 17 Oct 2013

Janna Wessels

University of Technology Sydney, Faculty of Law; VU University Amsterdam - Faculty of Law

Date Written: August 17, 2011

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.

Keywords: refugee, refugee law, sexual orientation, sexuality-based asylum claims, asylum, UK, HJ (Iran) and HT (Cameroon), Discretion, Supreme Court

Suggested Citation

Wessels, Janna, HJ (Iran) and Another - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain (August 17, 2011). Spijkerboer T. (ed.) (2013) Fleeing Homophobia. Sexual Orientation, Gender Identity and Asylum, Oxon: Routledge, 55-81, 2013; 24(4) International Journal of Refugee Law 815, 2012; UTS: Law Research Paper No. 2013/4. Available at SSRN: https://ssrn.com/abstract=2331728

Janna Maria Wessels (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

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