HJ (Iran) v Secretary of State for the Home Department

HJ and HT were gay men who were citizens of Iran and Cameroon respectively. They each applied for asylum in the UK on the basis that they had a well-founded fear of being persecuted if they were returned to their countries of origin. The Home Secretary rejected their claims, and both lost their appeals to the Asylum and Immigration Tribunal and the Court of Appeal. They sought leave to appeal to the Supreme Court, which was granted. The appeals were heard in May 2010 and the Supreme Court gave its judgment in July 2010. The central issue was whether a gay person who has a well-founded fear of persecution if he lives openly in his home country, but would live discreetly if returned to that country, has a well-founded fear of persecution for the purposes of the Refugee Convention. The Court of Appeal had held that the gay person must be willing to tolerate the need for discretion if his claim was to succeed. The Supreme Court held that this approach was wrong. The Court held that if a gay person has a well-founded fear of persecution if he lives openly, then he will also have a well-founded fear of persecution if he lives discreetly, even though the harm he fears will be avoided by his discreet behaviour. The Supreme Court held that it is contrary to the purpose of the Convention to deny protection to a gay person on the basis that he would have to conceal his sexual orientation in order to avoid persecution. The Supreme Court allowed the appeals and remitted the cases to the Asylum and Immigration Tribunal for reconsideration in the light of its judgment.