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HJ And HT V Home Secretary

Ah, another case. Don't expect me to hold your hand. I'm here to dissect it, not coddle you through it.

HJ and HT v Home Secretary Court

This isn't just some dusty legal precedent; it's the Supreme Court of the United Kingdom wrestling with the messy reality of human lives and the obligations of nations. The full, rather dramatic, title is HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department. It was handed down on the 7th of July, 2010, and carries the citation [2010] UKSC 31. You can find the transcript if you're truly dedicated to the minutiae.

Before it landed on the Supreme Court's doorstep, this tangled mess had already been through the lower courts. Specifically, it was previously heard in the Court of Appeal under the citation [2009] EWCA Civ 172. A rather tedious affair, I'm sure.

The esteemed judges who sat on this bench were Lord Hope, Lord Rodger, Lord Walker, Lord Collins, and Sir John Dyson. A formidable panel, tasked with untangling a knotty issue of asylum.

The crux of the matter? The Supreme Court, in its infinite wisdom, unanimously decided that the "reasonable tolerability" test, as applied by the Court of Appeal, was fundamentally at odds with the Convention. It was deemed an unacceptable standard going forward. Consequently, the cases of HJ and HT were sent back for a fresh look, guided by the detailed pronouncements of the Supreme Court. The keyword here, and the heart of the matter, is the Right of asylum.

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

This case, officially documented as [2010] UKSC 31, is where the Supreme Court of the United Kingdom grappled with the fates of two men, one from Iran and the other from Cameroon, both seeking sanctuary in the United Kingdom due to their homosexuality. Their pleas had been dismissed on the grounds that they could, theoretically, hide their sexual orientation and thus avoid persecution. This, naturally, led to the central question: could these men reasonably be expected to live a life of constant concealment? This was the infamous 'discretion' or 'reasonable tolerability' test. It's hardly surprising that influential bodies like the Equality and Human Rights Commission and the United Nations High Commissioner for Refugees felt compelled to weigh in.

The hearings took place between the 10th and 12th of May, 2010, with the final judgment delivered on the 7th of July, 2010. The Court's verdict was unequivocal: these men could not be expected to suppress such a fundamental aspect of their identity. The 'discretion test' was declared unlawful. Their cases were then remanded for reassessment, following the Supreme Court's clear directives.

Facts

Let's get to the sordid details. HJ, a gay man from Iran, arrived in the United Kingdom on the 17th of December, 2001, and immediately sought asylum. HT, a gay man from Cameroon, found himself in a similar predicament. He was apprehended at Gatwick Airport on the 19th of January, 2007, while attempting to transit through London to Montreal, using a forged passport. It was at this point he also claimed asylum.

The United Kingdom, as a signatory to the United Nations Convention Relating to the Status of Refugees, is bound by its definition of a refugee. This definition includes "a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion... is unable or, owing to such fear, is unwilling to return to [his country of nationality]." The legal consensus, and indeed the accepted position in this case, is that homosexuality unequivocally constitutes membership of a particular social group.

At the time, the UK Border Agency, operating under the umbrella of the Home Office, was responsible for processing asylum claims in the United Kingdom. Both HJ and HT's applications were denied. Their subsequent appeals, individually, failed to overturn these decisions. The matter escalated to the Court of Appeal where their cases were heard together. The judgment, delivered on the 10th of March, 2009, by Lords Justice Pill and Keene, along with Sir Paul Kennedy, saw their appeals dismissed. The Court of Appeal concluded that the Asylum and Immigration Tribunal had been justified in its assertion that HJ could reasonably be expected to exercise discretion regarding his sexuality upon his return to Iran. Similarly, they found that HT would likely maintain discretion in Cameroon, and therefore had not established a genuine risk of persecution. The Court's reasoning was rooted in the 'discretion test': if a homosexual asylum-seeker could conceal their identity and sexuality, and it wasn't unreasonable to expect them to do so, a signatory state to the Refugee Convention was permitted to send them back to their country of origin. A rather cold, clinical approach, wouldn't you agree?

Judgment

The Supreme Court, a bench comprising Deputy President Lord Hope, Lords Rodger, Walker, and Collins, and Sir John Dyson, systematically dismantled the 'discretion test'. Lord Hope articulated the Court's stance with stark clarity: "to pretend that [a person's sexual orientation or sexuality] does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are." A rather obvious point, yet one that needed stating in the highest court.

Lord Rodger, in his contribution, expanded on this, arguing that a person's sexual identity shouldn't be confined to mere sexual acts. It encompasses every facet of their existence. He offered a rather colourful, if somewhat stereotypical, analogy:

"To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution."

It's a rather vivid image, isn't it? The cases were then remitted back to the Tribunal, with the Supreme Court's guidance now acting as the new benchmark for their reconsideration.

See also

External links

  • HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 7 July 2010
  • HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 172 10 March 2009
  • J v Secretary of State for the Home Department [2006] EWCA Civ 1238 26 July 2006
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Human rights in Cameroon Subjects

See also