HJ(Iran) v. Secretary of StateFootnote 1
Under the 1951 Convention relating to the Status of RefugeesFootnote 2 a person is a refugee, and thus entitled to asylum in a country that, like the United Kingdom, is a party to the Convention, if
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [he] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country
That simple formula conceals a myriad of difficulties for national immigration authorities and courts. In its much-admired decision in HJ(Iran) the Supreme Court has given answers to some outstanding questions, while leaving others for further debate. The questions decided in HJ(Iran) are
• Whether and to what extent homosexuals form a “particular social group” for the purposes of the Convention.
• When a person is a member of a particular social group that is subject to state persecution in his home country, to what extent, if at all, can he be refused asylum in the United Kingdom because he declines, or is unable, to modify his behaviour in the home country in order to escape that persecution: in HJ(Iran), an applicant who had previously escaped the state's persecution of homosexuals in Iran by modifying his behaviour so as not to bring his homosexuality to the attention of the authorities.
This article explores the extent and implications of those rulings. It then addresses a special aspect of asylum law, touched on but not properly considered in HJ(Iran), the ability to withhold protection when the applicant could avoid persecution by internal flight (otherwise less graphically known as internal relocation) to a part of his home country other than that where he originally lived. It will be submitted that the possibility of avoiding persecution by changing one's location raises issues no different from the possibility of avoiding persecution by changing one's behaviour, and that the spirit of HJ(Iran) should now illuminate also the case of internal flight.
To whom does HJ(Iran) apply?
The short answer is, to anyone who falls within the categories set out, or referred to by necessary implication, in article 1A(2) of the Refugee Convention. In the specific case of homosexuals Lord Hope of Craighead DPSC points out that while homosexuality would not have been in the mind of the framers of the Refugee Convention, homosexuals qualify as members of a social group that is in pari materia with the other categories that are specifically protected by article 1A(2).Footnote 3 And on the other side of that coin, members of other social groups must enjoy the level of protection that is afforded to homosexuals by HJ(Iran).Footnote 4
The jurisprudence of HJ(Iran)
In a speech approved by all the other members of the Court, Lord Rodger of Earlsferry JSC said if the applicant on return to the home country would live in such a way as not to come to the attention of the persecuting authorities, then the court must ask why he would behave in that manner. If the answer was family pressure or simple social preference, then no case for asylum was made out. But
If … the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect- the right to live freely and openly without fear of persecution.Footnote 5
It follows from this that no change of behaviour, however modest, in order to avoid persecution can be demanded of the asylum-seeker, because the very act of making a modification demonstrates the well-founded fear of persecution from which the Refugee Convention protects him. Once a person falls within one of the categories protected by the Refugee Convention, he is entitled to manifest in the home country all of the behaviour that is seen as characteristic of that category. If he cannot do that in the home country, he is entitled to asylum. To put the matter in another way, the asylum-seeker must have freedom to behave in his home country in every respect like other residents who do not fall into the protected category: see for instance the example given by Lord Rodger of Earlsferry JSC, who said that gay men must be free to go to Kylie concerts and drink exotically coloured cocktails, to the same extent as straight men are free to play rugby and drink beer.Footnote 6
That analysis is further supported by, in particular, Dyson JSC's criticism in paragraph 122 of HJ(Iran) of the approach of the Asylum and Immigration Tribunal in that case. The AIT had pointed out that
for 16 years HJ had been able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity (Dyson JSC's emphasis).
Dyson JSC's rejection of those facts as relevant to the issue before the Supreme Court entails that if the avoidance of persecution would lead to any detriment to the applicant's private life, or the suppression of any aspect of his sexual identity, that will require the grant of asylum.
This point may at first sight appear to be blurred by Dyson JSC's quotation, at paragraph 114 of HJ(Iran), of the formulation in the New Zealand case of Refugee Appeal No 74665/03 Footnote 7 of a test in terms of whether on return the subject would have to surrender a core or only a peripheral part of his protected interest. However, the rest of that judgment demonstrates that for New Zealand asylum law the “protected interest” is access to fundamental human rights, rather than, as in English law, surrogate protection from persecution. The distinction is explained by Lord Hope of Craighead DPSC at paragraphs 15–16 of HJ(Iran). As Lord Hope of Craighead DPSC makes clear, a member of a protected group is entitled to retain the whole of that surrogate protection, irrespective of whether or not steps to avoid persecution would impact on his fundamental human rights.Footnote 8
How the Court of Appeal went wrong in J v. Secretary of State
That this is the effect of HJ(Iran) can be further demonstrated by the Supreme Court' s reasons for (in the restrained comment of the writer of the headnote in the Weekly Law Reports) disapproving the decision of the Court of Appeal in J v. Secretary of State.Footnote 9 That decision was based on two considerations, both of which were drawn from the earlier Court of Appeal decision in Z v. Secretary of State.Footnote 10 First,
a person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution. If the IAT in our case refused Mr Z asylum on the basis that he was required to avoid persecution they did not respect the jurisprudence of Ahmed. Footnote 11
Second, to explain the qualification in the last citation, the Court of Appeal in Z held that
where avoiding action is forced on the subject, that case only falls under the Refugee Convention if it results in a condition that can properly be called persecutory, in that it imposes on the subject a state of mind or conscience that fits with the definition of persecution given by McHugh and Kirby JJ. in para 40 of their judgment [in Appellant S395/2002 v. Minister for Immigration 216 C.L.R. 473], and in line with English authority already quoted: “Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it”.Footnote 12
The test for Refugee Convention “persecution” formulated in Appellant S395/2002, that by reason of its intensity or duration the person persecuted cannot reasonably be expected to tolerate the harm, is no different in effect from the analysis of the same concept in, for instance, the speeches in the House of Lords in Sepet v. Secretary of State; Footnote 13 as Lord Hope of Craighead DPSC pointed out in HJ(Iran).Footnote 14 The Court of Appeal in J applied that test at two stages of its analysis. First, to ask whether the applicant fell into a category of person who would in principle be treated in his home country in a manner that amounted to persecution. Second, where steps were open to the applicant to avoid that persecution, to ask whether, having taken those steps, the applicant would still be in a condition that amounted to Convention persecution. Thus, in the case of a gay man obliged to live discreetly in order to escape the attention of the authorities and the likely violence or punishment that would follow, whether to be obliged to live discreetly would be create a state of mind or conscience so burdensome as still to place the applicant in a situation of persecution, in the sense identified in Appellant S395/2002 and in English authorities such as Sepet of the burden being such that the applicant cannot reasonably be expected to tolerate it.
It is the second of these enquiries that is rejected out of hand in HJ(Iran). That is apparent throughout the judgments, but two extracts will suffice. First, Lord Hope of Craighead DPSC:
The test of whether the situation he may find himself in on return was one that he could reasonably be expected to tolerate was introduced to address the high threshold that has to be crossed between what does and what does not amount to persecution. But the way the test was expressed in para 16 of J's case suggests that the applicant will be refused asylum if it would be reasonable to expect him to be discreet even if he is unwilling or unable to do this. That is a fundamental error.Footnote 15
But the test was the same, expressed in the same language and drawn from the same source, in both of the enquiries referred to by Lord Hope of Craighead DPSC. The Court of Appeal thought that, on return, the question should remain of whether the applicant, in modifying his behaviour, has crossed the high threshold into a situation that he could not reasonably be expected to tolerate.Footnote 16 Lord Hope of Craighead DPSC rejects that approach. Second, Lord Collins of Mapesbury JSC, referring to the expected to tolerate formula in Appellant S395/202, said
The idea of reasonable toleration was plainly being mentioned in the context of what amounts to persecution and not in the context of what they described as “taking avoiding action” or where members of the group “hide their membership or modify some attribute or characteristic of the group” to avoid persecutionFootnote 17
Quite so. The High Court of Australia did not address the issue of whether the taking of avoiding action could be required if the action did not result in a condition of persecution. The Court of Appeal did address that issue, in terms of the accepted definition of persecution,Footnote 18 but in the view of the Supreme Court were wrong to do so. HJ(Iran) decides that once an applicant is threatened with persecution, no avoiding action can be expected or required of him.Footnote 19
The implications of this ruling are considerable. A person threatened with persecution in his country cannot be returned there even if his total situation on return, having taken into account the trauma of having to modify his behaviour, would not be one of persecution. Thus, in the case in point of homosexuals from a home country where homosexuality is the subject of state punishment, the question cannot be asked of whether the applicant could avoid the attention of the authorities, and therefore avoid that punishment, by refraining from any part of the conduct that he would otherwise wish to indulge in: for instance, displays of affection in public. Where a member of a particular ethnic group would be persecuted if his ethnicity became known, for instance a person of partly Roma descent facing return to Kosovo as in Hysi v. Secretary of State,Footnote 20 the question cannot be asked whether he could, albeit against his will, take steps to conceal his ethnicity. Where a person faces return to a country where members of his religion are persecuted, the question cannot be asked whether he could avoid that persecution by observing his religion in private. Those are all cases where the applicant is a member of a discrete group, defined by sexual orientation, ethnicity or religion. Where the persecution is on grounds of political belief, in the form of opposition to the ruling party, supporters of opposition parties will fall into the same category. But the effect of HJ(Iran) goes even further than that, because even those who are neutral in their attitude to a ruling party will be entitled to asylum in order to avoid having to lie to conceal that neutrality.Footnote 21
If such questions were to be asked, the answer might in many cases indeed be that the avoiding steps would be so damaging to the applicant's personality as to place him in a state of persecution in Convention terms, albeit persecution of a different sort and effect from direct punishment by the authorities. In other cases, however, the avoiding action might not have that extreme effect on the applicant's personality. But all that is now a matter of history. After HJ(Iran) the need for any avoiding action on return to the home country necessarily leads to a grant of asylum, irrespective of the extent of that action and of its effect upon the personality and humanity of the applicant.
Internal flight: the basic rulesFootnote 22
The principle that a person otherwise eligible can be refused asylum if “internal flight” is available to him is drawn, both in international and in domestic law, from article 1A(2) of the Refugee Convention, set out above. From that, the House of Lords, per Lord Bingham of Cornhill, formulated the law in Januzi v. Secretary of State Footnote 23 in these terms:
if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
The condition that the applicant must be “reasonably” expected to relocate to the new area is transposed into British law by asking whether it would be “unduly harsh” to require the applicant to relocate. That, in its terms and in its application, sets a severe standard.Footnote 24 For instance, in the leading case of AH(Sudan) v. Secretary of State Footnote 25 the House of Lords found that it had been properly open to the Asylum and Immigration Tribunal to hold that it was not unduly harsh to require farmers persecuted in rural Darfur to relocate to makeshift urban squatter camps with what were described as appalling living and sanitary conditions, many hundreds of miles away on the outskirts of Khartoum.Footnote 26
HJ(Iran) and internal flight
The contrast between internal flight, as understood in the English courts, and the jurisprudence established in HJ(Iran) will be readily apparent. Where, as in AH(Sudan), the applicant is threatened in his home area with persecution, he cannot be required, within that area, to do anything at all, even something that it would be reasonable to expect him to do, to avoid that persecution. But if there is some other place within his home country where he would not be persecuted he can be required to uproot himself and his family and enter upon an entirely different and greatly impoverished mode of life.
In argument in HJ(Iran) counsel for the Secretary of State indeed suggested that the issue of whether the applicant could be expected to modify his behaviour could be assessed by analogy with the test of undue harshness in internal flight. The only member of the court to address the argument, Lord Hope of Craighead DPSC, rejected it in fairly short order:
the suggested analogy with internal relocation can be dismissed at once as incompatible with the principles of the Convention. The objection to it is that it assumes that the applicant will be prepared to lie about and conceal his sexual orientation when he moves to the place of relocation.Footnote 27
That, with respect, would have been entirely correct if the argument had been that in that particular case there could be relocation within Iran. As Lord Hope of Craighead DPSC pointed out, there was nowhere in Iran where homosexuals were not threatened with persecution, so a homosexual on relocation would be faced with the same dilemma as at home. But that was not the argument. Rather, the more general submission was that the contrast between the two areas of law should have led the Court to question whether the principles of the Convention, of which the jurisprudence of internal flight is one, really led in another area of asylum law to protection as extensive as the Supreme Court eventually decreed for cases that involved change of behaviour as opposed to change of location.
The future
The wide ambit given by the Supreme Court to asylum claims based on the claimant's refusal or inability to modify his behaviour is now set in stone, for all categories of asylum-seekers. And litigation at tribunal level is likely to be significantly affected, since it will no longer be necessary, or indeed permissible, to investigate the practical effect of an involuntary change of behaviour in the home country. By contrast, although the theory of the internal flight doctrine is not open to question, its application in the United Kingdom courts, through the concept of undue harshness, remains a matter of judgement case by case. With the very strong statements in HJ(Iran) in mind, it really seems impossible to continue to act as if the two concepts, the reasonableness of requiring change of behaviour; and the harshness of requiring internal flight; live in two separate areas of jurisprudence. Rather, both are aspects of the single, difficult, question of the extent to which asylum can be refused at the price of disruption of the applicants' lives in their home country. In addressing that question in the area of internal flight, British courts should revisit the assumptions that they have previously brought to it, and adopt some of the generosity espoused by the Supreme Court in HJ(Iran).
