Case No: C5/2008/0169
Neutral Citation Number: [2008] EWCA Civ 533
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/00377/2007]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 4th April 2008

Before:

LORD JUSTICE TOULSON
and
MR JUSTICE PATTEN
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Between:

	XY (IRAN)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr J Nicholson (instructed by Messrs Parker Rhodes) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Toulson:

1.	This is a renewed application for permission to appeal against a decision of Immigration Judge Davies who on a reconsideration dismissed the appellant’s appeal against the refusal of his asylum and human rights claims.  The appellant is a citizen of Iran and is homosexual.  He claimed that he had been in a long-term relationship with M, that this had come to the attention of the authorities, that M had been arrested, that a summons had been issued against himself and that he had fled from Iran in those circumstances.  
2.	The immigration judge accepted that the appellant had been in a relationship with M but otherwise disbelieved his story.  The immigration judge accepted that as a homosexual the appellant was a member of a particular social group, for the purposes of the Refugee Convention, but he found that he was not reasonably likely to be at risk of treatment amounting to persecution or a breach of his human rights if returned to Iran.  There has been a good deal of recent case law in this area, including J (Iran) v SSHD [2006] EWCA Civ 1238, where this court discussed the problems in a case which had close parallels with the present case.  
3.	In his decision, the immigration judge noted and said that he accepted the appellant’s submission that he must take into account developments in the case law relating to persons in the appellant’s situation, and at paragraph 49 he summarised the appellant’s submissions based on J.  In brief summary, it was submitted that the appellant could not reasonably be expected to abandon part of his sexual identity if he was returned to Iran, and that in the circumstances he had a well-founded fear of persecution.  The appellant’s evidence recorded by the immigration judge was that if he returned to Iran he could not be a heterosexual and that he could not hide his sexual identity. 
4.	The immigration judge made no further explicit reference to J but he dealt with the argument based on it as follows at paragraph 61:
“Mr Nicholson implies that the Appellant’s appeal should succeed because the Appellant would have to abandon his sexual identify upon returning to Iran.  I do not accept that this is the case.  The Appellant does not simply abandon his sexual identity if he is required to carry on his sexual activities with a same sex partner with some care or discretion.  All persons, of whatever sex, involved in intimate relationships conduct themselves with such care and discretion.  It is clear from the Appellant’s own evidence that he had conducted his own sexual relationship with [M] with some care and discretion as he was fully aware of the likely result of such activity coming to the attention of the Iranian authorities.  It is therefore not reasonably likely that he would be careless or indiscreet regarding his sexual activities, if they resumed upon his return to Iran.”

5.	If the sentence “The Appellant does not simply abandon his sexual identity if he is required to carry on his sexual activities with a same sex partner with some care or discretion” is taken to mean that he does not have a well-founded fear of persecution because he can reasonably be required to hide his homosexuality from persons other than partners in order to avoid persecution, and is therefore likely to do so, it is arguable that this was a wrong approach in law in the light of J; see paragraphs 8 to 10 and 16 of the judgment of Maurice Kay LJ, including the citations from the majority judgments in the High Court of Australia in S395/2002 2003 HCA 71, in particular from the joint judgment of McHugh and Kirby JJ: 
“In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many -- perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases the well-founded fear of persecution held by the applicant is the fear that, unless the person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly.”  

and from the joint judgment of Gummow and Hayne JJ:
“Saying that an applicant for protection lived ‘discreetly’ in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life.  To say that a decision maker ‘expects’ that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen.  But to say that an applicant for protection is: ‘expected’ to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do.”

6.	It is also arguable that the parallel which the immigration judge went on to draw between heterosexual and homosexual relationships is not convincing.  It is not just a matter about whether intimate acts are likely to be done in public or in private.  Heterosexuals do not have to conduct themselves every day in such a way that the fact of their relationship should not emerge for fear of persecution.  
7.	This is a difficult area, but in my judgment there is a realistic prospect of the appellant persuading the full court that there are issues raised by J which were not satisfactorily addressed in this particular case in the adjudication, and I would therefore give permission to appeal.
Mr Justice Patten:
8.	I agree. 

Order: Application granted