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In an important judgment, the Supreme Court has determined that gay, lesbian or bisexual asylum-seekers cannot be returned to countries where they would face persecution. The decision overturns an earlier decision by the Court of Appeal that the Government could return two gay asylum-seekers, identified as HJ and HT, to Iran and Cameroon, where homosexuality is illegal, on the basis that they could be expected to act "discreetly" so as to avoid persecution. In Iran, homosexuality regularly leads to death penalty, whilst in Cameroon, it is punishable by up to five years in prison. HT had been severely beaten and cut with a knife by neighbours and police and was hospitalised for 2 months before escaping to the UK. The London office of the United Nations High Commissioner for Refugees (UNHCR) intervened in the appeal to the Supreme Court on behalf of the appellants. A team from Baker & McKenzie acted for UNHCR on a pro bono basis. Baker & McKenzie Associate Iona Harding, who ran the case, said: "This is an excellent result which will ensure that lesbian, gay and bisexual people receive the protection they are entitled to as refugees in the UK and are not expected to hide their identity in order to escape execution, long prison sentences or other forms of persecution." In its judgment the Supreme Court held that the issue is not whether a gay, lesbian or bisexual asylum-seeker should be expected to tolerate "being discreet" in order to avoid persecution in their country of origin. Rather, the term "concealment" should be preferred recognising that a degree of dishonesty is likely to be involved, and that no normal person, regardless of their sexual orientation, would find it tolerable to have to conceal their sexuality out of fear of persecution. The Supreme Court determined that decision-makers must ask whether the persecution of gay, lesbian or bisexual people in their country of origin would be a material reason for the individual's decision to conceal their orientation. If so, then they are entitled to refugee status, regardless of whether or not concealment would be successful. Further, the appellants drew an analogy between their position as gay asylum-seekers and the position of Anne Frank had she been able to seek asylum in the UK. The Government argued that Anne Frank would not have been entitled to refugee status if she could have "reasonably tolerated" living in an attic. The Supreme Court characterised this response as "absurd and unreal." The case was heard in the week immediately following the General Election, and the Secretary of State's position was therefore prepared for Jacqui Smith on behalf of the previous Labour Government. The Coalition Government has since announced that it will end returns of asylum-seekers to countries where they would face death, torture or imprisonment as a result of their sexual orientation. This judgment is significant in putting that commitment on a legal footing. The same commitment has also been extended by the Coalition to asylum-seekers who face persecution on the grounds of gender identity, which has not yet been considered by the Supreme Court, but is likely to be governed by the same principles. The Baker & McKenzie team comprised lawyers from the Dispute Resolution, IP and EU, Competition & Trade departments including Partner Tom Cassels, Associates Iona Harding and Richard Davies, Professional Support Lawyer Liz Williams and Trainee Sarah West. Counsel for UNHCR were Mike Fordham QC and Naina Patel of Blackstone Chambers. UNHCR supervises the operation of the 1951 Refugee Convention. Baker & McKenzie has previously acted for UNHCR in a number of other Courts, including the Court of Appeal, the House of Lords and the European Court of Human Rights. HJ was represented by Raza Husain QC (Matrix Chambers), Laura Dubinsky (Doughty Street Chambers) and Paragon Law. HT was represented by Monica Carss-Frisk (Blackstone Chambers), Peter Jorro (Garden Court Chambers) and Wilson & Co. The Equality & Human Rights Commission was represented by Karon Monaghan QC, Jessica Simor and Helen Law (all Matrix Chambers).
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