From Sodomy to Safety?

The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

From sodomy to safety?: the case for defining persecution to include unenforced criminalisation of same-sex conduct. 1 S. Chelvan, Barrister No5 Chambers, UK * 2 Abstract: Asylum duty-bearers have concentrated for too long on the privacy of the bedroom as providing a safe haven from where Lesbian, Gay and Bisexual asylum seekers can conduct their sex lives, without fear of harm, even where such conduct is criminalised. This working paper seeks to address this misconception head on, drawing the decision-maker outside the bedroom, out of the front door and into the outside world, where expression of identity, or identification of agency, is governed by the threat of harm flowing directly out of a fear of arrest, detention, torture and in some cases, execution. Criminalisation is the great enforcer, whether actual criminalisation of same-sex conduct is actually enforced. This common narrative in the life of LGB human beings exists even in nations of the Global North. In countries where there exists no effective state protection, then the ability to be open and live freely is directly affected, and this results in the fear of persecution. This paper drives force in this notion from cases in Italy, Austria and the United Kingdom, drawing on the 2004 Refugee Qualification Directive as a primary source of European Law, to enable harmonisation of this issue on a European level.

B A C K G R O U N D:
[C]riminalisation reinforces a general climate of homophobia (presumably accompanied by transphobia), which enables State agents as well as non-State agents to persecute or harm LGB(TI)s with impunity. In short, criminalisation makes LGBs into outlaws, at risk of persecution or serious harm at any time. Fleeing Homophobia Report 2011 3

This is a working paper and should not be cited without prior permission of the author. The author identifies his copyright. 2 Barrister of the Inner Temple (Call, 1999): Major Scholar, LLM (Harv): Kennedy Memorial Trust Scholar, BSc (SocSci) (First Class) Politics and Law (Soton), PhD Candidate in Law (Part-Time), Kings College London (commenced 2008, upgraded 2010, thesis due 2014): Professor Robert Wintemute (KCL) (First Supervisor) Professor Jenni Millbank (University of Technology Sydney Second Supervisor). The author has been a Trustee of the UK Lesbian and Gay Immigration Group since 2005, and since 2010 has held the position of Vice-Chair. 3 Jansen and Spijkerboer Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (September 2011), 2.1, p. 26.

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76 countries are marked red in the ILGA 2011 Map 4, highlighting the countries of the world where there exists laws which criminalise same-sex conduct. These countries are defined by ILGA as countries where persecution exists. Nevertheless, since F v UK 5 in 2004, European countries have in general not accepted that countries where there exists unenforced criminal laws result in successful refugee claims from Lesbian, Gay and Bisexual (LGB) asylum applicants, until now. Force in the papers central theme has been explored in 2005 by Jenni Millbank 6 within the context of the UKs approach up to 2003. Millbank (2005) states: 7 Criminalizing of sex is a very obvious and clearly state-sanctioned form of harm against gay and lesbian people. Yet decision-makers in Britain have demonstrated a marked reluctance to view criminalization of gay sex per se as persecutory. Since the UK Supreme Courts July 2010 judgment in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 A.C. 596, LGB individuals have been given a right to live openly and freely without the threat of harm [ 55], on the same basis as their straight counterparts [ 78]. Domestically, this also includes the Courts acceptance that governments need to mobilise to tackle such harm [ 3]. Internationally, the UN Human Rights Committee in March 2011 8, has declared such criminal laws to end [ 10]. The paper explores the development of the recent jurisprudence on this point in the example of the United Kingdom, Austria and Italy, referring specifically to the 2004 Qualification Directives 9 definition of persecution including a discriminatory legal measure (Article 9 (2) (b)). The paper will also refer to the case country example of Uganda, where the author visited in July 2011 10, in order to show how criminalisation of same-sex conduct, even without implementation results in persecution, be it through state or third party actors. This will also provide force to the papers inclusion within the sexual orientation: act or identity discourse, as it is a fixation with the act which results in the persecution of the identity. The paper will propose that the conference adopts an approach which accepts that criminalisation does amount to persecution, as it results in persecution.
2011 ILGA State-Sponsored Homophobia Report (see specifically Lesbian and Gay Rights in the World (map) <http://old.ilga.org/Statehomophobia/ILGA_map_2011_A4.pdf> (last accessed 3rd September 2011). 5 Application 17341/03 (22nd June 2004) 6 Millbank, Jenni A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual Orientation 1989-2003, Social and Legal Studies Vol. 14, pp. 115-138, 2005. 7 Ibid at 125. 8 Ending Acts of Violence and Related Human Rights Violations Based On Sexual Orientation and Gender Identity. (22 March 2011) UN Human Rights Council. 9 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal L 304 , 30/09/2004 P. 0012 0023). 10 International Association on the Study of Forced Migration (IASFM 13), Kampala, Uganda, 3rd to 6th July 2011.
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The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

T H E S O D O M Y F I X A T I O N: When did you first engage in buggery with your boyfriend? Question posed by UK Immigration Judge, First-Tier Tribunal (Immigration and Asylum Chamber) to gay man from Uzbekistan, Summer 2010 11 The real mischief, as we are well aware, that is likely to be caused by allowing his appeal is by encouraging a flood of fraudulent Zimbabwean (and no doubt other) asylum-seekers posing as sodomites (to correct the spelling of the Marquess of Queensberry's famous phrase). John Freeman, Chair, UK Immigration Appeal Tribunal, 2001 12 The United Kingdom is clearly responsible for the exportation of criminalisation of initially male same-sex conduct throughout her British Empire. The Vice of Buggery in 1533 resulted in an Act of Parliament which codified what was earlier Church law, making anal intercourse between men a criminal, capital offence in England 13. This was a necessary moral vein to which Englands Henry VIII could show that despite his lack of sexual mores, he could show that there were still black lines relating to sex which could not be crossed. The unequal legal status of gay men, would be extended in 1885 where the Criminal Law (Amendment) Act came into force, and enlarged the range of offences to include gross indecency which encompassed any sexual act between men which did not include buggery 14. This was the legislation which enabled Oscar Wildes conviction for gross indecency, with two years hard labour 15 following his infamous trails in 1895, where he referred to the love that dare not speak its name. An unequal age of consent, as compared to straight men and women, continued until 2003 with the Sexual Offences Act, which equalised the age of consent to 16 (bar exceptions for straight and same-sex conduct where one of the parties holds a position of responsibility to the other, ie teacher). Legal and social landmarks between these dates include the Wolfenden Report on Homosexuality and Prostitution in 1957 16, which recommended for the first time that there should be an age of consent of 21; the 1967 Sexual Offences Act 17, which actually implemented that recommendation, the Criminal Justice and Public Order Act of 1994, which
Decision reversed by UK Tribunal (Immigration and Asylum Chamber) (12th July 2011) (unreported). Finding of Immigration Judge on sexual identity held to be perverse. Asylum appeal allowed. 12 Appellant Z v Secretary of State for the Home Department (01TH02634) (8th of November 2011) (reversed by the England and Wales Court of Appeal in Z v Secretary of State for the Home Department [2004] EWCA Civ 1578; [2005] Imm A R 75. 13 Statutes made in Westminster, Anno 25 HEN VIII and Anno Dom. 1533 C A P.VI The Punishment of the Vice of Buggery. 14 Referred to as the Labouchre amendment named after its proposer. 15 Section 11. Criminal Law Amendment Act 1885, 48 & 49 VICT, Ch 69. 16 Report of the Committee on Homosexual Offences and Prostituion Cmnd. 247 (1957). 17 Section 1(1) Sexual Offences Act 1967.
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lowered the age to 18 18, and then the Sexual Offences (Amendment) Act 2000 19, which lowered the age of consent to 16, from the 1st of January 2001 20. However, such legislative changes were fuelled by landmark cases. In the 1950s it was the 1953 arrest for soliciting of the internationally acclaimed actor Sir John Gielgud and the 1954 trial of Peter Wildeblood, the present Lord Montagu, and his cousin Michael Pitt-Rivers, for having sexual relations with commoners, which resulted in a public outcry for such crimes. This led to the commissioning of the Wolfenden Report in 1954. In the 1990s, it was the bravery of 3 18 year-olds in 1993 21, which led to the challenge by the newly established STONEWALL lobby group in the European Court of Human Rights 22, leading to the Parliamentary Debates in 1994, which lowered the age of consent for homosexual (and coincidentally heterosexual) anal intercourse. It was then the action of Euan Sutherland, firstly in the Commission to the European Court of Human Rights in 1996 23, with a successful ruling on indefensible violation of his article 8 rights, which forced the UK Government, into conceding that the margin of appreciation afforded to the State in relation to the protection of public morals, could not legitimately outweigh the right of the gay national to be afforded to be able to engage in consensual (adult) sex, with another human being. This centred on conduct in the privacy of the home 24, without state interference. Former Justice of the Australian High Court, Michael Kirby (2011) refers to the exportation of British sodomy laws as something which needs to be targeted head-on: 25 The anti-sodomy offences and same-sex criminal prohibitions of the British Empire constitute one target of communication that needs to be enhanced, expedited and accelerated. Even within the domestic arena, the Foreign and Commonwealth Office in their November 2008 document entitled An FCO programme for promoting the human rights of Lesbian, Gay, Bisexual and Transgender people asserted (pages 1 and 2): 26 We understand the illegality of consenting same-sex relations to be incompatible with international human rights law. Such illegality also has a severely adverse impact on other human rights, such as privacy, association, assembly and expression. ...
Section 145 Criminal Justice and Public Order Act 1994. The Act also made provision of the repeal of criminalisation of heterosexual buggery, which technically up to that time was also a criminal offence. 19 Section 1 of the Sexual Offences (Amendment) Act 2000, in force from 8 January 2001. 20 Northern Ireland came into line, lowering the age of consent from 17 to 16, with the Sexual Offence (Northern Ireland) Order in June 2008. 21 Ralphe Wilde, Will Parry and Hugo Greenhaulgh. 22 Wilde v the UK (1995) 19 EHRR CD 86 (1st January 1995). 23 Sutherland v the UK (1996) 22 EHRR CD 182; (1997) 24 EHRR DC22 (1st July 1997), 24 See ADT v the United Kingdom (2001) 31 EHRR 33 (31st July 2000) For positive ruling to be able to engage in sexual conduct where more than two people are present pursuant to article 8 of the ECHR (private life).. 25 See Kirby M The Sodomy Offence: Englands Least Lovely Criminal Law Export? [2011] JCCL, 22 at 43. 26 (November 2008) Human Rights Democracy and Governance Group.
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The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

Action: The FCO should prioritise work in those countries where there is a complete illegality, or there are moves to introduce decriminalisation, and seek ways to raise the issue and lobby for decriminalisation.

Certain success was heralded on the 2nd of July 2009, when the Delhi High Court handed down the judgment in the Naz Foundation 27, case which struck down section 377 of the Indian Penal Code which criminalised same-sex conduct. This signals what former Chief Justice Shah (2010) reflects as a celebration of the inclusiveness and equality LGBTIs should enjoy 28. As Wintemute (2011) states, if the Indian Supreme Court affirms the High 29 Courts decision: [I]t would have a highly persuasive influence on 42 other Commonwealth countries with similar countries, including Pakistan, Bangladesh, Sri Lanka, the Maldives, Malaysia, Brunei and Singapore. Indeed, it would be a watershed judgment for the world, because it would immediately and definitively reduce, by nearly 50%, the number of lesbian and gay persons living in countries with criminal laws. These recent developments derive their energy from earlier decisions, including those of the European Court of Human Rights. In Dudgeon v the United Kingdom (1981) 4. E.H.R.R, the Strasbourg Court noted that there was no real evidence of active prosecution of private, consensual same-sex conduct. Nevertheless, the Court held the existence of the laws in Northern Ireland, which did not provide for any age of consent for gay men 30, constituted a continuing threat [41]: The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislation constitutes a continuing interference with the applicants right to respect for his private life (which includes his sexual life) within the meaning of Article 8(1). In the personal circumstances of the applicant, the very existence of the legislation continuously and directly affects his private life : either he respects the law and refrains from engaging (even in
Naz Foundation v Government of NCT of Dehli and ors (WP(C) No 7455/2001) (Judgment 2nd July 2009). Decision currently on appeal to the Supreme Court of India hearing scheduled for 2 days from 19th April 2011. See also Supreme Court of Nepal judgment (Writ No 917 of the year 2064 BS (2007 AD) (Judgment 21st December 2007)) The Blue Diamond Society case. 28 Justice Shah Decriminalisation of anti-sodomy laws in India constitutional validity, public health and individual rights (Commonwealth HIV and Human Rights Lecture, London, 30th November 2010). 29 Wintemute R, Same-Sex Love and Indian Penal Code 377: An Important Human Rights Issue For India 4 NUJS L. Rev. 31 at 39 (2011). 30 Northern Ireland was not subject to the age of consent of 21 pursuant to the Sexual Offences Act of 1967. Scotland only adopted the provision in 1980.
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private with consenting male partners) in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution. [emphasis added]

The essential recognition of the climate of fear which exists goes straight to the heart of the European jurisprudence on article 8 of the ECHR and right to a private life. Where the state has a certain margin of appreciation in order to balance the right, to balance the relationship between the state and the individual, there was found to be no justification on public grounds. Strasbourg consistently applied this reasoning in Norris 31 (gay man from Eire) and Modinos 32 (gay man from Cyprus). This reasoning fed into refugee law, specifically back into UK domestic case law in the 1999 landmark House of Lords decision in Shah and Islam 33 which placed on a formal footing the rights of homosexuals to be included into the Refugee Convention reason of Particular Social Group 34. Where in Shah their Lordships were analysing the asylum claims of women from Pakistan, when the England & Wales Court of Appeal, following Shah, considered the risk to a gay man from India in Jain 35 the effect of criminalisation was considered. In constructing a continuum, Lord Justice Schiemann, constructed a scale, on which an asylum seeker would have to place himself within in order for status determination to be assessed: 36 [T]he position has now been reached that criminalisation of homosexual activity by consenting adults in private is not regarded by the international community at large is not acceptable. At the free end an individual would be able to live freely as a gay person, as if they were free to breathe. At the other end of the continuum, there will be the real risk of arrest, detention and torture, where the individual would definitely receive refugee status. What resulted from this leading case was the need to have enforced criminal legislation, leading to a real risk of persecution.

Norris v Ireland (1988) 13 E.H.R.R. 186. Modinos v Cyprus (1993) 16 E.H.R.R. 485. 33 Islam v SSHD and R v IAT ex parte Shah [1999] 2 A.C. 629; 2 W.L.R 1015 (as per Lord Steyn). 34 The first reported case on this point located by the author via electronic immigration network is Minica Belemet v Secretary of State for the Home Department (13958) which cites Vracia (I1559) and Savchenkov as authority of inclusion into PSG Convention reason (Immigration Appeal Tribunal) (Mr J A OBrien Quinn) (TH 4257-92) (2nd October 1996) (laws in Romania are not enforced, so not risk to gay man from Romania). See also Millbank (2005)Op Cit. fn. 6. 35 Jain v SSHD [2000] Imm. A.R. 76 (Judgment 6th October 1999). 36 Ibid. at 82-83.
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The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

T H E H J (IRAN) & HT (CAMEROON) E F F E C T: The UK Supreme Courts landmark judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 37, (hereafter referred to as HJ/HT), provides guidelines in the determination of LGB asylum claims. 38 Lord Rodgers famous guidelines at 82 of the judgment 39, are proceeded by an important acceptance that gay, lesbian and bisexual asylum seekers are placed on an equal footing with their fellow straight counterparts, with respect to the enjoyment of rights and freedoms. Lord Rodger highlighted the basic underlying rationale of the 1951 Refugee Convention in the following terms [ 53 and 78]: At the risk of repetition, the importance of this analysis for present purposes is that it proceeds on the basis that, so far from permitting or encouraging its agents to persecute the applicant for one of the protected grounds, the home state should have protected him from any persecution on that ground. The underlying rationale of the Convention is therefore that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. In the absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution. By allowing them to live openly and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them. In short, what is protected is the applicant's right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. 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. [emphasis added] [additional emphasis added]
37

The author was instructed as Counsel for HT (Cameroon) during proceedings before the Court of Appeal (application sole Counsel on permission, and Junior Counsel at substantive hearing) and was instructed as part of the legal team following judgment before the Supreme Court (instructing solicitor: Russell Blakely, Wilson Solicitors LLP). 38 See for analysis of judgment, Chelvan, S Put Your Hands Up (If You Feel Love) (2011) Vol 25 No. 1 IANL, 56-66. 39 Not discussed in detail in this paper.

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HJ/HT highlight the concentration on the word fear. Criminalisation imposes fear on an individual. The UNHCR Guidance Note (2008) 40 states at 17 and 18: [17] Criminal laws prohibiting same-sex consensual relations between adults have been found to be both discriminatory and to constitute a violation of the right to privacy. The very existence of such laws, irrespective of whether they are enforced and the severity of the penalties they impose, may have farreaching effects on LGBT persons enjoyment of fundamental human rights. Even where homosexual practices are not criminalized by specific provisions, others directed at homosexual sex such as those proscribing carnal acts against the order of nature and other crimes, such as undermining public morality or immoral gratification of sexual desires, may be relevant for the assessment of the claim. [18] A law can be considered as persecutory per se, for instance, where it reflects social or cultural norms which are not in conformity with international human rights standards. The applicant, however, still has to show that he or she has a well-founded fear of being persecuted as a result of that law. Penal prosecution, under a law which per se is not inherently persecutory or discriminatory, may in itself amount to persecution, for instance, if applied to particular groups only, if arbitrary or unlawfully executed. [emphasis added] In highlighting the right of an LGB person to live freely and openly, the UK Supreme Court recognises, by inference, that any constraint to the ability to live in such a manner, due to a fear of persecution, must drive force into status determination. Consequently, since the 2010 decision, by the highest court in an EU Member State, can this have far-reaching consequences for interpreting mere criminalisation to amount to persecution? P E R S E C U T I O N A R I S I N G F R O M C R I M I N A L I S A T I O N: Professor James Hathaway in The Law of Refugee Status (1991) defined persecution as (at page 112) (the definition of persecution) 41: ... [T]he sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of
UNHCR Guidance Note on Claims for Refugee Status Under the 1951 Convention Relating to Sexual Orientation and Gender Identity (November 2008) (to be referred to as the UNHCR Guidance Note. This Note is currently undergoing a redrafting process. The author attended a meeting at UNHCR Headquarters in Geneva on the 29th of June 2011 to participate in a NGO-Roundtable discussion on points to address as part of this process. 41 The first sentence of this definition has been endorsed by the House of Lords in Hovarth v. Secretary of State for the Home Department [2001] 1 A.C. 489, 495, per Lord Hope of Craighead; Sepet v. Secretary of State for the Home Department [2003] 1 W.L.R. 856, 862, para 7, per Lord Bingham of Conrnhill; and R (otao Ullah) v. Special Adjudicator [2004] 2 A.C. 323, 355, para 32, per Lord Steyn.
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The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

any right within the first category, a discriminatory or non-emergency abrogation of a right within the second, or a failure to implement a right within the third category which is either discriminatory or not grounded in an absolute lack of resources. [emphasis added] The definition of persecution includes an indefensible violation of second category rights. Professor Hathaway, in defining what constitutes second category rights states (at pages 109110): Second are those rights enunciated in the UDHR and concretized in binding and enforceable form in the ICCPR, but form which states may derogate during a public emergency which threatens the life of the nation and the existence of which is officially proclaimed. These include ... the right to equal protection for all, including ... minorities; the protection of personal and family privacy and integrity; ... liberty of opinion, expression ... The failure to ensure any of these rights will generally constitute a violation of the states basic duty of protection, unless it is demonstrated that the governments derogation was strictly required by the existence of a real emergency situation, was not inconsistent with other aspects of international law, and was not applied in a discriminatory way. Where, for example, the failure to respect a basic right in this category goes beyond that which is strictly required to respond to the emergency (in terms of scope or duration), or where the derogation impacts disproportionately on certain subgroups of the population, a finding of persecution is warranted.

The Hathaway definition of violation of second category rights amounting to persecution has not been rejected by the UK Tribunal or by the higher courts. In Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600; [2006] Imm A.R. 217, at 233, para 31, Lord Justice Laws urged caution in relying on the definition on Hathaways definition of persecution. However, his Lordship did note that the sense to be accorded to persecution might shift and stretch as the international consensus develops.

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The 2004 Qualification Directive 42, provides a definition for persecution in Article 9: Act of persecution Article 9 Acts of persecution

(1) Acts of persecution within the meaning of article 1A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). An act of persecution as qualified in paragraph 1, can, inter alia, take the form of: acts of physical or mental violence, including an act of sexual violence; legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12 (2); acts of a gender-specific or child-specific nature. In accordance with Article 2 (c), there must be a connection between the reason mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.
[emphasis added] [additional emphasis]

(b)

(2)

(a) (b)

(c) (d)

(e)

(f) (3)

42

Op cit fn.9.

The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

For the purposes of this paper, the concentration is on the word or and the words proceedings or in Article 9 (2) (b), as this does not require implementation. This argument failed before the England & Wales Court of Appeal in November 2009, in the appeals of OO ( Sudan) and JM (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 1432; . Sudan has legislation which refers to the death penalty to serial offenders (following 3 convictions) 43 and Uganda at the time had legislation which would lead to imprisonment for up to seven years. 44 However, the lower Courts had held that there was no evidence that these laws were enforced in either country. 45 The provisions of Article 9 of the 2004 Qualification Directive are transposed into the 2006 Regulations 46, the only difference being that in Article 9 (2) the reference is to inter alia and in the regulations, the reference is may take the form of . It is important to highlight that this is a pre-HJ/HT case. At 18 to 25, Sir David Keene, speaking for the Court, held:
18. What, then, is the impact of the Qualification Directive and Regulations? On behalf of the appellants, it is submitted that they have changed the situation since Amare was decided. This is Mr Chelvan's third reason for not following that decision, and here reliance is placed in part on the reference in regulation 5(2) and Article 9(2) to acts of persecution possibly taking the form of, amongst other things, discriminatory legal measures. That, however, cannot get the appellants very far. It is quite clear that regulation 5(2) of the Qualification Regulations is subject to regulation 5(1), just as Article 9(2) is subject to Article 9(1), something reinforced by the expression in Article 9(2), "acts of persecution as qualified in paragraph 1". So in both those measures one is taken back to the first paragraph where there is a "seriousness" requirement, as one would expect.

Section 148 of the Penal Code 1991 (Act No. 8 1991). Flogging with 100 lashes and imprisonment for up to 5 years are for first time and second time offenders. Life imprisonment is an alternative to the death penalty for those who are convicted for the third time. 44 Sections 145, 146 and 148 of the Penal Code Act of 1950 (Chapter 20). 45 In the case of Sudan, the UK Country Information Service in a letter to the UKBA in 2010 conceded in another case that in Sudan gay men are subject to local laws and customs (communication to Wilson Solicitors LLP). In the case of Uganda, the findings of fact have been superseded by the case of R (on the application of SB (Uganda) v Secretary of State for the Home Department [2010] EWHC 338 (Admin). This indicates why accurate country background evidence is so essential. The lower Tribunal in OO (Sudan) relied on a single paragraph in the US State Department Report which did not evidence prosecution, rather than a country expert report which supported the view of a British Embassy letter of 2000 which stated that they would not be surprised if persecution exists. The lower Tribunal in JM (Uganda) in the reported Country Guidance determination (JM (Uganda) ) held, and this was affirmed by the Court of Appeal that there was no evidence of arrests or prosecution of gay men or lesbians in Uganda, even though there was an article dated 11th of September 2007 entitled Threats of Arrests and State-Sponsored Violence Against Gay Men, Lesbians, Transgenders in Uganda, published by the International Gay and Lesbian Human Rights Commission (ILGHRC). The evidence of actual violence to individuals was discounted by the Court of Appeal on the basis that the document did not show that they were targeted because they were lesbian or gay men. This is even where the organisation which compiled the report is a lesbian and gay organisation [see 30 and 31 of judgment]. This finding arose out of a submission made by the Secretary of State in her skeleton argument. 46 Refugee or Persons in need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) (commencement 9 October 2006).

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19. For convenience and brevity I will refer now only to the Directive rather than the Regulations as well. Under Article 9(1)(a), whatever the form the act or persecution may take, whether an act of physical violence or a discriminatory legal measure, it will only amount to persecution if it, by itself or in repeated form, is a sufficiently severe violation of basic human rights. Indeed, under that particular paragraph, 9(1)(a), the human rights which have to be severely violated are identified as those rights from which derogation cannot be made under Article 15 of the ECHR. Those are the rights under Articles 2, 3, 4(1) and 7; that is to say, the right to life; the right not to be subjected to torture or to inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude, and the right not to be convicted of something which was not a criminal offence at the time of the act or omission. 20. It is of course right that the identification of those basic rights is preceded by the words "in particular"; this court, however, has held in SH (Palestinian territories) v SSHD [2008] EWCA Civ 1150 that this does not indicate that those rights are merely examples of the relevant rights but are exhaustive of what is meant by "basic human rights". Scott Baker LJ, who gave the leading judgment, accepted the arguments advanced on behalf of the Secretary of State in favour of construing the words in a definitional rather than a non-exhaustive sense. The reasons for so doing are set out in paragraph 43 of his judgment, which I need not repeat.

21. But it is on Article 9(1)(b) that Mr Chelvan relies when seeking to show that matters have changed since Amare was decided. There is no dispute between the parties that Article 9(1)(b), dealing with cases where there is an accumulation of various measures, allows for persecution to be established where there is a violation of human rights, where those rights are not confined to the non-derogable rights referred to in Article 9(1)(a). Ms Collier, on behalf of the Secretary of State, accepts that. So a sufficiently serious violation of Article 8 rights in an applicant's home country might amount to persecution. That perhaps is hardly surprising since it accords with our own domestic law as recognised in the case of J.

22. But the appellants' case is that under Article 9(1)(b) persecution is established simply from the existence of legislation in that country criminalising homosexual conduct because that patently interferes with his Article 8 rights and does so in a continuing way. For my part, I cannot accept that proposition. Article 9(1)(b) contains 2 indicators to the contrary. The first is that the violation of human rights under that provision has to be "sufficiently severe", a phrase which in itself imports a test of severity of impact on the individual. 23. The second is that those words are then followed by the phrase: "as to affect an individual in a similar manner as mentioned in (a)". That takes one back to the degree of impact referred to in Article 9(1)(a) involving a severe violation of basic human rights. The rights involved under (b) may well be broader than those referred to in (a), but I accept Ms Collier's submission that the reference to affecting the individual "in a similar manner" means that it has to be shown that the impact on the individual is tantamount, or broadly equivalent, to a severe violation of one of the basic rights referred to in (a). The level of severity in terms of impact has to be similar if persecution is to be shown. That makes sense; there is no reason why one should be prescribing some lesser degree of impact on the individual under Article 9(1)(b) than under Article 9(1)(a). 24. In short, the Directive and the consequent Regulations do not widen the scope of the concept of persecution established under our own domestic case law. Decisions such as J and Amare remain good law. There has been no material shift in international consensus since those decisions, which remain binding on us. That is perhaps not surprising; the Directive had as its purpose the setting of minimum standards for member states to apply when deciding whether a person qualifies as a refugee, standards which must be met in member states. A particular state is entitled to be more generous towards those

The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

claiming asylum in its territory than the Directive would require if it so chooses, but it cannot fall below the minimum there set out. 25. It follows from this that, if persecution cannot be established under our jurisprudence independently of the Directive and Regulations, it is most unlikely that it can be established by reliance on those measures. Certainly the findings of fact in the present cases justified the AIT's conclusion that the appellants did not have a well-founded fear of persecution. The test in J was properly applied by the tribunals in both cases, and that discloses no error of law.

The reference to J at paragraph 21 of the judgment, refers to HJs proceedings for the first time before the England & Wales Court of Appeal in 2006 (J v Secretary of State for the Home Department [2006] EWCA Civ 1238; [2007] Imm A.R. 73). In this case, the Court of Appeal constructed the reasonably tolerability test linked to discretion, which has now been over-turned by the Supreme Court in 2010 in HJ/HT. The UK Governments concession at 21 of OO (Sudan) is important, as it accepts that there can be free-standing asylum claims based on persecution following from non-article 3 violations. What is clear from the reasoning in Dudgeon is that unjustified interference with private life rights is longterm and creates a fear. Consequently, the author is of the firm view that this judicial open door needs revisiting, in light of the Supreme Courts refocusing on the fear rather than the effect of discretion. The introduction in October 2009 of Ugandas Anti-Homosexuality Bill provoked international condemnation. Importantly, it was not just the fact that it proposed the inclusion of the death penalty for serial offenders (clause 13) resulting in media and political outrage, but the fact that the UK Administrative Court in February 2010, recognised the important signal such impending legislation would give to gay victims and straight persecutors: 47 There is evidence that both public and the state in Uganda are now more active in their opposition to the gay and lesbian community. The force of the evidence relating to the Anti-Homosexuality Bill (which of course has not yet been passed), and evidence that those in authority in Uganda are increasingly suggesting that the current Penal Code provisions relate to lesbians as well and gay men, is that it arguably reflects a growing willingness on the part of the state to enforce anti-homosexuality legislation in Uganda. As Schiemann LJ said in Jain (at page 83): " I am conscious of decisions such as Modinos v Cyprus 16 EHRR 492, where the court held that a policy of not prosecuting provides no guarantee that the policy will continue." There is also evidence in the material that, amongst significant sections of the public in Uganda, the Bill is a popular measure, and it has strengthened public attitudes against homosexuals there, with the result
See R (on the application of SB (Uganda)) v Secretary of State for the Home Department [2010] EWHC 338 (Admin) (UNHCR refworld) as per Hickinbottom, J [ 46].
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that there has been an increase in anti-homosexual ill-treatment since the Bill was tabled in October 2009. The Court, drawing on earlier Strasbourg authority, noted that a policy of not enforcing criminal legislation does not guarantee a continuance of such a policy. The fact that this Bill has now been re-introduced into the Ugandan Parliament 48, provides further force in state complicity, through legislation, with state-sanctioned persecution. The author personally witnessed the climate of fear when he visited Uganda in July 2011. There is no expression of same-sex love. There exists continual targeting of LGBTIs, to the point where whilst at the conference, the author was informed that a trans-male activist was forced to flee his burning home, which was set alight by his neighbours, on the basis of their desire to expel him from the neighbourhood on the sole basis of his gender identity. This activist was forced into hiding. This climate of actual fear arose out of the rhetoric surrounding legislation which was not yet enacted. That in burning his home, the trans activist could not find sanctity in his bedroom, which according to earlier analysis should provide him the freedom to conduct any sexual relationships in relative privacy and safety. It was the fact that he dared to express his identity outside the home which resulted in his illtreatment. It was due to the Bill, that such risk arose, feeding on the climate of fear. I T A L Y & A U S T R I A - G O O D P R A C T I C E?: At Question 36A of the Country Questionnaire accompanying the Fleeing Homophobia project report, the following question was asked: Is it required that those criminal law provisions are actually enforced, or is the existence of those criminal law provisions sufficient? Please provide further information. Decisions and/or case law. Good/bad practices Both Italy and Austria are identified by the Fleeing Homophobia report as being countries where Good Practice Exists? In the case of Italy, the answer is as follows: 49
The existence of criminal law provisions is generally sufficient, without the need to ensure that those rules are actually enforced, as criminal provisions are considered an obstacle to express a fundamental right. One TC reports that in some cases an enquire on actual enforcement of such laws was carried out to check the credibility of claimants that referred he suffered some periods of detentions because of SO/GI.

48 49

22nd June 2011. Authors: Simone Rossi and Girogio DellAmico (Italy Country Experts to Fleeing Homophobia project).

The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

Case law: 1) Trib. Trieste 304/1999 (attached 10) granted the refugee status to a gay from Benin: the acts of which as been given evidence can be qualified as serious violations of fundamental human rights, being a fundamental human right the choice of sexual orientation; the claimant suffered physical and psychological violence and, finally, Benins law provides ... imprisonment for homosexuals. The judge didnt take into consideration whether the laws were actually enforced. 2) Trib. Caltanisetta 7.6.2010 (attached 4) granted subsidiary protection to a gay from Tunisia: the claimant reported, either to the Commission either to the judge, of being homosexual; he also reported that in his country that condition caused him insults and mockery and that for such reason he was beaten, without having received any help by the local police, that on the contrary burst into laugh; he reported as well the risk of being convicted because in Tunisia homosexuality is a crime. the above circumstances, the truth of them being out of doubt, lead to grant the subsidiary protection.. being insulted, beaten or imprisoned on ground of sexual orientation represent a serious risk, which means a violation of fundamental human rights; it is clear, furthermore, that the applicant in his country, were homosexuality is a crime, would not be able to ask for protection or support to the police, given that the reaction of the police in the episode reported by the claimant, was of a deny of protection. The judge didnt take into consideration whether the laws were actually enforced. 3) Trib. Caltanisetta 10.2.2010 (attached 1) granted refugee status to a gay from Ghana: Indeed, in Ghana homosexuality is illegal: quite a number of articles of penal code regard crimes against the family and morality and can be used to punish homosexuals. Article 105, chapter 6 of Criminal Code provides that [the judge translate the article]. Furthermore, Ghanaian government accordingly to a report of International gay and lesbian human rights commission first of all prohibited a gay conference, and instructed the Ministry of Interior to identify and arrest the organizers, and secondly the Ministry of Information stressed the fact that unnatural carnal knowledge is illegal under the laws of the country and homosexuality, lesbianism and bestiality are offences under the laws of Ghana. In this case, the judge didnt explicitly take into consideration whether the laws were actually enforced. But the reference he made to the position of the government might be an implicit evaluation of the probable enforcement of the laws.

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4) Trib. Torino 5.11.2010 n. 426 (attached 2), granted refugee status to a lesbian from Senegal). She escaped a police raid during a private meeting of a lesbian group. The father wanted to force her to marriage. She then flew the country. TC Turin (2010) rejected the claim on ground of credibility. The Tribunal granted refugee status. In this case law the judge considered that the criminal law in Senegal was enforced: The Commission did not challenge the truth of the claimant story about the real risk of serious criminal sanctions in the country of origin, of Muslim inspiration and rejected the claim only because the claimant wasnt credible regarding her personal story. 5) Trib. Trieste 11.11.2009 n. 508/09 (gay; Senegal), reasoned that although in Senegal a sodomy law exists, there was not evidence of any fear of persecution among the citizens: however, we dont believe that that was the main reason to reject the claim as we argue that the main reason was credibility of SO.

These 5 Italian Tribunal determinations described above (Benin, Tunisia, Ghana and Senegal) all provide an insight on shifting the focus from whether criminalisation is actually enforced, but highlighted the narrative of individual harm or steps the country of origin had taken to introduce a climate of fear. The Fleeing Homophobia report cites the following with respect to the Italian approach to this point [ 2.3.1, page 30]: In Italy, criminalisation in itself is considered as persecutory. Criminalisation is per se considered a limitation to the realisation of a human right. This has led to recognition as a refugee of a lesbian applicant from Senegal; 50 a gay applicant from Egypt; 51 and a gay applicant from Iran 52; and to the grant of the subsidiary protection to a gay applicant from Ghana 53. The enforcement of criminal law is not an issue in Italian practice: authorities and courts do not carry out an enquiry about the enforcement of criminal law. 54

Tribunale (Tribunal) Torino, 5 November 2010, 426/10. Commissione territoriale per il riconoscimento della protezione internazionale di Gorizia (Regional committee for the recognition of international protection of Gorizia), January 2011. 52 Commissione territoriale per il riconoscimento della protezione internazionale di Milano (Regional committee for the recognition of international protection of Milan), 2011. 53 Tribunale (Tribunal) Caltanisetta 10 February 2010; 54 Tribunale (Tribunal) Catania 4 March 2010, 1081/2010 (gay, Ghana); Tribunale (Tribunal) Trieste, 17 August 2009, 304/2009 (gay, Benin); Tribunale (Tribunal) Caltanisetta, 7 June 2010, (gay, Tunisia); Commissione territoriale per il riconoscimento della protezione internazionale di Gorizia (Regional committee for the recognition of international protection of Gorizia), January 2011 (gay, Egypt); Commissione territoriale per il riconoscimento della protezione internazionale di Milano (Regional committee for the recognition of international protection of Milan), 2011 (gay, Iran). In all the above cases the applicant was granted refugee status or subsidiary protection and in none of the above decisions/cases the enforcement of criminalization was assessed. Only Tribunale (Tribunal) Trieste 11 November 2009 , 508/09 (gay; Senegal), reasoned that although
51

50

The case for defining persecution to include unenforced criminalisation of same-sex conduct S Chelvan

In the case of Austria, the answer is as follows (excluding German transcript): 55

This is especially important for cases from Iran, Afghanistan and Gambia. It is enough that the law itself exists. It is not necessary that the person has already been prosecuted. UBAS 28.09.1998, 203.430/0-IX/26/98: According to this there were also other decisions: AsylGH 10.03.2010, C10 257.854-0/2008; 20.07.2009, C5 257.855-0/2008 (Afghanistan); 03.08.2009, A2 402.885-1/2008 (Gambia); 17.02.2009, E2 255.708-2/2008; 31.03.2009, E3 314.390-1/2008; UBAS 27.01.1999, 203.912/0VIII/24/98; 11.11.2010, E17 411.562-1/2010 (Iran).

As the Fleeing Homophobia report states in the case of Austria [ 2.3.1, page 31]: In 1998 the Austrian Federal Asylum Review Board showed a sensitive approach to the use of country of origin information in a gay Iranian case: 'Although UNHCR reportedly does not know of any examples in which a person has been prosecuted based on his homosexuality, this does not provide for a conclusion considering the reasons why no prosecutions have occurred. There might not have been any trials based on homosexuality, homosexual people might have fled Iran and have been granted asylum in another country, or the appropriate evidence might not have been submitted. Therefore, from this information it cannot be concluded that the provisions criminalizing homosexual acts, which do exist in Iran, are not being enforced in practice'. 56 This decision creates a lacuna in the evidence and presumes that there does exist prosecutions, and the lack of evidence of such prosecutions is due to a multitude of reasons, including a lack of appropriate evidence being submitted. The author is of the view that the reasoning which exists in this decision is troubling, and does not provide a signpost for other European duty-bearing states to travel towards, and does not show good practice relating to accepting that criminalisation per se should be accepted as persecutory. Q U E S T I O N F O R C O N F E R E N C E?: In light of the approaches of Italy and Austria, where they ignore concentration on enforcement of laws, should an approach identifying the link between criminalisation per se amounting to fear of harm be enough to provide refugee status determination? S. Chelvan, 4th September 2011
in Senegal a sodomy law exists, there was no evidence of any fear of persecution among the citizens: however, the main reason to reject the claim seemingly was the lack of credibility of the applicants sexual orientation. 55 Author: Judith Ruderstaller (Austria Country Expert). 56 Unabhngiger Bundesasylsenat (Independent Federal. Asylum Review Board) 28 September 1998, 203.430/0-IX/26/98.

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