HJ Iran and HJ Cameroon - case HJI Iran, analysis and outcome of the case. Available for any other type PDF

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case HJI Iran, analysis and outcome of the case. Available for any other type of courses, goes straight to the point...

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HJ Iran and HJ Cameroon Previous case-law: Facts: Outcome:

Two approaches to PSG: - Ejusdem Generis or Protected Characteristics approach: most common, adopted in the UK - Social approach: predominant in Australia Unchangeable characteristics: sexual orientation Problematic as many jurisdictions insist on the ‘living discretely’ test ↔ if applicant ‘lives discretely’ they will fail the ‘social visibility’ test Problems also arise with the (perceived lack of) severity of ‘persecutory acts’ → often held to be merely ‘discriminatory acts’ 2012 UNHCR guidance notes on sexual orientation claims HJ (Iran) and HT (Cameroon) [2010]: new ‘discretion test’: a) ‘discretion’ because of fear of persecution → warrants international protection b) ‘discretion’ for reasons other than fear of persecution (ex: personal choice or social pressures) → does not warrant international protection Art 10(1)(d) EU Qualification Directive A group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; MPSG – X, Y and Z definition […] a group is regarded as a ‘particular social group’ where, inter alia, two conditions are met. First, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. Second, that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. As far as concerns the first of those conditions, it is common ground that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it.[…].

The second condition assumes that, in the country of origin concerned, the group whose members share the same sexual orientation has a distinct identity because it is perceived by the surrounding society as being different. In that connection, it should be acknowledged that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports a finding that those persons form a separate group which is perceived by the surrounding society as being different. In that connection, it is important to state that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it. Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution. As regards the restraint that a person should exercise, in the system provided for by the Directive, when assessing whether an applicant has a well-founded fear of being persecuted, the competent authorities are required to ascertain whether or not the circumstances established constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subject to acts of persecution […]. That assessment of the extent of the risk, which must, in all cases, be carried out with vigilance and care […] will be based solely on a specific evaluation of the facts and circumstances,[…]. None of those rules states that, in assessing the extent of the risk of actual acts of persecution in a particular situation, it is necessary to take account of the possibility open to the applicant of avoiding the risk of persecution by abstaining from the religious (sic) practice in question and, consequently, renouncing the protection which the Directive is intended to afford the applicant by conferring refugee status (see, by analogy, Y and Z, paragraph 78). It follows that the person concerned must be granted refugee status, in accordance with Article 13 of the Directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect. Plausibility is assessed following stereotypes Lord Rodger in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31, [78]: […] 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.’...