The appellants were both gay men. HJ, 40 years old, was an Iranian. He claimed asylum on arrival in the United Kingdom. He practised homosexuality in Iran and had continued to do so in the United Kingdom. HT, 36 years old, was a citizen of Cameroon. He claimed asylum following his arrest. He had presented a false passport while in transit to Montreal. He too was a practising homosexual. Both appellants claimed that they have a well-founded fear that they would be persecuted if they were to be returned to their home countries. The Respondent (Secretary of State for the Home Department) refused asylum in both cases. HJ’s appeal against that decision was dismissed by the Asylum and Immigration Tribunal.
Then the Court of Appeal remitted his case to the Tribunal for reconsideration: J v Secretary of State for the Home Department  EWCA Civ 1238. HT’s appeal to the Tribunal was also dismissed. The appellants appealed against these decisions to the Court of Appeal which dismissed both appeals:  EWCA Civ 172.
Article 1A(2) of the Convention provide that a refugee is a person who “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country…”. Amongst the benefits that a person who satisfy that definition enjoys under the Convention is the prohibition of expulsion or return. Article 33(1) provide: No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
There is no doubt that gay men and women may be considered to be a particular social group for this purpose The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.
Next to constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. The Convention provides surrogate protection, which is activated only upon the failure of state protection. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.
The Supreme Court held that international protection is available only to those members of the particular social group who can show that they have a well-founded fear of being persecuted for reasons of their membership of it who, owing to that fear, were unwilling to avail themselves of the protection of their home country. Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1). To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied.
Well-founded fear: the causative condition
In situations such as those presented by the appeals the fact that members of the particular social group were persecuted may not be seriously in issue. In Iran, where the death penalty exists, persons have been hanged simply because they were gay. In Cameroon homosexuality is illegal and the sanctions for it include sentences of up to five years imprisonment. Although prosecutions are rare, homosexuals are liable to be denounced and subjected to acts of violence and harassment against which the state offers no protection. But the situation in the country of origin is only the beginning, not the end, of the inquiry. The Convention directs attention to the state of mind of the individual. It is the fear which that person has that must be examined and shown to be well-founded. In cases where the fear is of persecution for reasons of religion or political opinion, it may be necessary to examine the nature and consequences of any activity that the applicant claims he or she may wish to pursue if returned to the country of nationality. It will not be enough for the person merely to assert that persons who are of that religion or political opinion are liable to be persecuted. The question is, what will the applicant actually do, and does what he or she will in fact do justify the fear that is complained of?
Regarding the submission that it was proper to examine the question whether it would be objectively reasonable for the applicant to be expected to tolerate some element of concealment when he is returned to the country of his nationality, the Court held that it cannot be dismissed so easily. Behaviour which reveals one’s sexual orientation, whether one is gay or straight, varies from individual to individual. It occupies a wide spectrum, from people who are naturally reticent and have no particular desire to establish a sexual relationship with anybody to those who wish, for various reasons, to proclaim in public their sexual identity. Social and family disapproval of overt sexual behaviour of any kind, gay or straight, may weigh more heavily with some people than others. Concealment due to a well founded fear of persecution is one thing. Concealment in reaction to family or social pressures is another. So one must ask why the applicant will conduct himself in this way. A carefully nuanced approach is called for, to separate out those who are truly in need of surrogate protection from those who are not.
(a) The first stage is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. This part of the test can be considered having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.
(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.
(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. It would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.
(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.
(e) It will be the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, The applicant will be entitled to asylum. It should always be remembered that the purpose of this exercise is to separate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant.
Finally the Supreme Court allowed the appeals and set aside the orders of the Court of Appeal and remitted both cases to the Tribunal, for further reconsideration in HJ’s case and for reconsideration in the case of HT, in the light of the guidance given by the Court.