R (on the application of B) v. Secretary of State for the Home Department

"Issue:

1) Did the Secretary of State err in treating the claimant's claim as not a fresh claim, as the claimant had raised two additional matters: (a) there was a realistic prospect that an immigration judge would find that the claimant was at risk of persecution because he could not / would not be discreet about his sexuality if he were to be returned to Algeria; and (b) it was not proportionate in terms of Article 8 to remove the claimant given the claimant's stable relationship with his partner in the country?

Considerations (Mr Justice Collins):

Paragraph 16 - The suggested fresh claim was supported by a number of statements, including of course the statement from the claimant himself, and what was said was that he had here in this country not acted in what could be regarded as a discreet fashion. He had joined Gay Pride marches. Photographs are produced showing his involvement. He had been involved also in various organisations supporting gay rights, and he asserted that, in those circumstances, it would be extremely hard for him to live a discreet life in a
homophobic society such as Algeria. He also incidentally added that his family had disowned him and so he would not only have to deal with the loss of their support, but
in his view they would cause trouble for him and report him to the police, and as a result he too would have difficulty in getting the necessary papers.

Paragraph 17 - There were also statements from others who confirmed his activities in the gay community and his relationship with his partner. That was one which, on the evidence now available and indeed having regard to the statements put before the Secretary of State back in March 2006, made it clear that they had met in 2001, had decided that they would like to live together, but unfortunately it seems that Mr S had got himself into difficulties in that he had become addicted to alcohol and had also taken drugs.
This was something that the claimant was not in any way involved with. Indeed, he objected to drugs and he drank very little. No doubt his Muslim background
contributed to that. However, he did not give Mr S up, albeit they did not live together, and he helped him through his addiction. Mr S has now come through it, and they in
fact started to live together, as I understand it, towards the end of 2005 or at the beginning of 2006. The relationship is, as I have said, on the evidence of both of them,
now a stable relationship, and there is evidence from others, which again was put before the Secretary of State, that that was indeed the situation.

Paragraph 18 - There is also important evidence from a Dr Korzinski, to whom the claimant had been referred for mental health assessment. The conclusion of Dr Korzinski was that he had had a problem in understanding his homosexuality, but in the context of a supportive and progressive gay community he was now able to accept himself as a homosexual, and this understanding took place in the key developmental period from adolescence to adulthood. The doctor continues:

""He has no experience of living in a community in which his behavioural characteristics, that are distinctively feminine, would have to be masked. If he were to live in a society that has an institutionalised prejudicial hatred of homosexuality, comparable to racism, he would be at extreme risk within that society. He has none of the life skills that one would
expect to have developed if his homosexuality had emerged in a repressive society. Survival in such a society requires highly developed skill sets that are honed during one's development over a period of many years. People living in these societies are condemned to a life in the shadows and the constant fear of being discovered. The claimant does not possess the necessary skill sets to live in such a society and it is extremely improbable that at this stage of his adulthood life that he would be able to develop such skills.""

Paragraph 19 - That is, it is submitted, of considerable importance because it shows that he would be unable to act discreetly in the sense that he would be unable to conceal the fact of his homosexuality now, whatever may have been the position if one had been looking at him growing up some years ago in a homophobic society.

Paragraph 21 - The doctor also referred to a mental problem in the sense that he had depression. That he was suffering from depression one would have thought was highly probable having regard to the situation in which he found himself. Whether or not any fear of return was well-founded, it clearly existed subjectively, and in those circumstances to have hanging over him the possibility of return to a situation which he found intolerable would clearly produce depression.

Paragraph 22 - That then was the fresh claim -- or the alleged fresh claim. What was fresh, if accepted, was the question of whether he could be discreet in his homosexuality if returned to Algeria and what effect that would be likely to have, and secondly upsetting the nature of the relationship with Mr S, which it was said was established to be far more
permanent than was the situation when the matter was considered by the adjudicator.

Paragraph 23 - The refusal letter by the Secretary of State of 4 May 2006 dealt in detail with the matters put forward. paragraph 7 referred to the adjudicator's finding that there was little objective evidence of persecution of homosexuals in Algeria, and no evidence that the claimant could not go about his business discreetly as he was doing in the United
Kingdom. At paragraph 8 this was said:

""You have not submitted any further objective evidence documenting the persecution of homosexuals in Algeria. Rather you have submitted as new evidence a statement made by your client and photographs of your client's participation in the 2004 and 2005 Gay Pride marches with his partner. Your client states in paragraph 32 to 34 'I am not a discreet gay Muslim man. In summer, I enjoy sunbathing topless in Soho Square and on Hampstead Heath, and relaxed gay pavement cafe lifestyle that exists in London ...' It is noted that the evidence you have submitted on behalf of the applicant all dates from after the dismissal of your client's asylum appeal in 2003. It is considered that your client has gone out of his way to express his homosexuality in public in an attempt to further his asylum and human rights claim in light of the adjudicator's findings and your client's activities are purely intended to frustrate his removal from the United Kingdom. In any event it is not considered that participation in these marches adds anything to your client's claim. It is still open to your client to practise his homosexuality in Algeria albeit discreetly.""

Paragraph 24 - It seems to me that the assertion that this was a deliberate attempt to further the asylum claim, effectively casting doubt upon the genuineness of the evidence of his nature and the form in which his homosexuality demonstrates itself, is wholly unjustified, particularly in light of the evidence of the doctor. Of course, it may be that if the matter
is investigated and tested, that that conclusion could be drawn, although it seems highly unlikely in light of the evidence which is produced. But having regard to the approach
that should be adopted in these cases, to which I shall come in due course, by the Secretary of State, I do not think it was open to him to conclude as a matter of fact in
that way and to reject the bona fides of the evidence of the claimant's personality.

Paragraph 25 - The letter then goes on to deal with the relationship with Mr S. It says:

""Consideration has also been given to the letter from [Mr S] dated 6 March in which he states that he and [the claimant] are in a relationship and have been living together since 2001.""

Paragraph 26 - Actually, the letter does not say that; that is an inaccurate representation of what is said. I have already indicated what the background was of the relationship between Mr S and the claimant. It goes on:

""There is no evidence to suggest that they are living together and in a stable and continuous relationship.""

Paragraph 27 - That is wrong. There was evidence that by then, early 2006, they were living together and were in a stable relationship. The fact that they had not been living together the whole time since 2001 is nothing to the point because it is the nature of the relationship and the circumstances of it which are material. If the Secretary of State had properly considered the evidence that was before him, he ought to have drawn the conclusion that there was material which suggested that the two had been together in the sense that they had a clear mutual attraction to each other, and that the claimant had in effect nursed Mr S through his alcoholism, and Mr S had had an effect for his part in helping the claimant with his depression and his ability to enjoy life in this country.

Paragraph 28 - So there are two major errors in the letter that was written. That does not mean necessarily that the conclusion reached that this was not to be regarded as a fresh claim was a wrong one. What the Secretary of State had to consider was whether the material put forward, insofar as it was different from that which had been relied on before the adjudicator, might, if an appeal was heard, result in a different decision. Of course, the Secretary of State is entitled, in reaching his decision, to reject evidence if it is
intrinsically incredible or if it flies in the face of decisions reached by an adjudicator in a previous appeal. What the Secretary of State should not do is to reach his own
conclusions of fact when there are reasonable views to be held one way or the other about them. That applies particularly in the present case to the conclusion that he had
deliberately attempted wrongly and no doubt dishonestly to exaggerate his homosexuality in order to better his asylum claim, and further there was the error in
suggesting that there was no evidence to suggest the relationship between Mr S and the claimant was such as he asserted.

Paragraph 29 - I still have to ask myself whether there is a reasonable possibility that if the Secretary of State were to maintain his refusal, there could be a different decision. It is important to note that the evidence as to persecution of homosexuals in Algeria is not strong if one bears in mind what has to be established in order to show persecution within the meaning of the Refugee Convention. Nowadays the matter is set out in a Directive from the European Union, which is Council Directive 2004/83/EC, Article 9 of which
defines acts of persecution. That is translated into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI
2006/2525), and Regulation 5 of that defines acts of persecution. 5(1) provides:

""5(1) In deciding whether a person is a refugee an act of persecution must be:

(a) sufficiently serious by its 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 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).

Paragraph 31 - In order to amount to persecution, the acts in question have to be sufficiently serious. What we have here, in the submission of Mr Chirico, is a private life or a lifestyle which can be translated into terms of Article 8 which will be seriously compromised by the homophobic society in Algeria. The claimant will be afraid of what might happen
to him if he acts as he would normally act, having regard to his inclinations were he able to express his homosexuality openly as is the case in this country. He has hanging
over him not only the prospect of a possible prosecution, albeit the evidence is that there have been none that have come to notice, but perhaps more importantly, not only
discrimination but possible violence and possible arrest by police officers, and he fears the possibility of attacks from Muslim fundamentalists. Miss Chan says that that is all
very speculative and there really is not any evidence to support it. However, as I say, it is to be noted that the whole basis of the determination was that he would act discreetly,
as it was put, and the Secretary of State picks that up in the decision that he has reached.

Paragraph 32 - If he is unable to act discreetly, would that make a difference? The way that the matter was dealt with suggests that it could. Certainly, as it seems to me, it is a matter that could, if tested, produce a different result, provided of course that the innate characteristics spoken to by the doctor are accepted and are established, and there is
perhaps some further evidence in relation to what could happen in Algeria, although that is not essential.

Paragraph 33 - One goes on then to consider the question of the relationship with Mr S. It seems to me that the length of time that the claimant has been here and the nature of the relationship, and whether or not it would be possible for that relationship to persist in Algeria, whether for a short time while the claimant was applying for entry clearance or for a longer time if the suggestion is that the relationship could continue there, are all relevant factors in deciding whether it would be proportionate to return. I do not for a
moment suggest that they would necessarily prevail, but they should be considered, and they should be considered on the basis that there is a genuine long-standing relationship with Mr S. That is a matter which has not been accepted hitherto, and that is a change of circumstances which, coupled with the other point could, I do not say would, result
in a different decision. After all, one has to bear in mind, albeit his immigration history is not a particularly satisfactory one, the claimant arrived here when he was only 15.
His activities in regard to immigration controls were when he was a young person, deserted by those who should have been responsible, and put in a position of having to
fend for himself. He was then wrongly treated as an adult, it would seem, and as a result kept in prison for a year, which must have scarred him to no small extent.

Paragraph 34 - In those circumstances, it may well be that there is a reasonable excuse for his past flouting of the immigration laws, and it is certainly a matter that ought to be considered in the round. But he has now been out of Algeria and for most of the time in this country for getting on for 13 years, and that for a person between the ages of 15 and 28 is a very substantial proportion of his life. That is also a relevant consideration in deciding whether, in the circumstances of this case, any return is proportionate.

Paragraph 35 - There is no question but that immigration control will normally mean that return is proportionate, and it requires a special case to establish that it is not. But it seems to me that the circumstances of this case are such that at least that matter is capable of consideration, coupled with the question of whether he can discreetly exercise his
homosexuality, and justifies, somewhat exceptionally, this court in saying that the Secretary of State did err in treating this as a claim which was not a fresh claim."