General

Jenni Millbank Reflects on Panel 3 and Responds to Guglielmo Verdirame

  In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation.  The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”  The authors argue to the contrary that refugee law should “draw a line” so as to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical.  I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice. Reasoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity, is one of, if not the, most significant and resilient barrier to the fair adjudication of sexual orientation based refugee claims worldwide to date.  In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT.  The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.  The Supreme Court largely approved the majority approach taken in the High Court of Australia decision in S395 (2003) but condemned discretion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights.  Lord Hope stated that “[gay people] are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”  While Lord Rodger held that

"[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts.  No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.  Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution.  Such an assumption about gay men and lesbian women is equally unacceptable."