Bojana Asanovic Responds to John Tobin

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

Bojana Asanovic is a barrister at Lamb Building, Chambers of Ami Feder in London. She specialises in immigration, asylum and human rights law.

This note examines the way in which asylum claims based on sexual identity are determined as a flagrant breach of Article 8 ECHR after HJ and HT, UKSC (2010).  I will take the case of DBN v the United Kingdom, (26550/10) ECHR 192 (2011) as its starting point, and follow with a brief look at potential consequences of an evidentiary approach that places importance on the need for asylum seekers to prove psychological harm in Article 8 cases.

On January 27, 2011, the European Court of Human Rights (‘ECtHR’) communicated the case of DBN v. the United Kingdom, which concerned a lesbian from Zimbabwe who claimed violations of Articles 3 and 8 of the European Convention on Human Rights.^[1] This case post-dated HJ and HT in the Supreme Court.  In D.B.N., the question to the parties in relation to Article 8 was phrased thus:

“Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?”^[2]

The applicant argued that in the context of systematic, virulent, state-sponsored homophobic propaganda with evidence of discrimination and harassment by the police, it was not possible to enjoy a protected right to privacy because she would be forced to live in fear and secrecy as a result of her sexual identity.

On August 31, 2004, in F. v. the United Kingdom (Application no. 17341/03, June 22, 2004), the application of a gay Iranian man was declared inadmissible both in relation to violations of Articles 3 and 8 ECHR.  The Court deemed that there was insufficient background evidence of prohibited treatment in terms of Article 3 ECHR, which was analysed on the basis of risk of prosecution for homosexual acts.  The Court found that it “must be acknowledged that the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse.”  Against that background, it was expressly stated that a violation of Article 8 of the Convention in a Council of Europe member state would not afford extra-territorial protection: “On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of  all the rights and freedoms set out in the Convention.”

The ECtHR in Dudgeon v UK (Application no. 7525/76, Oct. 22, 1981) examined the engagement of Article 8, finding a violation in a Council of Europe member state on the basis of legislation criminalizing sodomy in Northern Ireland.  The court found that the applicant experienced “fear, suffering and psychological distress,” or, in the words of the admissibility decision: “the effect of the repression of homosexuality on the private life of a homosexual.” there was no such willingness in the case of an applicant resisting removal to Iran, although no doubt he would had the same experience as the Northern Irish man, or in the words of the admissibility decision “chilling or restraining effect on expression of his sexuality.”^[3]

Protection from expulsion on the basis of a flagrant violation of Article 8 as envisaged in D.B.N., requires a breach, “so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed.”^[4] This would, on any reading, become almost indistinguishable from a violation of a right that is protected under Article 3 (prohibition of expulsion on account of inhuman and degrading treatment) if the substance or essence of the right  concerns one’s identity.  This makes the distinction artificial and calls for a more open approach to the notion of a flagrant breach of Article 8.  If it is impossible to lead a life as a lesbian based on harm amounting to less than inhuman and degrading treatment, there is potential for an evolving interpretation of Article 8 in expulsion cases with a view towards applying standards similar to those in X and Dudgeon.

Article 8 protects broad elements of the personal sphere, such as “gender identification, name and sexual orientation and sexual life” and  a “right to identity and personal development, and the right to establish and develop relationships with other human beings in the outside world” (e.g. Bensaid v. the United Kingdom (Application no. 44599/98, Feb. 6, 2001).  It is clearly capable of accommodating claims for international protection based on violations of the right to identity.  With respect to Article 8, it may well be that the overlap with psychological harm does not necessarily make for a consistent approach to claims based on that breach.

For the same reasons that Professor Hathaway and Dr. Pobjoy say that psychological harm is plausible in refugee case – as most psychiatrists will say that sexual identity is a core part of identity and its concealment has a detrimental effect on mental health – the likelihood of psychological harm in itself is a part and parcel of the way that the violation of right to private life in its emanation of sexual identity should be defined.  Such a right warrants protection without the requirement of proof of individual psychiatric injury.

Psychological harm, if proven by psychiatric evidence will be of different degrees and forms .  For someone of fragile mental health or with a preexisting condition, the future harm of of self-repression may also cross the threshold into Article 8 in its meaning of physical and moral integrity, and also article 3, irrespective of identity.  While such proof would indeed assist the claim that the right to private life and sexual identity had been violated, it may also in turn lead to an inquiry into not only the mechanisms of protection but also the adequacy of care in the receiving state.^[5] This issue may be difficult to make out in the context of N v United Kingdom (Application no. 26565/05)^[6] and Bensaid. However, realistically, the vast majority of claimants would be returned to leading confined lives of  self-censorship and denigration with potentially harmful psychological effects.  This makes one wonder whether the proof of psychological harm in each case may mean that the courts would seek to engage only with the most severe forms of that harm, rather than the issue of protection of expression of sexual identity so as to protect those in a situation of having to “live a lie.”

The Convention is a living instrument, and the fact that there were no communicated cases of gay applicants under Article 8 in an extra-territorial context until HJ and HT is significant.  The importance of identity in HJ and HT, as demonstrated by the illustrative point in relation to Kylie concerts,  broadened the scope for examination of what constitutes a flagrant breach of Article 8.  The stereotype described by Lord Rodger gives focus to the need to assess the totality of forms of self-expression of sexual identity that impact the protected right to private life, both in the sense of one’s ability to form relationships and one’s personal development.

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