Dr. Hugo Storey Responds to John Tobin

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

Dr. Hugo Storey^[1] is a Senior Judge of the U.K. Upper Tribunal Immigration and Asylum Chamber

In the limited time and space, may I offer to following observations for Panel 2:

(1) The S395 and HJ (Iran) cases are truly landmark cases. Hathaway and Pobjoy’s (H and P) article is equally a truly landmark article.  And the high-quality response pieces sparked by their article are extremely important, not just for the issue of the proper approach to LGBTI claims, but for refugee jurisprudence as a whole, in particular its approach to the issue of behaviour modification.

(2) Framing matters this way helps perhaps remind ourselves that in general terms it would seem desirable if claims involving the different kinds of protected characteristics could be dealt with in pari materiae – so that what is said about sexual orientation cases also holds true for religious orientation and political orientation etc. cases.  It may be that in some limited respects each type of case is sui generis, indeed, both H and P (p.110)  and Jenni Millbank (p.119) emphasise this and I briefly allude to it below. But in general terms the meaning of “being persecuted” etc. cannot vary from subject-matter to subject-matter.

(3) This point should alert us to the fact that we had best not assume that S395 and HJ (Iran) are the last word. Quite soon the Court of Justice of the European Union (CJEU) will give its judgment on a preliminary reference from the Bundesverwaltungsgericht (Germany) in Federal Republic of Germany v. Y (Case C-71/11). The CJEU was originally seized of another German case which directly concerned the gay concealment issues, but this fell way (as noted by H and P, n.33). But Case C-71/11 has just now had an oral hearing and it raises the concealment/discretion/abstinence issue in the (arguably analogous) context of a religious persecution case involving two Ahmadis from Pakistan. The first question the CJEU is asked is whether a violation of religious freedom sufficiently severe to give rise to persecution “arises only if the core area of that religious freedom is adversely affected”?  One further question asked is whether there can be acts of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC (which defines persecution) “ in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?” A final question asks whether persecution arises if it is established that the applicant will carry out certain religious practices –other than those falling within the core area – after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, “or is the applicant to be expected to abstain from engaging in such religious practices in the future?” The answers of the CJEU will, of course, be legally binding throughout the 29 Member States of the EU – including on the UK Supreme Court.  Immediately it can be seen that several of the issues that animate the current debate, that of the use of  “binaries” such as “core/periphery” and the employment of some kind of “reasonable expectation” test in particular – may very likely be tackled by the CJEU.^[2]

(4) If I may  next say something about the human rights approach, deliberately kept to a general level. Whilst Tobin and Goodman are justified in questioning certain aspects of the human rights approach to interpretation of  “being persecuted” and other key terms of the Refuge Convention, it is important to keep these concerns in context. Within one part of the world (the EU) a human rights approach is now mandated by treaty (see 3 above). In the rest of the world the approach taken by judges is increasingly and predominantly not whether to adopt a human rights approach but only to decide what type of human rights approach is apposite. UNHCR increasingly encourages such an approach. In refugee law there really is no respectable alternative to a human rights approach. Hence Tobin’s warning about the need for “system coherence”  and Goodman’s  concerns about whether international law can bear the weight have to be kept in context. There is no alternative. And given their  (and everyone’s) acceptance that not all violations of human rights can amount to persecution, the only real issue is what criteria should be used to decide which violations of non-absolute human rights are sufficiently serious to be persecutory. If that is the real issue then, as Tobin says, “greater dialogue between refugee and human rights lawyers, scholars and judges” will be imperative.

(5) If a human rights approach is accepted as being appropriate, then it must be right to examine key decisions to see to what extent they embody such an approach. Significant parts of H and P’s critique examine the respects in which S395 and HJ (Iran), although both cases say they employ a human rights approach to a degree, do not really grapple with the relevant human rights norms that should apply in gay concealment cases. The point is well made by H and P and Tobin that it is all very well for the Supreme Court judges in HJ (Iran) to identify the right of gay persons to live openly, but what precisely does that mean in international human rights terms? That is not particularly problematic in relation to situations in a country of origin where the consequent harms would consist in (exogenous or endogenous) violations of the absolute prohibition of ill treatment (Article 7, ICCPR for example). They are clearly persecutory.  But when it comes to consequent interferences that would only be with qualified or derogable rights such as the right to privacy and freedom of expression and assembly –  and most aspects of the right to religion (which will be addressed in the CJEU reference) – things become more complicated. Lord Dyson’s reference in HJ (Iran) to  “human dignity” might seem too amorphous.

(6) It is here that Tobin (p.110ff) I think makes a very good point in response to H and P’s somewhat dismissive treatment of the role in sexual orientation cases of the right to privacy (or right to respect for private life), since in human rights law this right has not just an interior dimension but an exterior one concerned with a person’s relationships with circles of friends and the wider community. If that is right, then for H and P to say on the one hand that  “”privacy”…is precisely what these refugee claimants seek to avoid” and then to add on the other hand that “[t]hey would, to the contrary, like very much to be able to be who they are openly and without fear of severe consequences that would follow from failure to remain entirely private about their sexual orientation” seems something of an oxymoron. I do not think that H and P’s critique of the approach taken in key New Zealand cases—cases that seek to analyse such cases in terms of the right to privacy—really identifies any insuperable difficulties.

(7) Given everyone’s acceptance that not all violations of human rights amount to persecution, it is perhaps strange that there is not more specific focus within the debate on the criteria that should govern treatment of cases of gay concealment where the evidence does not establish that the harms sought to be avoided are sufficiently severe to amount to ill-treatment in relation to core entitlements. In this regard I don’t find H and P’s seminal article very helpful. Just when the reader thinks they are going to address these issues, they gather them up and treat them as being issues concerned exclusively with the nexus clause. Of course their place in the  nexus discussion is important but much more important is the “being persecuted” discussion.  As Richard Buxton (pp.393-94) points out, “core entitlements” are something different from the Convention reasons.   So, whilst what H and P say about “line-drawing” in the context of the causal nexus is illuminating, it ducks the bigger issues of how in such cases is the decision-maker—in order to decide whether the case is one of persecution—to draw lines in sexual orientation or religious orientation or political orientation cases in which the factual scenario presupposes that on return the individual concerned will conceal or avoid or abstain from manifesting such orientation more publicly? Tobin rightly seeks to address such issues more squarely than H and P do, particularly in the context of discussing same-sex marriage and same-sex adoption. On these two issues, he appears concerned that presently the human rights law answer is that—unless their denial would cause severe psychological or endogenous harm—these are not protected activities, whereas it seems to me that this is what adherence to human rights law entails: that we accept its limits, mindful of course that it is constantly evolving and so the answer may change sooner or later.

(8) More generally, does not the human rights framework entail that it is entirely legitimate to ask of the claim in all cases—whether they be sexual orientation, religious orientation or political orientation cases—does what you would want to do, if you had not decided to behave discreetly, amount to behaviour proportionate to the rights and freedoms of others or to other legitimate grounds on which the state might seek to interfere (e.g. prevention of disorder or crime)?  Human rights law, of course, will apply anxious scrutiny to whether state behaviour is itself consistent with basic human rights norms (e.g. it would not condone a state applying laws that criminalise consensual sex between adults or the local populace harming persons practising a minority religious faith), but subject to that proviso does not a human rights analysis entail that the  following cannot establish a real risk of “being persecuted”: the claimant who but for fear of persecution would seek to preach religious hatred; the claimant who but for fear of persecution would seek to incite political colleagues to violence; the claimant who but for fear of persecution would promote ethnic cleansing?. I wish H and P had said more about this. (I deliberately eschew seeking to give an example concerned with sexual orientation simply to avoid the debate then focussing on the example rather than the principle, although it may be that this illustrates that sexual orientation cases may not be on all fours with other protected characteristic cases.)

(9) This leads me to a final point, which concerns the discussion about “core” and “peripheral activities.” H and P rely very much on this classification, as does Tobin. Millbank (p.112ff) castigates it, but it seems to me that some distinction along these lines is entailed by one of the fundamental premises of refugee status determination: that it must be based on an individual assessment^[3] sensitive to  particular circumstances, so as to show a “well-founded fear.”  What for one person may be unimportant (e.g. practising his or her religion) for another may be fundamental to his or her identity (e.g. practising his or her religion in public). Is not the underlying sense of H and P’s concerns about the Kylie concerts example that it is hard to see how for almost everyone, being able to go to a Kylie concert would impinge on their fundamental identities?  And is that not also why the UK Supreme Court did not consider there could be persecution if the voluntary concealment is for purely personal or social reasons? And in the end, is not the critical question, to focus on whether the behaviour or lifestyle modification does or does not amount to (to use Albie Sach’s term) “self-oppression?” It does not seem to be that it can be assumed that it always will. I concur strongly with Verdirame on this point. What I would like to know from Millbank in particular is what examples she would accept to exist, of concealment cases, where it cannot be said something as serious as persecution is involved? And what I would like to know from Tobin is why he thinks it adverse or inequitable that applying human rights norms could in certain contexts “impose an evidentiary burden on GLBTI applicants to establish [the] requisite level of harm…” (p.116)? Why is the evidentiary burden considered to be less for other types of applicants?

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