Lucy Yeatman Responds to James Hathaway & Jason Pobjoy

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

Lucy Yeatman is a lecturer in law at the University of Greenwich, teaching Family Law and Human Rights Law. Her research focuses on same-sex parents and the law, and LGBTI asylum seekers and refugees.

Hathaway and Pobjoy argue that the decisions in S395 and HJ and HT achieved the right result for the asylum seekers involved, but for the wrong reasons.  They go on to argue that there were two ways in which the reasoning in both cases was flawed: first, in the reliance on the threat of exogenous harm which could not be objectively established and in consequence not giving due consideration to the threat of endogenous harm caused by enforced concealment; and second, in the failure to place any kind of limitation on the type of behaviour associated with sexual orientation that might give rise to protection under the Refugee Convention.  As John Tobin quite rightly concludes, “credit is due to Hathaway and Pobjoy for seeking to develop a stronger jurisprudential foundation on which to base claims for refugee status of GLBTI applicants” and he welcomes the emphasis they place on psychological harm as an important contribution to a “shift in the narrative of persecution.”  This paper will however object to the approach taken by Hathaway and Pobjoy for five reasons.

First, a distinction is drawn between requiring someone to return home and conceal their sexual orientation, and finding that if returned home, they will “for seclusion.”  They accept that there can be no basis in refugee law for requiring concealment, but argue that in both S395 and HJ and HT the appellants were not being required to conceal their sexual orientation but were opting to do so.  The UKSC quite rightly rejected this distinction,^[1] as the asylum seeker is not choosing to conceal their identity.  In fact, by virtue of having sought asylum in a country that recognises the rights of lesbian and gay people to live free from discrimination, the claimant is quite clearly opting not to conceal their identity.  If their asylum claim fails and they are returned home then this is not a choice.

Second, Hathaway and Pobjoy go on to argue, that where a person opts for concealment, it is not possible to identify a risk of persecutory harm.   The UKSC directly addressed this point by requiring examination of the reasons for concealment.  Lord Rodger was satisfied that if a claimant would conceal the fact he is gay in order to avoid persecution, then this is prima facie an indication that there is a threat of persecution.^[2] Hathaway and Pobjoy describe this approach as “riding roughshod over their responsibility to identify the risk of persecutory harm” because refugee law requires an objective analysis of a risk of harm.   Yet at no point does the UKSC suggest that this is a purely subjective test, the judgments of their Lordships clearly require evidence that if the claimant were “out” they would risk persecution.  The objective test is there.  Yet Hathaway and Pobjoy’s approach suggests that concealing your sexual orientation is a simple process that involves easily made modification of behaviour; otherwise they would surely recognise that a life of concealment always carries with it the risk of discovery.   In fact the story of HT is a good example of this.  He managed to live discreetly for many years, before a lack of extreme caution exposed him to his neighbours and to a viscous attack that left him hospitalised and vulnerable to further violence.v If a person is hiding their true identity due to a fear of persecution, if that fear is well-founded, then they are always at risk of exposure and persecution.

Having argued that it is not possible to establish a well founded fear of persecution where the claimant would take steps to avoid such persecution, Hathaway and Pobjoy go on to argue that a case can still be made for refugee status based on the psychological harm that would be suffered as a result of concealment.  They make the case that there is a growing recognition of psychological harm as a ground for establishing persecution and lament the fact that the UKSC did not take the opportunity to advance this line of reasoning.  There is merit in the argument that concealment would result in psychological harm, but what is not clear is why they present this as an alternative to fear of exogenous harm, rather than as in addition to it.  There does not seem to be any reason to present the fear of exogenous and endogenous harm as mutually exclusive.   Why not accept that those who are obliged to conceal their sexual orientation do so because of a threat of violence or arbitrary arrest, but that in addition to the risk of exposure, there is a risk that the person will suffer serious psychological harm which can amount to inhuman or degrading treatment?

The fourth problem with elevating the risk of psychological harm in place of the threat of external harm is that of the evidentiary burden.^[3] While they are right to argue that the doctrinal basis of the judgment needs to be sound to stand the test of time, if legal principles emerge that present evidentiary difficulties there are also dangers that lesbians and gay men would remain without protection.  If an asylum seeker is required to demonstrate that they will suffer psychologically and that suffering will be acute enough to qualify as cruel, inhuman, or degrading treatment, will all those claiming asylum based on their sexual orientation be required to adduce psychiatric evidence, and if so at whose expense?  What of the asylum seeker who is found to be likely to suffer mild depression, but not severe depression?   Would not the test of reasonable tolerability come creeping back in?

Finally, at the heart of the criticisms of the UKSC’s reasoning by both Hathaway and Pobjoy, as well as by Tobin, is the difficulty encountered in trying to fit the rights of LGBTI people into existing international law.  Lesbian and gay equality was not imagined when the Refugee Convention was drafted.  Over the past 40 years, the discourse on human rights has been successfully harnessed by LGBTI people to advance their cause and win the protection of the law in many countries.   However, the question of concealment of discretion would not arise, were there not a history of concealment in the very countries that now offer protection to sexual minorities.  Sexual Orientation claims are “shoe horned” into the convention through the concept of a social group but end up being compared to political opinion or religious belief because gay people are identified by their persecutors through their behaviour.   Lord Rodger’s analogy with race is preferable to political opinion or religious belief as it shifts the emphasis away from the behaviour of the persecuted as a reason for their persecution.

Prejudice against sexual minorities exists, not because of the behaviour of the gay man, but because of a range of political, social and cultural factors.   The UKSC was quite right to roundly dismiss any suggestion that a threat of persecution was no less a threat because such a threat can force a person into hiding which will provide a form of protection, but only by denying fundamental freedoms.

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