Rt. Hon. Sir Richard Buxton Responds to Jenni Millbank & Guglielmo Verdirame

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

Rt. Hon. Sir Richard Buxton is formerly Lord Justice of Appeal, Court of Appeal for England & Wales.

The right of lesbians and gay men to live freely, openly, and on equal terms is a noble – indeed in the view of liberal western society – an obvious and unavoidable aspiration.  Nor, to adapt the language of Millbank’s title, could the enforcement of that right be bad law in the national jurisprudence of any such society.   But we are concerned in this symposium with a less trite and obvious question: the extent to which that principle can be enforced through the international law of refugee protection.  As Verdirame importantly observes, protections imposed by that law imply criticism of the national law of the state of origin.  Until recently, therefore, international protection was limited to cases where a member of a recognised PSG (to adopt Millbank’s notation) was threatened in the state of origin, and by reason of her membership of the PSG, with persecution: defined as harm of an intensity or duration that the person persecuted could not reasonably be expected to tolerate.

It was that law that the English Court of Appeal applied in its decisions in Z v. Secretary of State and J v. Secretary of State, which are heavily criticized in this symposium.  A member of a PSG (in casu, a person of gay orientation) would be entitled to international protection if the steps that she had to take to avoid exogenous persecution would be sufficiently onerous in moral and emotional terms as to retain her in a condition of, albeit now endogenous, persecution.  The English Supreme Court in HJ(Iran) rejected that approach, and in so doing greatly widened the protection afforded by international law, at least as that law is understood in England, to persons of gay orientation and, by necessary implication, to members of any other PSG.

As the present writer explains in his original contribution to the symposium, that revolution was achieved by accepting the submission of the United High Commissioner for Refugees (who, regrettably, is not providing his wisdom to this symposium) that the basis of international protection was not, as hitherto understood, to save the refugee from persecution (as defined above) by reason of her membership of a PSG.   Rather, international refugee law protected the status of the members of any PSG that it recognised.   That meant that any interference with the characteristic behaviour of a member of a PSG, an attack on claimant’s status as such a member, would mandate international protection, even if the interference was not intolerable in the persecutory sense.

That has at least two implications for the issues raised in Panel 3.

First, Verdirame points out that much of what is now protected are not harm-inducing or authenticity-threatening modifications to social conduct, but merely inconveniences required in order to live in society.   That, with respect, is a sensible observation about the realities of life, but it is entirely irrelevant in the law as laid down by the English Supreme Court.  Any derogation in the country of origin from the status of a member of a PSG, that is, any limitation on the conduct characteristic of members of that PSG, obliges the host country to offer asylum.

Second, therefore, that law cannot be operated without determining what is the conduct characteristic of the PSG whose status the host country is obliged to protect.   In some cases, for instance in relation to religious observation, the characteristic conduct of members of the PSG in issue may be relatively easy to determine.  But, as Millbank, with respect, correctly points out, it would be impoverishing and unreal to limit the protected status of a person of gay orientation to sexual acts.   That status extends to the whole range of behaviour and attitudes, “sexual” or otherwise, that characterises the gay community.   The Supreme Court went some way towards identifying that range of behaviour by its exemplification of attending Kylie concerts, drinking exotically coloured cocktails, and talking about boys.   That passage has been seen as difficult, even embarrassing: Millbank, for example, finds it necessary to devote a whole separate section of her paper to an attempt to explain it.   But the passage is not accidental, but essential to the Supreme Court’s analysis.  Once the Court had decided that no aspect of the status of a gay person could be interfered with, it had to rule on what that status included.  The criticism is, rather, not that the passage is inappropriate but that it is inadequate for its purpose, through its very incomplete account of gay characteristics and its male-centric assumption that lesbians and transpersons do not need to be considered.

Courts that adopt the view of the English Supreme Court in HJ(Iran) with regard to the protection of the status of members of a PSG will, therefore, have to do a lot of work in defining the limits of that status, PSG by PSG.  That analysis is not likely to occur at authoritative appellate level in the United Kingdom, since (on the assumption, now disturbed by HJ(Iran), that refugee law was fairly well settled) rules have been  introduced that make it very difficult to bring appeals from the findings of immigration tribunals.  Consequently it is courts in other jurisdictions, if they adopt the benefit of the general approach of HJ(Iran),  that will also have to bear the burden of working out the limits and practical application of that approach.