Gay Hairdressers Can Safely Relocate in Algeria – Court of Appeal holds
The Court of Appeal in YD (Algeria) v Secretary of State for the Home Department  EWCA Civ. 1683, a judgment handed-down last Monday (14 December), dismissed the asylum and human rights appeal of a young gay man from Algeria.
The fact-finding Tribunals below accepted YD, who had arrived as a teenager (15), having been street homeless (twice) in Algeria: firstly, following his relationship with his uncle breaking down (his parents had died in a car crash when YD was six), and secondly when he was 13, after being discovered in bed by the mother of his 14-year-old boyfriend who informed his uncle, who he had been told through a cousin would kill him on return. YD arrived in the UK, via Spain, claiming asylum on the basis of risk on return as he is gay. This narrative was accepted by the First-tier Tribunal, and led to a positive finding of future risk of persecution in his home area (location not published in (unreported) UT determination, or CA judgment).
The Court of Appeal held the Tribunals below had not erred in law in finding the appellant could safely, or not unreasonably relocate in Algeria (location for internal relocation also not published). Lastly, he could easily ‘survive’ as a UK-educated, trained and qualified hairdresser on relocation in Algeria, without disproportionate violations of his article 8 ECHR rights.
Applying the “Dis-creditors’ Charter”, the FTT additionally held, upheld by the appeal court, he would be “voluntarily” discreet on return due to ‘social, cultural and religious reasons only’ (based surely on the earlier accepted past-persecution and future fear in the home area permanently erased from his memory, notwithstanding a lack of evidence this would be possible). In dismissing YD’s appeal, the Court of Appeal reaffirmed the repeated standing of the troubling 2016 Country Guidance case of OO (gay men) Algeria CG  UKUT 65 (IAC) (heard in September 2015). In summarising the ‘test’ gay claims from Algeria would need to meet, Lord Justice Lewis held :
‘It noted the earlier decision stated that where a gay man had to flee his family home to avoid persecution from family members, he would attract no real risk of persecution in his place of relocation because, generally, he would not live as a gay man. It would be a question of whether the individual could show that, due to his individual circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria.’
OO (Algeria), subject to a successful earlier remitted appeal due to lack of application of HJ (Iran) ( UKUT 63(IAC) successfully distinguished in November 2014 in AAT), continues to be held to be impeachable four years later with YD, notwithstanding evidence post-2016 CG designation of state sanctioned persecution of gay men by police forces in Algeria (see IL (unreported February 2019) and Independent Review of SOGIE COI, published 8 December 2020, pages 141-157 of Independent Chief Inspector of Borders and Immigration Thematic review of SOGIE COI, Main report, Annex C).
Whilst finding there could be in some cases a real risk of persecution from family members in the home area, the Upper Tribunal held in OO (Algeria), on relocation, the discrimination encountered would not amount to persecution, specifically in the capital Algiers. As a comparator, the Upper Tribunal in a novel approach of erasing ‘ “gay” identity’ placed heavy reliance on straight (unmarried) couples would be equally unable to be publicly affectionate. Was this a legitimate comparator to consign all into the dark shadows? As the December 2019 CG case SMO, KSP & IM (Article 15(c); identity documents) Iraq CG  UKUT 400 (IAC) held at , the category facing persecution are ‘those not conforming to Islamic mores’. From identifying the non-conformative, refugee status determination can view the claim through the eyes of the potential persecutor i.e. the protection claim through the imputed, rather than actual/express Convention reason. Why does the UK not engage more with this approach? (Cf. SW (lesbians – HJ and HT applied Jamaica  UKUT 251 (IAC) and F v. Hungary (C-473/16) November 2017 Opinion of Advocate General Wahl , fn. 15)?
In a relatively short 20 paragraph determination in the Upper Tribunal proceedings below, the appellant YD advanced five grounds of appeal. Lord Burns, sitting with Upper Tribunal Judge Jackson in November 2017, gave a concise and focussed analysis of the pleaded challenges, including inter alia, the inability of private life between YD and his (former) partner, if he was removed to Algeria would not engage the immigration rules, or ‘very compelling reasons’ claim (noting the relationship had ceased by the time of the First-tier Tribunal hearing).
In reliance on the same five grounds of appeal, the attempt to reintroduce the double-persecution test both before the Upper Tribunal and Court of Appeal falls into the same trap of why the ‘reasonable tolerability discretion test’ was held to give rise to unlawful error by the Supreme Court a decade earlier, in HJ (Iran). The 2010 Supreme Court heldthere is ‘no yardstick’ to measure reasonable tolerability for a straight, let alone a gay person ( and ). Nevertheless, this 2020 Court of Appeal at paragraphs 55 and 63 of YD relied on a lack of any psychiatric evidence to establish this discretion fails to amount to persecution (as previous historic Court of Appeal judgments incorrectly pre-HJ (Iran) – see RG (Colombia), CA (2006)).
The need for endogenic (internal) harm for discretion to amount to persecution and come within refugee protection, was one this author had thought he had seen assigned to the historical past and stringent academic critique (see Opinio Juris Symposium, 2012). This approach potentially and dangerously can lead, as it has in YD, to seeking medical and psychiatric evidence, thereby seeking to medicalise Queer identities with psychiatric harm.
Only a week before the 23/24 November 2020 hearing of YD before the England and Wales Court of Appeal, the European Court of Human Rights stepped out of this potentially toxic arena, not accepting the same point (‘coerced concealment’) made by the intervenors (one UK-based) , in its 17 November 2020 judgment in B and C v. Switzerland (gay man from Gambia in a same-sex relationship with a Swiss national (deceased prior to judgment)). The Strasbourg Court held, in line with trite asylum criteria, analysis needs to focus on risk on return, and for the first time in the Court’s history, allowing an appeal on article 3 ECHR grounds (-).
The straight couple comparator leads to confusion, where in fact there is an opportunity to engage with protection claims arising from Convention reason overlap. In the seminal Kylie concert paragraph 78 in HJ (Iran), Lord Rodger playfully drew on contemporary examples to illustrate how we are all free to express our identities in the manner we so wish, to ‘live freely and openly without fear of persecution’, whether we are black, gay or a son of a former political dictator (). In a different descriptive paragraph 78, he gave the example of the ability to enjoy ‘mild flirtations’ without persecution. The lacuna in the Algerian context is the alignment of the straight and gay comparator to public affection, and what form of serious harm would occur if affection (a constituent part of the Yogyakartadefinition (rather than sexual conduct) was expressed in public? There is the opportunity to engage with the overlap in Convention reasons, with religion and (non-heterosexual pre-marital) sexual identity, as the targeting by the potential persecutor is on the grounds of religion and pre-marital sexual identity.
However, as a ‘closeted’ gay man, unmarried to a woman, what would be the conduct he would need to engage in (contrary to his protected immutable characteristic), in order not to be identified by the potential persecutor (‘the Silence Fallacy’ LC(Albania) [52(vii)])? Forced marriage is accepted by the UK Courts as amounting to persecution (LH and IP ), and since November 2009, the SSHD has accepted cumulative measures/violations of non-article 3 ECHR rights may be sufficiently serious to amount to persecution (Article 9 (1) (b) of the 2004 Minimum Standards Qualification Directive; OO (Sudan) and JM (Uganda) v SSHD  EWCA Civ. 1432 ; page 16 of August 2016 API on Sexual-orientation asylum claims). This is where UNHCR’s submissions as intervenors in YD with respect to cumulative human rights violations give a glimmer of hope to the judgment, providing a baton for future litigators to run with.
In endorsing Lord Hope’s guidelines at paragraph 35 in HJ (Iran) refusing refugee claims where it is held ‘discretion’ will only be for ‘social, religious and cultural reasons’, the Court of Appeal are applying the ‘cultural relativism’ approach outlined by Pill LJ at paragraph 32 of the February 2009 Court of Appeal judgment in HJ (Iran) - one Lord Walker was at great pains to disavow in his judgment in the Supreme Court (-).
The latter two categories of ‘religious and cultural reasons’ from Lord Hope are omitted from the binding guidance of Lord Rodger at paragraph 82 of HJ (Iran), the Lord Rodger being termed as ‘binding guidance’, approved of by Lord Walker, Lord Collins SCJJ and Lord Dyson MR, but noting Lord Hope guidance followed by the CA in 2012 in HL (Malaysia) and the UT in 2019 with BF (Albania). There is a clear normative gulf in the approach to human rights standards with the Supreme Court highlighting the need to apply international human rights standards– not a deference to national cultural, religious and social standards – without which persecution would have no foothold.
This generic internal relocation default in OO (Algeria) was with respect to internal relocation to Algiers. Strangely, the identity of the home area and place of internal relocation are omitted from the determinations of both the Upper Tribunal and the Court of Appeal. The appellant has to discharge the burden on proof to address internal relocation on appeal, only where the respondent SSHD has identified the location (see MB (Internal relocation – burden of proof) Albania UKUT 392 (IAC)  – Article 8(1) of the 2004 MSQD). If the SSHD had never identified the internal relocation alternative, then the appeal should have been allowed, following the positive risk assessment in the home area.
Luckily, for those litigating appeals on the basis of sexual or gender identity or expression in Algeria, OO (Algeria) can now be departed from on ‘very strong grounds, supported by cogent evidence’ (SG (Iraq) ). In Algiers itself, a bisexual medical student was murdered in February 2019, rendering the capital no longer safe for those not conforming to Islamic mores (see reports cited in ICI report, Annex C, pages 154-155). Successive US State Department reports have highlighted state persecution from the police in Algeria (see Annex C, pages 149-152, and on 3 September, the police arrested 35 men and 9 women using the anti-sodomy laws (rather than the COVID laws), 2 men were sentenced and 42 were given suspended sentences for ‘appearing’ to attend a gay wedding.
Or, on the other hand, shattering the framework for refugee protection, following the changes to the rules from 31 December 2020, the SSHD will certify such claims where travel has been through ‘safe countries’ under the new (10 December 2020) paragraph 345A, and only a handful of claims would need to be determined, even fewer with a proposed new test for granting permission by the Court of Appeal -‘for reasons of exceptional public interest’ (Consultation deadline 11 January 2021). Calling ALL Activist Lawyers …. 2021 – Legal Swords and Shields – we must overcome!
An edited version of this Case Note is published on the Freemovement website.
DR S CHELVAN © 2020
33 BEDFORD ROW
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