Upper Tribunal (Immigration and asylum chamber), 2016-01-26, [2016] UKUT 65 (IAC) (OO (Gay Men) (CG))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Southern, Deputy Upper Tribunal Judge Kamara |
| Status | Reported |
| Date | 26 January 2016 |
| Published date | 04 February 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 24 September 2015 |
| Subject Matter | Gay Men) (CG |
| Appeal Number | [2016] UKUT 65 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
OO (Gay Men) Algeria CG [2016] UKUT 00065 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 23 and 24 September 2015 |
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………………………………… |
Before
Upper Tribunal Judge Southern
Deputy Upper Tribunal Judge Kamara
Between
OO
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms R. Chapman of counsel (assisted by Ms U. Dirie), instructed by Luqmani Thompson & Partners, solicitors
For the Respondent: Mr S. Singh, counsel instructed by the Government Legal Department.
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Although the Algerian Criminal Code makes homosexual behaviour unlawful, the authorities do not seek to prosecute gay men and there is no real risk of prosecution, even when the authorities become aware of such behaviour. In the very few cases where there has been a prosecution for homosexual behaviour, there has been some other feature that has given rise to the prosecution. The state does not actively seek out gay men in order to take any form of action against them, either by means of prosecution or by subjecting gay men to other forms of persecutory ill-treatment.
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Sharia law is not applied against gay men in Algeria. The criminal law is entirely secular and discloses no manifestation, at all, of Sharia law in its application.
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The only risk of ill-treatment at a level to become persecution likely to be encountered by a gay man in Algeria is at the hands of his own family, after they have discovered that he is gay. There is no reliable evidence such as to establish that a gay man, identified as such, faces a real risk of persecutory ill-treatment from persons outside his own family.
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Where a gay man remains living with his family to whom he has disclosed his sexual orientation in circumstances where they are prepared to tolerate that, his decision to live discreetly and to conceal his homosexuality outside the family home is not taken to avoid persecution but to avoid shame or disrespect being brought upon his family. That means that he has chosen to live discreetly, not to avoid persecution but for reasons that do not give rise to a right to international protection.
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Where a gay man has to flee his family home to avoid persecution from family members, in his place of relocation he will attract no real risk of persecution because, generally, he will not live openly as a gay man. As the evidence does not establish that he will face a real risk of persecution if subsequently suspected to be a gay man, his decision to live discreetly and to conceal his sexual orientation is driven by respect for social mores and a desire to avoid attracting disapproval of a type that falls well below the threshold of persecution. Quite apart from that, an Algerian man who has a settled preference for same sex relationships may well continue to entertain doubts as to his sexuality and not to regard himself as a gay man, in any event.
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For these reasons, a gay man from Algeria will be entitled to be recognised as a refugee only if he shows that, due to his personal circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria to avoid persecution from family members, or because he has a particular characteristics that might, unusually and contrary to what is generally to be expected, give rise to a risk of attracting disapproval at the highest level of the possible range of adverse responses from those seeking to express their disapproval of the fact of his sexual orientation.
Decision
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In this determination the Upper Tribunal addresses the current situation in Algeria in order to determine the appellant’s appeal and to give country guidance upon the risks faced in that country by gay men.
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We should make clear, at the outset, that the Tribunal has made an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the effect of which is that nothing is to be published that may lead to the identification of the appellant.
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The appellant, who was born in 1995, left Algeria in 2008 and, having spent just over a year and a half in France then travelled to the United Kingdom, arriving concealed in the back of a lorry in mid 2010. He claimed asylum on the basis of facing a real risk of persecution in Algeria as a gay or bisexual man. His appeal was dismissed but, permission to appeal having been granted, his claim was considered afresh by the Upper Tribunal which resulted in the country guidance decision OO (gay men: risk) Algeria [2013] UKUT 00063 (IAC). The appeal now comes before the Upper Tribunal once again as a consequence of an order of the Court of Appeal, made with the consent of the parties on 19 January 2015 in which it was said that:
“The appeal is hereby allowed to the extent that the decision of the Upper Tribunal of 25 March 2013 in this appeal be set aside and the appeal be remitted to the Upper Tribunal (IAC) for the issues of the risk to gay men in Algeria generally and whether the Appellant’s claim to be bisexual is credible to be heard by a differently constituted Tribunal.”
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Therefore, this decision replaces the country guidance presently in place.
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The Tribunal heard oral evidence from the appellant and from one of the two expert witnesses, Dr David Seddon. The Tribunal has had regard to written evidence from another country expert, Ms Alison Pargeter, and received oral and written evidence from Dr Ludovic Zahed who, although not presented as an expert witness, is someone who is well placed to express an informed view upon the matters we must consider, for the reasons we give below. The Tribunal has also had regard to a wide range of documentary evidence which is identified in the annex to this decision.
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In support of his factual account of his experiences in Algeria and his claim to be a bisexual man, both of which are disputed by the respondent, the appellant relies upon a further range of evidence, including the expert evidence of Dr David Bell, a consultant psychiatrist who has examined issues concerning the appellant’s mental health and, as will be relevant to our assessment of his credibility, how that impacts upon his ability to give oral evidence effectively and reliably.
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In this determination we consider first the question of risk faced by gay men generally in Algeria before addressing the separate question of the appellant’s own credibility and his claim to be a refugee.
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In advancing her final submissions, Ms Chapman confirmed that the appellant does not pursue in these proceedings any claim under article 8 of the ECHR and so, although there is reference to that in her skeleton argument, we need concern ourselves only with the appellant’s protection claim.
The Legal Framework
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Article 1A(2) of the Geneva Convention provides that a refugee is a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”
In this appeal the Convention reason in play is the appellant’s asserted membership of a particular social group, that being gay or bisexual men in Algeria. It is uncontroversial that gay and bisexual men in Algeria are capable of constituting a particular social group and so the question is whether, as a consequence, the appellant would face a well-founded fear of persecution on that account.
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Article 9 of the Qualification Directive provides:
Article 9
Acts of persecution
1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory...
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