'Reasonable tolerability' test refuted (Supreme Court, United Kingdom)

7 July 2010, London. The Supreme Court (Ref: UKSC  31) held that the 'reasonable tolerability' test applied by the Court of Appeal is contrary to the Convention relating to the Status of Refugees. A homosexual could not be expected to suppress his identity in a country where homosexuality resulted in prosecution, whether or not he could reasonably tolerate this suppression.

Applicants (HJ and HT) are homosexual men, from Iran and Cameroon, respectively, seeking asylum in the UK on the basis that they would face the risk of persecution on grounds of sexual orientation if returned to their home countries.

 In both Iran and Cameroon it is a criminal offence (punishable by death in Iran) for consenting adults to indulge in homosexual acts.

According to the Convention relating to the Status of Refugees members of particular social groups are entitled to asylum in states parties to this Convention, if they can establish that they would face a well-founded fear of persecution if returned to their home country.

The Court of Appeal found that, if returned to their respective home countries, HJ and HT would conceal their sexual orientation in order to avoid the risk of being persecuted. According to the same Court of Appeal, as HJ and HT would hide their sexuality they would not come to the attention of the State authorities and so would not be at risk of persecution. Thus the Court of Appeal concluded that neither had a well-founded fear of persecution that entitled him to protection under the Convention. According to the Court of Appeal it was permissible for a State party to the Convention to refuse asylum to a homosexual person who, if returned to their home country, would deny their identity and conceal their sexuality in order to avoid being persecuted, provided that the homosexual person's situation could be regarded as 'reasonably tolerable'. Only if the hardship which would be suffered was deemed to exceed this threshold would the applicant be entitled to protection under the Convention.

The Supreme Court ruled that to compel a homosexual person to pretend that his sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. As regards the Convention, this confers the right to asylum in order to prevent a person from suffering persecution, including death, torture or imprisonment. Sanctioning the return of the applicant 'on condition' that they avoid offending their persecutors, was not acceptable to the Supreme Court : persecution did not cease to be persecution because those persecuted could eliminate the harm by taking evasive action.

To read the full text of the Supreme Court judgement click here