An important legal ruling has clarified refugee law and should provide better protection for those claiming asylum on the basis of their sexuality.

On 7 July, the Supreme Court, the UK’s highest court, ruled that gays who are forced to conceal their sexuality to avoid being persecuted in their home countries should be recognised as refugees. The ruling, which follows similar rulings in the Australian, Canadian and New Zealand courts, corrects a long-standing injustice and will be welcomed by refugee and gay rights groups.

The case was brought by two gay men, HJ, a 40-year-old from Iran who claimed asylum in the UK in 2001, and HT, a 36-year-old from Cameroon, who fled after his three-year homosexual relationship was discovered by neighbours. As the Lords noted, in Iran, people have been hanged for being gay, while in Cameroon, the sanctions for homosexuality include up to five years’ imprisonment, and although prosecutions are rare, informal violence and harassment are common. But the men’s asylum claims were rejected on the basis that they could be expected to live ‘discreetly’ and so would not be persecuted on return. On appeal, the Asylum and Immigration Tribunal agreed, and so did the Court of Appeal.

The Supreme Court said that it was fundamentally wrong to expect people to conceal their sexuality – or their religion or race – in order to avoid persecution. Several Law Lords used the analogy of Anne Frank, saying that on the interpretation of the Home Office, Anne Frank would have been sent back to hide in her attic, on the basis that the Nazis were unlikely to find her or persecute her there.

But their ruling does not mean that any gay person coming from a country where homosexuality is punished will be granted refugee status. The Lords said it all depended on how the person was likely to behave if returned, and how the authorities would react. If the person was likely to conceal his/her sexuality anyway, because of being a very private person, and not because of fear of persecution, s/he would not be a refugee. But if s/he would hide her sexuality partly for fear of what would happen if s/he was open about it, s/he would qualify for refugee status.

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Download a copy of the judgment (pdf file 200kb)