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On appeal from: [2009] EWCA Civ 172

Under the Convention on the Status of Refugees, members of particular social groups (which can include groups defined by their sexual orientation) are entitled to asylum where they can establish they would face a well-founded fear of persecution if they returned to their home states. The issue concerned the extent to which those who seek asylum will, if returned to their countries of origin, be able to conceal, or at least be discrete about, characteristics of themselves which give rise to the fear of persecution. The Supreme Court unanimously overturned the Court of Appeal’s decision that it was permissible to return a person if they would conceal their sexuality in order to avoid being persecuted, provided their situation could be regarded as “reasonably tolerable”. To compel gay people to pretend their sexuality does not exist is to deny him his fundamental right to be who he is. Simple discriminatory treatment does not give rise to protection under the Convention, but the Convention does not envisage applicants being returned to their home country “on condition” they take steps to avoid offending their persecutors.

For judgment, please download: [2010] UKSC 31
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII