S, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE NEWMAN: This is a claim for judicial review in connection with a decision of the Immigration Appeal Tribunal, refusing the claimant leave to appeal against a decision of a Special Adjudicator who had heard his human rights claims. The claimant is a national of the Federal Republic of Yugoslavia (Kosovo), who arrived in the United Kingdom on 5 January 2000. He was then aged 17. He claimed asylum two days later on 7 January 2000. His asylum application was refused on 24 September 2000. He appealed. The asylum appeal was heard by an Adjudicator, Mr Tipping, on 28 November 2000. Prior to the appeal, the solicitors then acting for the claimant submitted a statement to the Adjudicator as follows:

The Adjudicator in the asylum appeal dismissed the appeal and in respect of the claimant's fear of persecution on the grounds of his homosexuality, stated this:

In March 2001, solicitors wrote to the Home Office stating that his removal from the United Kingdom would constitute a breach of the United Kingdom's obligations under Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedom (ECHR). It is that claim, then advanced, which is now followed through to this court. It was rejected by the Secretary of State and appealed and came on for appeal before a Special Adjudicator on 8 May 2002. The Special Adjudicator came to the following conclusions. First, she was far from satisfied as to the applicant's credibility in choosing to raise the allegation of homosexuality, at what she regarded as essentially the last minute in the asylum hearing. As a result, she was not satisfied that he is a homosexual. Secondly, that although he had, whilst in the United Kingdom, established a private life, in particular a private life centred upon his cousin with whom he lived, but with others too with whom he had developed friendships, and for that reason Article 8 of the European Convention was engaged, the interference was lawful under Article 8(2) because it was proportionate and justified, it being for securing the objective of maintaining effective immigration control. Thirdly, she was not satisfied that there was any objective material which indicated that homosexuals as a group are at risk of persecution in Kosovo. Further, even if the appellant was right and that he would suffer a degree of social ostracism and stigma, she was not satisfied that this amounted to or surmounted the high threshold for establishing inhuman or degrading treatment under Article 3 of the Convention.

In addition, in considering article 8, the Special Adjudicator went on to add:

Before turning to the submissions advanced by Miss Chapman for the claimant, it will be convenient to set out the nature of the documentary material which was placed before the Special Adjudicator. There was, of course, the statement of the claimant and there were two statements from two friends of his. There was a psychiatric report by Professor Green which was dated 8 February 2002, and a letter from Melissa Stone of UNMIK dated 25 September 2001, and a report from another lady, Rachel Wareham. In addition, there was a determination by another Adjudicator where an appeal of a homosexual from Kosovo had been allowed, and the Home Office had submitted to the Adjudicator the CIPU report for the federal Public of Yugoslavia and another decision, a Tribunal decision in a case called Krasniqi, and other UNHCR material. 

Miss Chapman challenged the legality of the conclusion to which the Adjudicator had come, namely that the claimant is not a homosexual. She pointed out in particular that the Special Adjudicator would appear to have placed far too much weight on the so-called late claim to homosexuality and paid insufficient attention to Professor Green's psychiatric report which supported his claim to be a homosexual. In my judgment, there is something in each of those criticisms. I would regard the late submission of a declaration as calling for an inquiry, but not necessarily a matter having regard to the sensitivities which would obviously be involved, which firmly pointed in the particular direction to which the Special Adjudicator came. There is something to be said for the argument in connection with Professor Green, but again, more in favour of the approach of the Special Adjudicator. It can be said that Professor Green really did nothing to demonstrate that he had used his considerable expertise in dealing with homosexual and gay issues. He did not demonstrate any particular expertise in accepting, as he did, the claimant's account that he was a homosexual. The evidence did not contain anything by way of an objective report or examination which would support the claim. That said, it also seems to me that the approach of the Special Adjudicator was reflected, in particular, in paragraph 48, which suggests an inappropriate approach to the issue, where she states:

I have no doubt that there will arise certain cases in which a fact-finder can properly come to the conclusion that somebody is not a homosexual, but it seems to me that there will be a number of cases, I would regard this as one, where the proper approach or the more sensible approach to the question, having regard to the fact that one is not dealing with an absolute state of affairs or diagnostic condition, is the one adopted by the Secretary of State in this case and by the Adjudicator in the asylum appeal, namely to deal with the matter upon the assumption that the claimant is a person of homosexual orientation. For that reason I proceed with this case upon that assumption. One can dispose of the historic position so far as the claim under article 8(2) is concerned, to this extent: that Miss Chapman has not advanced in this court a claim based upon an interference with private life which depends upon the establishment of private life here. She has confined herself to an argument that the claimant's removal to Kosovo will give rise to a breach of Article 8. The law is a matter which can be summarised by reference to two authorities. It gave rise to no real difference of opinion or submissions between counsel. It is fair to say that so far as reliance upon the Convention other than Article 3 goes, it could be said to be at least under consideration for potential development; but, in my judgment, as it presently stands it is sufficiently well-established, subject to any particular facts which might arise in any particular case, this being a fact sensitive jurisdiction so far as the human rights claims are concerned, and where the court recognises a particular duty to be astute to the interests of those who may be at risk of being dealt with in a way which is contrary to their human rights.

The position is, as I see it, that the protection against removal which the European Convention can presently provide is contained in two decisions, and I would simply respectfully adopt the legal analysis of the position reflected in the two Court of Appeal decisions of SSHD v Z; M & A v SSHD (2002) EWCA Civ 952, and the combined cases of Ullah & Do (2002) EWCA Civ 1856. Z was before the Court of Appeal in July 2002, Ullah, in the Court of Appeal in December of 2002. The strong pointer therefore, as I see it, to the correct analysis derived from those cases is that a substantial risk of conduct falling short of Article 3 ill-treatment will not present an impediment to removal from the United Kingdom. That said, this court will pay particular attention to the facts of this particular case.

Miss Chapman's argument involved the following points. First, that the Special Adjudicator had carried out a mistaken and inadequate appraisal of the objective material, in particular being unduly influenced by the decision of the Tribunal in the case of Krasniqi. She failed to consider the effect of the evidence which was before her, in particular the evidence of Melissa Stone and Rachel Wareham. Secondly, developing the argument, she submitted that Melissa Stone's evidence supported the following conclusions: one, that there are no mechanisms presently in Kosovo that provide for the intake of discrimination complaints on the basis of sexual orientation, nor any specific law banning discrimination on this basis. This follows from the larger content of the law enforcement and human rights focus in Kosovo being based on ethnic conflict. Secondly, that there was no data about discrimination in Kosovo on the basis of sexual orientation, and none was likely to be forthcoming from UNHCR because human rights violations based on sexual orientation are not the field of expertise of UNHCR. Thirdly, that data collected by the Equal Opportunity Bureau shows it would not be unlikely for the unmarried Kosovo homosexual population to be discriminated against on an everyday basis, as marital and family status are significant social markers. Fourthly, that discrimination based on social perceptions of the unacceptable, including sexual orientation, is widespread in the Balkan region and that reports from international human rights organisations in other parts of the Balkan regions indicate that the majority of the population with alternative sexual orientations live in secrecy and fear of job loss, social ostracism and hate-based violence. As to this evidence, it is fair to say that the determination and reasons are brief so far as Melissa Stone's material is concerned. The Special Adjudicator stated:

Then the Special Adjudicator went on to consider Rachel Wareham's report. Because of the sparsity of the consideration given by the Special Adjudicator to Melissa Stone's material, I have obviously reflected upon how far it can be said to be significant that she simply identified the non-existence of data as that which was really most material. In my judgment, it was the core or central thrust of the material from Melissa Stone. She did, nevertheless, express other views, but in so far as for example she expressed any view in relation to homophobic violence, it was not based on anything other than the absence of data. The prevailing significance which has carried through to the argument in this court is the absence of data. Thus, whilst another Special Adjudicator might have been a little more expansive, I do not regard the Adjudicator as having missed the essential point of the evidence. I turn next to whether she failed to give proper weight to Rachel Wareham's material. She said as to that:

I have looked carefully at the material from Rachel Wareham. It is, in essence, an article headed, "An analysis of the risks Albanian gay men face in Kosovo". It ends with this conclusion:

I do not regard that conclusion, expressed in those very firm tones, as being one which is borne out by the content of the article. In my view, the article, without going into detail, can fairly be described as an exploratory article. It contains no specific statistics at all in relation to a conclusion that gay men have the expectation expressed in the conclusion. It contains a number of ideas and possibilities in the face of the considerable uncertainty which there may be about the statistical or data base for the treatment of homosexuals. But in my judgment, putting aside the reservations which the Special Adjudicator had, which I would not be minded to regard either as unfair or lacking in support, but nevertheless not at the heart of the issue, it seems to me the material in the article simply does not establish to the required standard of proof evidence which justifies the conclusion in the last paragraph to which I have drawn attention. It seems to me that it comprises a general conclusion which anyone might hold in the face of what is said in the article. That brings me to the position, as it emerged before this court, because opportunity had been taken to attempt to tighten up on the rather uncertain nature of the expert objective views of the position in Kosovo by the introduction, for the purposes of this hearing, of another report from Mr Alex Standish. No permission was sought prior to this hearing for the introduction at this stage of a report which only came under cover of a statement from the claimant's solicitors dated a few days ago. But after discussion in the course of argument, the court, encouraged by both counsel, formed the view that rather than excluding reference to this new material now, which would probably only invite a further human rights claim or a request for a review of the human rights issue in the light of its existence, a pragmatic approach was the better approach to adopt in order to deal with it now, if possible. In the event that it was the court's view that it contained probative material sufficient to give rise to an arguable case for relief, it would be the better course for the matter to be remitted to a fact-finder, but in the event that it added insufficient or no weight to the arguments which were already available, or merely served to amplify the position, which had been adopted by the Special Adjudicator and to that extent of course, the Tribunal, it was there to be considered. In my judgment, the report bears out the following, and points to the position being as follows. Mr Standish is currently holding the post of Chairman of the Board at the Centre for Research into Post-Communist Economies, which is an academic research institute, and Federal Yugoslavia is within the ambit of his area for research. He states that since August 2002, he has been in regular contact with a group of foreign human rights activists from a range of international organisations active in Kosovo with a view to conducting research for publication on the position of gays and lesbians in Kosovo. His report, paragraph 18, states:

Indeed that is why he is engaged on his research exercise. His research, he discloses, has already given rise to some male homosexuals agreeing to participate in his research and to disclose their orientation. Secondly, he turns to the legal position, which he helpfully informs the court is that, despite amendment to the law in the Federal Republic in 1994 so as to repeal homosexual acts as being criminal offences, and which set male homosexual conduct by consent by those of 18 or more as lawful, the position in Kosovo is not so straightforward, because the Kosovo Albanian political parties have not yet accepted the Republic amendments. He made enquiries about the position with UNMIK in Pristina, the legal affairs department, and he informed the court that the maximum penalty under the law as unrepealed is imprisonment for 12 months. Thus he points out that the de jure position is that it is still unlawful subject to that penalty, but he draws to the attention of the court that the de facto position is that there have been very few cases of prosecution since 1994, and none since 1999.

Further, having regard to the administration and control of UNMIK in Kosovo, it seems that, if not by constitutional formality, at least by some practical recognition, the impact of the ECHR is likely to be felt. It being established by Strasbourg jurisprudence that criminalisation of homosexual activity between consenting adults is a violation of Article 8, he expresses the view that any conviction under the existing Kosovo penal code will ultimately prove unlawful. Thirdly, by way of significant point, he opines that it is an open issue for debate, therefore, as to what the law will be, but it can be said by way of comment that it looks as though it is on the cards there will be change. He draws attention to the CIPU report of 2002 which observes that:

At the next numbered point he refers to the difficulty in obtaining accurate data on what remains a highly controversial topic in Kosovo. Next numbered point: he expresses a conclusion that it is doubtful that the local police would be active in investigating assaults against individuals, and he draws attention to the religious element in the judgment of the population so far as homosexuality is concerned, and the impact of religious influences. Next numbered point, he draws attention to the non-existence of social support for homosexuals and gays. Next numbered point, he does draw attention to some outspoken statements by at least one homosexual which is, in part, in these terms (a report of Robert Mizzi dated 23 August 2002):

Then a series of other conclusions and final further numbered facts. He therefore would not rule out the harassment of male homosexuals by Kosovo police either by using the Penal Code or, as I understand it, not furthering the prosecution. He concludes that an ethnic Albanian homosexual is likely to be at a very significant disadvantage as a consequence of the prevailing legal situation. Whilst this may, of course, change at some future date, I do not believe that this could be taken for granted. Then, somewhat going over the same ground, but for the purposes of completeness I ought to record that he concludes that the main risks facing a male homosexual in Kosovo would include active discrimination, exclusion from society and employment, possible violence, and a denial of basic legal protection. He then goes on to express the conclusion about lack of support for any prosecution, should there be the need for prosecution. Then in reference to no social services or gay and lesbian organisations, he takes the view: "likely to suffer extreme hardship and social isolation", and, if open about homosexuality, he concludes, "can lead to continual verbal harassment on the streets as well as severe social isolation".

Those, therefore, are the conclusions of Mr Standish, presented to this court, to be weighed, as I indicated earlier, for their probative effect.

1. I have already indicated that in my judgment the Special Adjudicator's treatment of the objective material in this instance, although not of a character which escapes adverse comment, nevertheless, in my judgment, really cannot be regarded as being so inadequate as in itself to justify any form of remission. But rather than being dislodged from that viewpoint, I am confirmed in that viewpoint by the material which I have received from Mr Standish's expert report. It seems to me that, as it was before the Adjudicator and the Tribunal, so it is before this court, that essentially there is no data which establishes that homophobia in Kosovo does give rise to a substantial risk of torture or violence or cruel or inhuman or degrading treatment on the grounds of homosexuality. The recorded position, by reference to Mr Standish's report does, confirm that which I would regard as a conclusion the court could come to without expert evidence. It would be perhaps wrong to say it was obvious, but the extent to which the court can take judicial notice of the probabilities is strong. Kosovo being a country following, to a large extent, Muslim religion, Muslim traditions, with significant rural population, an absence of, one might say, cosmopolitan and wider influences from cultural sources leading to changes in social laws, is still likely to adhere to the strong family ties and traditional values and laws which are likely to give rise to expressions of very conservative views on homosexual activity, and are likely to give rise to anti-homosexual views and opinions. I have little doubt that in such a climate the strong sense of a potential for victimisation by ostracism and stigmatism would likely to be in the mind of a practising homosexual or person of homosexual orientation. But, in my judgment, although she was not very expansive about it, that is, in essence, the conclusion to which the Special Adjudicator came, one might say without the benefit of Mr Standish's report. Undoubtedly the report puts some flesh on the bare skeletal position, but in one sense, as pointed out by Miss Giovannetti, it really turns more firmly towards a conclusion that even in respect of somebody who has publicly decided to campaign for outing himself and the issues of homosexuality, the identified risk to which Mr Standish refers is "continual verbal harassment on the streets". I should not be misunderstood, I do not underestimate the unpleasantness and sense of isolation to which this could give rise, and it is manifestly not acceptable behaviour. It is conduct which could occur, but the Convention, in my judgment, is not concerned to guarantee an individual from harassment of that sort. This is a Convention which is concerned with human rights and fundamental freedoms.

In my judgment, the material which I have seen says nothing to suggest that it is impossible for a person of homosexual orientation to lead a private life where their sexual orientation can be fulfilled. If indeed the process of declaration by those of such orientation continues, as has occurred in the United Kingdom and elsewhere, so the population will be educated into greater understanding and tolerance. In these matters it is for societies, according to their own traditions and their own laws, to move in a way in which the population carries responsibility and plays its part. It seems that the matter is already one for debate, even insofar as there is an issue as to whether the federal amendments should be adopted. The very fact that it is up for debate might not be as satisfactory as the offence being repealed, but it is a sign of the shift which could occur. Further, one should not put out of consideration the fact that any shift will be taken against the backdrop of the influence of the ECHR to which I have already referred. Thus, I do not consider that the new evidence undermines the Special Adjudicator's decision at all, but rather confirms the correctness of her very briefly stated conclusions.

2. Miss Giovannetti, in my judgment, rightly submitted that the burden is on the claimant to establish substantial grounds for believing that the claimant faces a real risk of torture or cruel or inhuman or degrading treatment. I ought to say and emphasise "punishment". In respect of the latter, it is material to point out that even in the unsatisfactory event that the offence remains on the statute book, and is contrary to recent practice, enforced, whilst it gives rise to a maximum sentence of one year's imprisonment, according to the threshold consideration with which this court is involved, and without being taken to approve of any form of penal sanction for such behaviour or conduct, it falls short of that which engages Article 3.

Thirdly, I will deal with various matters under the heading of "sufficiency of protection". It has to be said that this court has not before it, and nor did the Special Adjudicator have before her, a body of evidence which suggested that homosexuals as a group are sought out on any organised basis by any people, and if so sought out, subjected then to violence and intimidation. That is significant because, as is well established, that is what the court is most astute to investigate in circumstances where Article 3 is in play.

The ECHR cannot be invoked as a guarantee against the risk that prejudice will occur, either by way of isolated acts of violent homophobia, or, in the event that any such act did occur, the random and isolated acts of police being inactive in the investigation of such matters. The law in Kosovo certainly gives no licence to anyone to harass and attack and assault homosexuals. Of course the court recognises that so far as an offence once committed might give rise to the need for an investigation of a motive, a homosexual is at risk of having to declare his position or at least be open to the suggestions that that was the underlying motive for the offence. But that being recognised, it must also be recognised that without the motive and without the need for declaration it is not suggested that there is not the opportunity for the investigation and proper prosecution of offences of violence committed against homosexuals, or one might more accurately say, persons who as a matter of fact are homosexuals. The evidence, in my judgment, discloses, and the Special Adjudicator and the tribunal were, in my judgment, correct in so concluding, that there are changes which can take place in social development, and whilst no advances comparable to the position in the United Kingdom have been achieved, the position in Kosovo, whilst it might not compare favourably, does not establish a threshold of risk within Article 3 of the Convention. Thus I am satisfied that the decision was correct and is confirmed by the material which this court has seen and accepted. That there will be social consequences I have no doubt, but they will fall far short of physical ill-treatment, which has not been established as a substantial risk. Social consequences will only occur if the claimant's sexual orientation becomes public. I have no doubt that the traditional values of structure of family life and the like will give rise to particular tensions and difficulties, but such difficulties as they might arise, in my judgment, go nowhere near achieving a threshold of fact to establish an Article 3 claim.

Finally, as to Article 8, I would add that if the starting point in law were different after consideration and judgment from the House of Lords, changing the law so as to allow for some restraint upon removal, as best one can see on the lines foreshadowed in the argument advanced to the Court of Appeal in the case of Z, then as recorded at page 7 of the judgment under the heading, "General considerations Article 8", the submission had been that there was a subset of rights under Article 8 which were "flagrant abuses of serious aspects of the Convention rights", which could give rise to the engagement of protection against removal without regard to Article 8(2) considerations. In my judgment, I see no factual basis for any such concept, even if accepted, coming into play on the facts of this case. Further, I can see no material conflict between the decisions of the Court of Appeal in Z and the decision in Ullah.

Finally, I should say that some criticism was made of the approach of the Tribunal towards certain letters which had been sent in support of an application for review, and in particular, a letter from UNHCR which was prompted by the Special Adjudicator, having drawn an inference from the absence of UNHCR material to the effect that such absence supported an absence of need for protection for homosexuals. The letter clarified the position from the UNHCR position to this extent:

Although the Special Adjudicator in this case concluded against the claimant on the question of his homosexuality, and although the consideration of the objective material was not elaborate, in my judgment, her conclusion on his homosexuality did not affect her balancing of the issues and I am satisfied on everything that I have heard that this claim for judicial review must fail.

MS CHAPMAN: My Lord, might I begin by respectfully requesting the court as to my earlier submission that the case should be reported under the initial "S" and not the full name.

MR JUSTICE NEWMAN: Yes, of course. Thank you very much. Do you want a detailed assessment?

MS CHAPMAN: My Lord, I would be grateful. The second point I wish to make is that I understand there is a case known as Howard M which is a case concerning the private life on the basis of sexuality in relation to Article 8, in respect of which the Court of Appeal has given leave to appeal. There is no date as yet, however the court will then have the opportunity to look at the issue of Article 8 private life in the light of Ullah. On that basis I would ask your Lordship to consider granting permission to appeal in respect of this matter.

MR JUSTICE NEWMAN: But there has been no issue before me on Article 8 being engaged so far as sexual orientation is concerned. There has not been any issue before me that is accepted.

MS CHAPMAN: My Lord, it really comes down to the interrelation between Ullah and Z. Your Lordship stated that -- you and my learned friend were in agreement -- but I stated I thought there was, perhaps, some conflict between the judgment of Schieman LJ in Z and that of the Court of Appeal in Ullah. There are a couple of passages which may give rise to that. I am happy to take your Lordship to them. I do not yet have the details, I am not counsel in that case, but I understand this is, in essence, the basis for the argument before the Court of Appeal.

MR JUSTICE NEWMAN: Let me state for the record what I understand the position is if it is not apparent in my judgment. I should certainly, as necessary, make it more apparent in accordance with what I am about to say. I see no conflict between the decision in Z and the case of Ullah. The fact of the matter is that Schieman LJ and the Court of Appeal in that case concluded that for reasons which were peculiar to the argument and facts of that case, that there were grounds for remitting at least two of the cases. The position which seems to me to be common ground between the Court of Appeal in both cases is that as the law presently stands, Convention rights other than Article 3 do not give rise to a ground for a lawful impediment to removal. That is the hard decision which, subject only to that principle which I have applied, namely, being fact sensitive in any human rights case, is indeed the position. Thus, it seems to me that whether or not Article 8 was engaged in the sense that it was engaged because facts had arisen which would engage it, namely, sexual orientation, that was not in dispute before me, and I took it as given without argument that that was the case. If the law is as I believe it to be from the case of Z and the case of Ullah, then even if there is some issue as to whether or not sexual orientation amounts to the engagement of Article 8, it avails this claimant nothing. So that is why I refuse leave, and I shall clarify that in case it does not appear from the judgment after reflection, but thank you very much. Do you want to say anything on that? Does that reflect what your submission has been to this court, Miss Giovannetti?

MISS GIOVANNETTI: I think that is right. I think your Lordship has also found that the contrary submission was that Article 8 could preclude removal in flagrant abuse cases, but I think your Lordship has found (inaudible) would not be a flagrant abuse case whatever the outcome of any --

MR JUSTICE NEWMAN: I did. I went on specifically to consider that in order to cover the position. But there we are. All right, thank you very much.