Mx M v Secretary of State for the Home Department

The Appellant is a national of El Salvador born in 1991.

The Appellant identifies as non-binary. Having had regard to Chapter 12 of the Equal Treatment Bench Book I began the hearing by asking the Appellant what form of address they would like to be used. The Appellant requested that I use the gender pronoun ‘Mx’. I have amended the file accordingly and have used gender-neutral terms throughout my decision.

The Appellant appeals with permission against the decision of the First-tier Tribunal to dismiss their appeal on protection grounds.

Although today the Appellant identifies as non-binary, when living in El Salvador they considered themselves a homosexual man. The basis of the claim is that they would, for reason of their membership of a particular social group (LGBTI), face a real risk of persecution in El Salvador. They averred that they had been subjected to persecution in the past, by the police and the general public, and that they would be again. They further claimed that their appearance was such that they would be identifiable as/perceived to be gay or transgender and as such would be reasonably likely to face violent attack at the hands of virulently homo/trans-phobic gangs which the police would, or could, do nothing to protect them against.

The ‘reasons for refusal’ letter is dated the 27 ^th November 2019. The circumstances in which this decision arose were that the Appellant had made further submissions following an earlier refusal of protection. The original claim had been lodged on the 9 ^th October 2017. It had been refused and the Appellant’s first appeal was dismissed by the First-tier Tribunal on the 17 ^th January 2019. Further submissions were lodged on the 27 ^th September 2019 which the Respondent deemed to have a “realistic prospect of success” before a properly directed Tribunal and so, in accordance with paragraph 353 of the Immigration Rules, issued a ‘fresh claim’ refusal, attracting a second right of appeal. The Respondent accepted that the Appellant was a member of a particular social group but refused protection on the grounds that the Appellant could receive a ‘sufficiency of protection’ from the Salvadoran State.

The First-tier Tribunal directed itself to the principles set out in the Devaseelan (Second Appeals – ECHR – Extra-territorial effect) Sri Lanka [2002] UKIAT 00702*. The effect of that decision was that the Tribunal was bound to take the earlier findings, made by the First-tier Tribunal in 2019, as its starting point. In 2019 the Tribunal had concluded that the Appellant had not demonstrated that they were at risk of persecution. Even if they had, as claimed, been beaten up and spat on by the police in 2013 this incident had not been repeated; having urine and rubbish thrown at them in the street amounted to no more than discrimination; the evidence did not suggest that the Appellant had faced systematic discrimination at the hands of the state; healthcare professionals and police officers receive specialist human rights training; it had not been established that the violence/ “particularly high murder rate” in El Salvador included a disproportionate number of gay victims.

In 2020 the Tribunal heard evidence from the Appellant and concluded that the evidence was as it had been in 2019. Before they left El Salvador the Appellant had endured daily discrimination including having rubbish, drinks cans and on one occasion a bag of urine thrown at them. The Appellant had relied on their change in appearance and identity since the decision in 2019. The Appellant now wore their hair long and dyed blond and, it was submitted, this would attract a far higher level of animosity from homophobic elements within Salvadoran society. The First-tier Tribunal did not find this element of the claim to be made out. The Tribunal accepted that the Appellant has in this country been actively involved in numerous LGBTI events and organisations. It was not however satisfied that these matters would put them at risk because no one in El Salvador would know about these activities.

In respect of the Appellant’s personal circumstances the Tribunal was provided with evidence that their mental health had deteriorated and they were now receiving counselling and anti-depressants. The Tribunal concluded that since the Appellant’s conditions fell short of meeting the high threshold necessary to engage Article 3 ECHR, these matters did not represent a change in circumstance which would permit departure from the 2019 decision of the First-tier Tribunal.

Turning to the objective country background material the Tribunal noted a Human Rights Watch report dealing with the position of Salvadoreans deported from the United States. The report stated that LGBT individuals face ‘specific threats’ upon return. Such individuals face rejection from their families and so receive no support during the integration process. Gangs target LGBT people, subjecting them to sexual violence and extortion. Several LGBT returnees reported being beaten or sexually assaulted by the police. Of this information the Tribunal concluded:

This is a claim raising a fear of persecution for reasons of membership of a particular social group. That group is defined by the Appellant’s sexual orientation and gender identity. As such decision makers are bound to apply the principles set out by the House of Lords in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.

At paragraph 82 of HJ (Iran) Lord Rodger sets out the legal framework for enquiry to be applied to such claims:

To date these principles have not been applied in this case. HJ is neither cited nor applied in the Respondent’s refusal letter. Nor does it feature in the reasoning of either of the First-tier Tribunal’s decisions. It is the framework that I now apply when considering whether the 2020 decision of the First-tier Tribunal is flawed for any error of law.

Lord Rodger’s first question is this:

In this case the Respondent accepted, as long ago as 2018, that the Appellant identified as, and in El Salvador was treated as, a gay man. That was not however, the extent of the evidence. This was a fresh claim. That claim was based largely on the fact that since the Appellant had come to live in the United Kingdom they had, with the assistance of a specialist support group in Liverpool, further explored their identity. They had changed their appearance and feared that they would in El Salvador be seen as a transgender woman. By the date of the appeal before the First-tier Tribunal the Appellant expressly identified as non-binary. The First-tier Tribunal does not appear to have doubted that assertion, but nowhere is it positively recognised as a factor relevant to either the procedural disposal of the appeal, or the question of risk.

In procedural terms the failure to make a positive finding on the Appellant’s identity meant that they were throughout the First-tier Tribunal decision referred to as ‘he’. As the Equal Treatment Bench Book notes: “it is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns. Everyone is entitled to respect for their gender identity, private life and personal dignity”. The Bench Book goes on to observe: “it should be possible to recognise a person's gender identity and their present name for nearly all court and tribunal purposes, regardless of whether they have obtained legal recognition of their gender by way of a Gender Recognition Certificate” (Chapter 12, March 2020 revision). This guidance is consonant with that given to Home Office caseowners. In the June 2011 Asylum Policy Instruction Gender Identity Issues in the Asylum Claim decision makers are advised:

There will no doubt be cases where there might be justification for not following this guidance: a case where, for instance a claim to be transgender has been expressly rejected as false. Decision makers should however where possible apply the guidance in the Equal Treatment Bench Book and use gender terminology which respects the chosen identity of claimants before them. There was no reason not to do so here, where the self-identification of the Appellant was neither challenged nor doubted.

In terms of the substantive protection issue it is not clear the extent to which the First-tier Tribunal understood how the claim advanced before it had evolved. In 2019 the Tribunal’s focus had been the treatment that the Appellant had endured as a gay man living in El Salvador between 2011 (when they came out) and 2016 (when they left). Today the claim was not simply that the Appellant was homosexual, it was that in the relative safety of the United Kingdom their whole identity had fundamentally changed. This is acknowledged by the First-tier Tribunal at its §42 where it records the evidence of specialist psychotherapist Lucy Martin that the Appellant now identifies as non-binary, but nowhere is that matter considered, nor finding made. At §37 the Tribunal appears to reduce this evidence, concerned as it is with the core of the Appellant’s identity as a human being, to this:

Had the Tribunal squarely confronted the evidence of the Appellant’s changed identity, and made findings on it from the outset, it would have been far better placed to answer the remaining questions posed by Lord Rodger in HJ (Iran) . The Appellant was no longer a gay man but was now a member of the wider LGBTI community.

The short answer reached by the First-tier Tribunal was no. As I have already identified, that finding is already in some difficulty given that the Tribunal had not accurately identified the parameters of the social group it was considering. I am however satisfied that in reaching that conclusion the Tribunal erred in three other discrete respects.

The first is in its failure to consider all of the relevant evidence. There was a good deal of country background material before the First-tier Tribunal detailing the treatment of LGBTI individuals in El Salvador. There was specific evidence relating to the ill-treatment of those who were perceived to be transgender women. Mr Wood submits, with justification, that none of that evidence is addressed in the decision. In particular Mr Wood complains that the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from El Salvador , which he had placed at the centre of his submissions before the First-tier Tribunal, do not feature at all in the Tribunal’s reasoning. Mr Wood relies upon Court of Appeal authority to the effect that the views expressed by UNHCR will “typically command very considerable respect”: see for instance HF (Iraq) v Secretary of State for the Home Department [2013] EWCA Civ 1276. He submits that in light of that it was incumbent upon the Tribunal to at least consider that material, highlights of which include:

The second error is perversity. Although that is a high test, I am satisfied that it is here made out. At its §44 the Tribunal summarises the evidence contained in the one country background report to receive mention in the decision, the February 2020 Human Rights Watch publication Deported to Danger: United States Deportation Policies Expose Salvodorans to Death and Abuse. The Tribunal begins by cautioning itself that the report does not “correlate well” with the Appellant’s case since the Appellant is not a deportee from America. I find it hard to understand why this distinction is made. Although the Appellant is not facing ‘deportation’ as we would understand that term of art, and they are obviously not in the United States, the focus of the report is on persons who are returning to the country after having sought refuge abroad, the precise situation that the Tribunal was being asked to consider. As to what conditions they might face, the Tribunal summarised the evidence in the report as follows:

From this evidence, the Tribunal concludes that LGBTI individuals do not face a risk of persecution in El Salvador. Without more detailed explanation I am at a loss to understand how that evidence was logically capable of underpinning that conclusion. The evidence was capable of being read to mean that some LGBTI people might escape serious harm; it did not support the conclusion that LGBTI people are as a general matter safe from persecution. I should add that the passage cited by the Tribunal is incomplete. The rest of it reads:

The third error is in the approach taken to the Appellant’s lived experience. In their evidence the Appellant narrates daily abuse which included having rubbish – including drinks cans and on one occasion a bag of urine – thrown at them. Such assaults would also be accompanied by verbal homophobic abuse. In 2013 the Appellant was subjected to an assault by five police officers in San Salvador. The officers stopped the Appellant in the street to ask why their hair was blond. When the Appellant replied “because I like it” the officers pushed them up against a wall and for a period of about five minutes “slapped and punched” the Appellant whilst subjected them to homophobic insults and spitting on them.

The 2019 Tribunal’s global conclusion about all of that, endorsed by the 2020 Tribunal, was this: “even at its highest, I consider these incidents, whilst undoubtedly unpleasant, amount to discrimination rather than persecution”. Although this is not a point raised in the grounds, I am satisfied that this amounts to a misdirection and a Robinson obvious (Footnote: ²) error of law.

Article 9 of the Qualification Directive defines as a minimum standard an ‘act of persecution’ as follows:

Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is one of the non-derogable rights referenced at Article 9(1)(a):

In HJ (Iran ) Lord Hope noted that ‘persecution’ has been recognised as a strong word. It will not cover each and any harm experienced by individuals seeking protection; it would not for instance include the disapproval of family members or wider society. The harm feared must be of sufficient severity, and there must be a nexus to one or more of the core rights protected by the Refugee Convention. To this end the Supreme Court endorsed Professor Hathaway’s oft-cited formulation:

Lord Hope further cites with approval the dicta of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 in which McHugh and Kirby JJ say [at §40]:

Applying this guidance to the findings of the First-tier Tribunal I consider first the incident involving five police officers. Five men surround one person. The men are in uniform and are – I assume in the context of El Salvador – armed. They hold a considerable amount of power over the individual concerned. There are reports of men like that beating, sexually assaulting or even killing individuals like the Appellant. The Appellant is taunted, pushed, slapped, punched and spat upon in an assault lasting approximately five minutes before being left lying in the street. The sole reason advanced by the First-tier Tribunal for its conclusion that this did not amount to persecution is that the Appellant did not go through a similar experience again. This allusion to a lack of persistence does not amount to an analysis of the event itself. Article 9 (1)(a) of the Qualification Directive provides that an act of persecution is one sufficiently serious by its repetition or “nature”, the signatory states here recognising that a single violation of a non-derogable right can be sufficient, and that repetition is not necessary: this recalls Professor Hathaway’s ‘hierarchy’ of rights, to which I return below. Article 9 (2) elaborates that an act constituting a severe violation of basic human rights can include (but not be limited to):

The Appellant does not claim to have sustained any serious injury during this assault, but it was a physical assault, by the police, motivated by nothing other than homophobia. Five minutes is a long time to be beaten. I do not doubt that it was for the Appellant a terrifying experience and one capable of reaching the minimum standard of qualification set out in Article 9(2)(a). To be surrounded by men in authority, taunted, physically attacked and spat upon was surely an exercise in humiliation designed to punish the Appellant for nothing more than being who they are. The power imbalance between perpetrators and victim, and the nature of the assault, made it of sufficient severity to constitute “inhuman and degrading treatment” contrary to Article 3 ECHR, a non-derogable core entitlement.

The other aspect of the historical claim advanced by the Appellant is that on a daily basis, over a number of years, they were subjected to abuse by people in the local community which included the throwing of projectiles. Both the 2019 and 2020 Tribunals appear to have proceeded on the assumption that this behaviour was not capable of constituting serious harm. I am satisfied that for two reasons this finding is flawed.

The first is that neither Tribunal explored in any detail the incident described by the Appellant where they were hit by a bag of urine – by any estimation, and for any victim, surely an act of inhuman and degrading treatment. Nor was any particular attention paid to the evidence that the projectiles very often included cans of drink, sometimes partially or entirely full: to be hit by even a half-full can of drink is a physical assault capable of causing bruising or cuts.

The second difficulty with this finding is that no consideration has been given to whether the events described are capable of constituting ‘acts of persecution’ within the meaning of Article 9(1): were they sufficiently serious by their repetition and accumulation to constitute a severe violation of a basic human right. In The Law of Refugee Status Professor Hathaway suggests that ‘serious harms’ can be placed in a hierarchy. The most serious violations – extrajudicial killing or torture, from which there can be no derogation – will always attract the protection of the Convention. Violations of lesser magnitude – for instance an interference with cultural rights - would only attract protection where it could be shown that by their systemic application the violations, considered cumulatively, amounted to serious harm for the individual concerned. It is here that the nexus to the Convention ground becomes relevant. If an individual has to suffer the daily degradation of telling his children that there is no food to put on the table, this is not a matter covered by the Convention: as hard as that might be to bear for the individual concerned it is a matter outwith the bounds of refugee protection. Where however the harm feared is expressly inflicted in order to punish or prevent the individual from exercising a core entitlement – here ‘membership’ of the LGBTI community – then a causal nexus can be established.

Where such abuse is occasional, it may reasonably be described as harassment. Where however this is inflicted on a daily basis, every time the Appellant leaves the house, with the direct intention of “pursuing with malignancy or injurious action” - t he dictionary definition preferred by Nolan J in R v Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm AR 7 - then it may legitimately be held to constitute persecution of the type conceived by Article 9(1)(b) of the QD. In this case the harm inflicted ranged on a daily basis from verbal abuse to the degrading physical ill-treatment of being showered with rubbish or urine. It is inflicted for no reason other than the Appellant’s perceived sexuality/gender identity. In those circumstances it cannot automatically be reduced to “discrimination” or “harassment”. I am satisfied that it reaches the threshold in Article 9. As the Australian High Court expressed it in App S395/2002, it is harm of such intensity and duration that the person experiencing it cannot reasonably be expected to tolerate it. LGBT people should not be expected to “tolerate” being abused and having rubbish thrown at them every single day of their lives.

The third and fourth questions posed by Lord Rodger were the subject of the controversy that led to the decision in HJ (Iran ): whether gay claimants could reasonably be expected to behave “discreetly” in order to avoid persecution. The answer, held the court, was that the enquiry is a mixed question of law and fact. Signatory states cannot abdicate their responsibility to offer protection by telling the putative refugee to give up the very rights that the Convention exists to uphold. On the other hand a claimant who would choose to conceal their protected characteristic for reasons entirely unrelated to fear, and thereby secure their own safety, will not be entitled to protection.

Neither of these questions receive a particularly clear answer from the First-tier Tribunal. It appears to be assumed that the Appellant would be ‘out’ if returned to El Salvador. This was no doubt based on the accepted evidence that they had to some degree been ‘out’ in the past, although the Appellant’s more nuanced evidence on this matter is not expressly considered:

For all of the foregoing reasons I set the decision of the First-tier Tribunal aside.

In my risk assessment I follow the framework set out by Lord Rodger in HJ (Iran ).

I am satisfied that the Appellant is a member of a particular social group. At the time that the Appellant was refused protection the Respondent had accepted this, defining the group as ‘homosexual men’. As I set out above, the Appellant’s identity had by the time of the First-tier Tribunal hearing evolved so that they considered themselves ‘non-binary’, that is to say they consider themselves to fall outwith the fixed gender binary of female-male; shortly before the final hearing before me Mr Wood confirmed that this remains the case, but that his client would also be happy with the terms ‘she’ or ‘her’. Regardless of what label we, or Salvadorans, might affix to the Appellant I am satisfied that for the purpose of this risk assessment their identity is visibly ‘other’. When the Appellant arrived in this country they wore their hair short and dark; today it is long and platinum blond. They will appear, and will be perceived, to be a transgender woman.

Applying HJ (Iran ) the next question I must ask myself is this: do members of this particular social group face persecution in El Salvador if they live openly?

In considering this matter I have the benefit of a new Country Policy and Information Note (CPIN) entitled Gangs: El Salvador . This document was published in February 2020 in the hiatus between the First-tier Tribunal hearing and its decision being promulgated. Both parties agreed that it should be admitted into evidence upon remaking and having regard to Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, I do so. It is important for two reasons. In broad brush strokes the decisions below were built on two premises: that the harm endured by LGBTI people in El Salvador amounted only to discrimination, and that sufficient protection was offered by the state. The CPIN now contains material contrary to both of those conclusions.

First, the CPIN sets out evidence from multiple respected sources that as well as suffering significant levels of discrimination LGBTI people are also subject to serious harm in El Salvador [at section 10.7]. I note that the sources emphasise that transgender women are particularly at risk:

This evidence, from inter alia the Immigration and Refugee Board of Canada, the United Nations Special Rapporteur and the Internal Displacement Monitoring Centre at the University of London, is accepted by the Respondent to demonstrate that LGBTI people, and specifically trans people, are particularly at risk of violence in El Salvador [at 2.4.8]:

In respect of whether the El Salvadoran government can offer a sufficiency of protection to persons targeted by gangs, the CPIN concludes that as a general matter, it cannot [at 2.5.13]:

As to the specific measures implemented to protect the LGBTI community, considered by the First-tier Tribunal to defeat the Appellant’s claim, the CPIN highlights this evidence:

All of that is consonant with the UNHCR guidelines and the Human Rights Watch report which I refer to above. In light of that uncontested background material I accept the Respondent’s view that whilst there are as a matter of law in El Salvador measures in place to protect citizens from violence, the weaknesses in the criminal justice system are such that the state is in general unlikely to be able to provide effective protection where individuals are facing violence from gangs. Those gangs are, in the estimation of the UNCHR, virulently homo and trans-phobic. Transwomen, or those perceived to be transwomen, are particularly vulnerable. Although the sources cited do not offer any explanation as to why that might be, one obvious explanation could be that unlike gay men who can try and ‘pass’ for straight, many transwomen are, like the Appellant, visibly different. As researchers at the University of London put it, in the violent and macho culture of El Salvadoran gangs, “anyone who does not appear to fit patriarchal gender norms is targeted…most criminal attacks on LGBT people are against transwomen, who live “a life of abuse that is a continuum of violence”. I further note that the Appellant’s account of being subject to homophobic assault by the police is entirely consistent with the information reproduced in the CPIN.

Having had regard to that country background evidence I am satisfied that a transwoman, or someone perceived as such, who tries to live openly in El Salvador would face persecution which may include murder, rape and other sexual violence, physical assault and coercion into criminal activities. Although the state – or more accurately elements of the state - may be willing to combat such harms the weakness of the criminal justice system, including homo and transphobic attitudes by police officers, are such that there is unlikely to be a ‘sufficiency of protection’ in practice.

As to the final stage of my enquiry – how the Appellant would live if returned home and why- I have had regard to the following evidence. From the Appellant I have the asylum interview record, two witness statements, and an interview that the Appellant conducted ‘Jack All Productions’ for the purpose of a documentary video in June 2019. I also have written evidence from Shereen Cowley and Mr Mohammad Taher. Ms Cowley and Mr Taher both have long standing involvement with the Liverpool Asylum and Refugee LGBTQ+ Support Network, she as a support worker with ‘Many Hands, One Heart’ , he as a community development worker with Merseycare NHS Trust. They have both known the Appellant since 2017, and both have, on different occasions, attended appeal hearings with the Appellant.

What emerges from that evidence is a complex, and appropriately non-binary, picture.

Whilst living in El Salvador it would appear that the Appellant was prepared to push some boundaries. It was their dyed blond hair (still at that stage short) which led to the attack by the police in 2013. It was their decisions to live with their partner, and to use “feminine accessories” which led to the daily ritual of being showered with rubbish, pelted with cans and homophobic abuse. It was this ill-treatment which led them to modify their behaviour, for instance deciding not to hold hands with male partners in public.

In their witness statement the Appellant explains how having left El Salvador their desire to live openly has solidified:

Mr Taher and Ms Cowley both confirm that the Appellant has been heavily involved in various LGBTI activities in Liverpool, including an event to mark the International Day Against Homophobia, Bi-phobia and Transphobia, Liverpool Pride, and various campaigning/arts events. The Appellant has twice spoken to large conferences of social workers about their experiences, and they helped to organise and perform at celebrations to mark Refugee Week in Liverpool. Mr Taher commends the Appellant’s “strong leadership” for LGBT+ asylum seekers in Liverpool over the past two years. The Appellant has worked alongside voluntary groups, the council, social workers and the police to increase understanding of the challenges faced by this group.

Whilst this evidence, and past behaviour, would tend to suggest that the Appellant may be willing to live ‘openly’ if returned to El Salvador, the Appellant dispels any such notion:

So although the Appellant did live, to some extent, openly as a gay man in El Salvador, and lives very openly and actively as a non-binary individual here, it is apparent that they are extremely frightened about continuing this should they be asked to return home: that this is so is further attested to by the various medical professionals who confirm that the Appellant suffers from depression and anxiety about their future. I bear in mind that the Appellant has already left El Salvador once because they could not tolerate the treatment that they endured there; now that they believe themselves to be far more vulnerable to attack it seems likely to me that they would feel compelled to modify their behaviour, including their political and social activism, to live ‘discreetly’. Having had regard to the country background evidence, and the evidence personally relating to the Appellant, I am satisfied that they would do so for no reason other than a fear of persecution. There is for instance no suggestion that the Appellant would do so because they are by nature a private person. It follows that applying the principles in HJ (Iran ) the appeal must be allowed.

This appeal concerns a claim for protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

The determination of the First-tier Tribunal contains material errors of law and it is set aside.

I remake the decision by allowing the appeal on protection and human rights grounds.

There is an order for anonymity.