Being unable to live openly as gay man does not amount to persecution


Re: YD (Algeria) v Secretary of State for the Home Department [2020] EWCA Civ 1683

This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 21 November 2017, dismissing an appeal against a decision of the First-tier Tribunal. That tribunal had dismissed the appellant’s appeal against a decision of the respondent of 13 October 2015 refusing him leave to remain in the United Kingdom. In essence, the respondent rejected the appellant’s claim that, as a gay man, he would be subjected to persecution were he to be returned to Algeria and his claim that return would be incompatible with his right to respect for his private and family life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The issues that arise on this appeal are whether the Upper Tribunal in OO (Algeria) wrongly equated persecution with a risk of being subjected to physical violence and also failed to consider, cumulatively, the impact of the treatment that gay men would face in Algeria. Further, the appeal raises the issues of whether it would be unduly harsh to require the appellant to relocate within Algeria or whether returning him to Algeria would amount to a disproportionate interference with his rights under Article 8 of the Convention given that he would conceal his sexual orientation if he returned to live in Algeria.

Held: The Upper Tribunal did not err in relying on the earlier country guidance case of OO (Algeria). That case did properly consider whether gay men in Algeria had a well-founded fear of persecution. It addressed itself to the correct question of how an openly gay man would be treated in Algeria; it did not restrict the definition of persecution to acts of violence and did consider all the relevant evidence and circumstances. It was entitled to find on the evidence that, outside the family, a gay man in Algeria would not face a real risk of persecution.

The fact that the Appellant would not live openly as a gay man if he returned because of social, cultural and religious norms in Algeria did not amount to persecution. Nor would it be unduly harsh on the facts of this case for the appellant to relocate within Algeria to avoid the risk of ill-treatment at the hands of his family. The Upper Tribunal was entitled to find that there were no significant obstacles to his reintegration into Algeria. For those reasons, this appeal is dismissed.

Raza Husain QC and Eleanor Mitchell were involved in this case.