A good and bad week for gay rights

9 July 2010 by Rosalind English

In two recent but separate developments, homosexuals fleeing persecution have been granted a lower threshold for refugee status and the Strasbourg Court has rejected a complaint by a same sex couple that Austria was in violation of the Convention for not granting them the right to marry.

We posted earlier on the case of HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010), in which the Supreme Court ruled as unlawful the government’s policy of sending refugees back to their home countries because they could avoid persecution if they acted discreetly.

There are two questions raised by this judgment and its implications. One concerns the extraterritorial reach of rights observed by signatory states to the Refugee and Human Rights Conventions. The second is the sheer practical difficulty of examining the veracity of a persecution claim based on these particular grounds.

Rapid evolution

There has been a rapid evolution in social attitudes since the Refugee Convention was drafted. As Lord Hope observes, persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties. This was not of course because it was tolerated but simply ignored so did not need to be oppressed.

This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another.

Have the obligations of the Contracting Parties to the Convention changed to reflect these developments? This question is at the core of this important decision. It seems that the rationale behind the Convention is being stretched on a rack between two opposing factors. One is the efflorescence of additional rights which in some way relate to the core identity of individuals, such as sexual orientation. The other is that the Contracting Parties did not undertake then, by signing up to the Convention, nor do they undertake now, to reform the level of rights prevailing in the country of origin. Neither the Refugee Convention, nor, it is worth reminding ourselves, the European Convention on Human Rights, are aimed at guaranteeing universal human rights:

So the conditions that prevail in the country in which asylum is sought have no part to play, as a matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31:

“The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states.”

In Cameroon, sentences for up to five years are imposed on discovery of homosexuality. But in some countries women who wear trousers are threatened with fines or even imprisonment, as was publicised in the case of Lubna Hussein, the Sudanese woman who was sentenced to prison for her defiance of the Islamic dress code. What would we do if all victims of this (to the West) intolerable persecution arrived at our ports of entry? The Refugee Convention has to be interpreted and operated in such a way that its signatory states are not obliged to rescue all people who were disproportionately punished for activities that are not recognised as crimes in the enlightened West.

Refugee status is such high currency in a world of failing states, oppressive theocracies and widespread poverty that the desperation to qualify for that status may lead to elaborate arrangements to counterfeit homosexual orientation in order to be granted asylum, a deception which would be extremely difficult to entangle. It would require repugnant and invasive examination of the applicant’s specific characteristics which would no doubt bring amount to interference with that person’s right to respect for privacy under Article 8.  The answer to this practical problem, Lord Hope says, is to look into the history of the applicant to see whether he has been persecuted because he is suspect of being gay. But this does not provide a realistic test where the applicant claims that he has had to conceal his sexual orientation because of the risk of persecution; there will be no historical evidence to go by.

Whatever the practical implications of this ruling, it was arguably the only interpretation of the Geneva Convention open to the judges. For this reason some think that it is time for   a root and branch review an international legal obligation which

catches in its spotlight a wider number than gay refugees alone; gender refugees, too: women fleeing Islamic oppression. It illuminates all those billions who might in good faith claim refuge from prejudice, sexual, cultural, racial or political. …. The claim made by all these people is good.

But there are just too many of them.

Parris proposes two amendments to the Convention, one of which would require refugees to apply to an international body for asylum, rather than individual countries of their choice; the second, “harsher” amendment is that

Asylum should not be available to anyone who could choose to live, reasonably safely, in the state they want to flee. For gays that would indeed mean exercising the caution that hundreds of millions of gay people across the world do in practice have to exercise. For women it would mean accepting the subjection that women in much of the world do accept. For political dissidents it would mean keeping out of politics. Under this amendment asylum would be restricted to those who sought refuge from tyranny so extreme that it would be impossible for them to choose to stay and live a quiet life.

Read We must harden our hearts and our borders for more reflections on this topic.

Meanwhile, over in Strasbourg…

A complaint of a very different type of discrimination, the refusal of a European Convention state to allow same-sex couples to marry, was recently decided by the Strasbourg Court in Schalk and Kopf v. Austria (application no. 30141/04)

The applicants were a same-sex couple whose request to the competent authorities to allow them to contract marriage had been refused on the grounds that marriage could only be contracted between two persons of the opposite sex. Their complaint to the Constitutional Court of Austria was also rejected. That Court held that neither the Austrian Constitution nor the European Convention on Human Rights required that the concept of marriage, as being geared to the possibility of parenthood, should be extended to relationships of a different kind and that the protection of same-sex relationships under the Convention did not give rise to an obligation to change the law of marriage. The applicants claimed that they had suffered violations of Article 12 and Article 14, in conjunction with Article 8.

The government argued that the applicants could not claim to be victims of the alleged violation following the entry into force of the Registered Partnership Act which recognised same sex relationships and put them on a legal footing. However the Court did not accept as invalidating the applicants’ victim status the argument that the new law had been introduced as it was a matter of policy choice and not an acknowledgment of the breach of the Convention alleged by the applicants.

However, in the substantive judgment the Strasbourg Court held that there had been no violation of any of these Articles. As far as Article 12 was concerned, the Court observed tat among the Council of Europe states there was little or no consensus on same-sex marriage. This was a matter for the national authorities who were best placed to assess and respond to the needs of society in this field.

As far as the complaint under Article 8 was concerned, the Court accepted that the relationship of the applicants, a cohabiting same-sex couple living in a stable relationship, fell within the notion of “family life” just as the relationship of a different-sex couple in the same situation would. But given that the Convention was to be read as a whole, having regard to the conclusion reached that Article 12 did not impose an obligation on States to grant same-sex couples access to marriage, the Court was unable to share the applicants’ view that such an obligation could be derived from Article 14 taken in conjunction with Article 8.

As the dissenting judges pointed out, in this case the Court has taken a major step forward in its jurisprudence by extending the notion of “family life” to same-sex couples; some might think this is a somewhat belated development. Equally, it is not entirely clear why the Court did not find a violation of Article 14 taken in conjunction with Article 8 in the light of its finding that the applicants’ situation fell within the ambit of Article 8, and the government did not advance any justification for the difference in treatment between analogous social groups (marriage for heterosexual couples but not for same sex couples).

It does not follow from the Court’s finding that Article 12 requires states to recognise same sex couples in this way (the lack of social concensus on this issue in European states militated against such a conclusion), that the claim under Article 8 in conjunction with Article 14 should have been rejected; after all the rights in the Convention are autonomous free standing rights which cover different interests. It is not surprising that three of the judges dissented (Rozakis, Spielman and Jebens, all, interestingly, from countries where the Catholic Church does not have a stronghold).