Upper Tribunal (Immigration and Asylum Chamber) OO (Gay Men) Algeria CG [2016] UKUT 00065 (IAC) THE IMMIGRATION ACTS Heard at Field House Decision Promulgated On 23 and 24 September 2015 ………………………………… Before Upper Tribunal Judge Southern Deputy Upper Tribunal Judge Kamara Between OO Appellant And THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Ms R. Chapman of counsel (assisted by Ms U. Dirie), instructed by Luqmani Thompson & Partners, solicitors For the Respondent: Mr S. Singh, counsel instructed by the Government Legal Department. 1. Although the Algerian Criminal Code makes homosexual behaviour unlawful, the authorities do not seek to prosecute gay men and there is no real risk of prosecution, even when the authorities become aware of such behaviour. In the very few cases where there has been a prosecution for homosexual behaviour, there has been some other feature that has given rise to the prosecution. The state does not actively seek out gay men in order to take any form of action against them, either by means of prosecution or by subjecting gay men to other forms of persecutory ill-treatment. © CROWN COPYRIGHT 2016 2. Sharia law is not applied against gay men in Algeria. The criminal law is entirely secular and discloses no manifestation, at all, of Sharia law in its application. 3. The only risk of ill-treatment at a level to become persecution likely to be encountered by a gay man in Algeria is at the hands of his own family, after they have discovered that he is gay. There is no reliable evidence such as to establish that a gay man, identified as such, faces a real risk of persecutory ill-treatment from persons outside his own family. 4. Where a gay man remains living with his family to whom he has disclosed his sexual orientation in circumstances where they are prepared to tolerate that, his decision to live discreetly and to conceal his homosexuality outside the family home is not taken to avoid persecution but to avoid shame or disrespect being brought upon his family. That means that he has chosen to live discreetly, not to avoid persecution but for reasons that do not give rise to a right to international protection. 5. Where a gay man has to flee his family home to avoid persecution from family members, in his place of relocation he will attract no real risk of persecution because, generally, he will not live openly as a gay man. As the evidence does not establish that he will face a real risk of persecution if subsequently suspected to be a gay man, his decision to live discreetly and to conceal his sexual orientation is driven by respect for social mores and a desire to avoid attracting disapproval of a type that falls well below the threshold of persecution. Quite apart from that, an Algerian man who has a settled preference for same sex relationships may well continue to entertain doubts as to his sexuality and not to regard himself as a gay man, in any event. 6. For these reasons, a gay man from Algeria will be entitled to be recognised as a refugee only if he shows that, due to his personal circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria to avoid persecution from family members, or because he has a particular characteristics that might, unusually and contrary to what is generally to be expected, give rise to a risk of attracting disapproval at the highest level of the possible range of adverse responses from those seeking to express their disapproval of the fact of his sexual orientation. Decision 1. In this determination the Upper Tribunal addresses the current situation in Algeria in order to determine the appellant’s appeal and to give country guidance upon the risks faced in that country by gay men. 2. We should make clear, at the outset, that the Tribunal has made an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the effect of which is that nothing is to be published that may lead to the identification of the appellant. 3. The appellant, who was born in 1995, left Algeria in 2008 and, having spent just over a year and a half in France then travelled to the United Kingdom, arriving concealed in the back of a lorry in mid 2010. He claimed asylum on the basis of facing a real risk of persecution in Algeria as a gay or bisexual man. His appeal was dismissed but, 2 permission to appeal having been granted, his claim was considered afresh by the Upper Tribunal which resulted in the country guidance decision OO (gay men: risk) Algeria [2013] UKUT 00063 (IAC). The appeal now comes before the Upper Tribunal once again as a consequence of an order of the Court of Appeal, made with the consent of the parties on 19 January 2015 in which it was said that: “The appeal is hereby allowed to the extent that the decision of the Upper Tribunal of 25 March 2013 in this appeal be set aside and the appeal be remitted to the Upper Tribunal (IAC) for the issues of the risk to gay men in Algeria generally and whether the Appellant’s claim to be bisexual is credible to be heard by a differently constituted Tribunal.” 4. Therefore, this decision replaces the country guidance presently in place. 5. The Tribunal heard oral evidence from the appellant and from one of the two expert witnesses, Dr David Seddon. The Tribunal has had regard to written evidence from another country expert, Ms Alison Pargeter, and received oral and written evidence from Dr Ludovic Zahed who, although not presented as an expert witness, is someone who is well placed to express an informed view upon the matters we must consider, for the reasons we give below. The Tribunal has also had regard to a wide range of documentary evidence which is identified in the annex to this decision. 6. In support of his factual account of his experiences in Algeria and his claim to be a bisexual man, both of which are disputed by the respondent, the appellant relies upon a further range of evidence, including the expert evidence of Dr David Bell, a consultant psychiatrist who has examined issues concerning the appellant’s mental health and, as will be relevant to our assessment of his credibility, how that impacts upon his ability to give oral evidence effectively and reliably. 7. In this determination we consider first the question of risk faced by gay men generally in Algeria before addressing the separate question of the appellant’s own credibility and his claim to be a refugee. 8. In advancing her final submissions, Ms Chapman confirmed that the appellant does not pursue in these proceedings any claim under article 8 of the ECHR and so, although there is reference to that in her skeleton argument, we need concern ourselves only with the appellant’s protection claim. The Legal Framework 9. Article 1A(2) of the Geneva Convention provides that a refugee is a person who: “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…” In this appeal the Convention reason in play is the appellant’s asserted membership of a particular social group, that being gay or bisexual men in Algeria. It is uncontroversial that gay and bisexual men in Algeria are capable of constituting a 3 particular social group and so the question is whether, as a consequence, the appellant would face a well-founded fear of persecution on that account. 10. Article 9 of the Qualification Directive provides: Article 9 Acts of persecution 1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); (f) acts of a gender-specific or child-specific nature." 11. Any assessment of a protection claim of this type is informed by the leading case of HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31. In particular, at para 82, under a heading “The approach to be followed by tribunals”, per Lord Rodger: “When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly". If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, eg, not wanting 4 to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.” 12. As we shall see, in Algeria homosexual behaviour is criminalised by legislation. It is established by the decision of the Court of Justice of the European Union (CJEU) in XYZ v Minister voor Immigratie en Asiel (Case C-199/12 to C201/12) that: “… the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of article 9(1) of the (Qualification) Directive. … … However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopts such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.” 13. Ms Chapman pursues a further argument in this regard, that being founded upon the judgment in the European Court of Human Rights (ECtHR) of Judge De Gaetano in M.E. v Sweden (Application no 71398/12 [2014] ECtHR). Although Judge Gaetano agreed with the outcome arrived at by the Court, and so did not dissent from that, he considered that there was simply no need for the court to adopt, at para 50 of the judgement of the Court, the reasoning of the ECJ in respect of laws criminalising homosexuality that in practice are not applied. In his “separate opinion” he therefore departed from the text agreed by the other six judges who agreed it, and said: “The reference to the judgement of the ECJ in the names Minister voor Immigratie en Asiel v X, Y and Z in paragraph 50 is totally unnecessary for the determination of the present case. The controversial statement (admittedly made in the specific context of Council Directive 2004/83/EC) to the effect that “criminalisation of homosexual acts per se does not constitute an act of persecution could be seen as somewhat undermining the standards set by the Court as far back as the 1980’s in connection with the criminalisation of homosexual acts and the resulting violation of Article 8 (see Dudgeon v the United Kingdom no. 7525/76, 22 October 1981 paras 40 to 46; Norris v Ireland no. 10581/83, 26 October 1988, paras 38 and 46 to 47) and the consequent irrelevance, for the purpose of a violation of fundamental human rights, of whether or not such laws are in fact applied or applied sporadically.” 5 However, in our view, for a number of reasons, quite apart from the fact that Ms Chapman made clear that she pursued no claim under article 8 of the ECHR, that submission leads nowhere. First, in this separate opinion Judge Gaetano simply expresses an opinion of what might be the position. Second, as he recognised, the ECJ was concerned with the Directive and not the ECHR. Third, the only firm view expressed is that the issue was irrelevant for the purpose of determining the application before the Court. Fourth, and in any event, the assessment to be made is a holistic one: all of the circumstances are to be considered. It is not simply a question of whether laws carrying a possibility of prison sentences are in fact enforced. The question is whether the existence of such laws, whether enforced or not by the state authorities, impact upon those who fall within their scope in a manner giving rise to persecution. For example, the existence of such laws, even if in practice not enforced by the prosecuting authority, might theoretically encourage other forms of persecutory ill- treatment to be perpetrated against gay men by people other than state agents. Finally, if the position is that there is shown to be no real risk that an unenforced law would impact in any negative way at all then it is hard to see how any rights protected by the ECHR could be infringed. 14. Before leaving X,Y and Z we must deal with one further submission advanced by Ms Chapman. In short, she submitted that the ECJ took a step further than did the UK Supreme Court (UKSC) in HJ (Iran) at para 70: “… it is important to state that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it.” If we understand correctly the point being made, it is the absence in that observation of any requirement that there be persecution threatened or deployed to secure that requirement to conceal sexual orientation. However it is plain from the opening paragraph of this section of the judgment that no such departure from the HJ (Iran) approach was signalled: “…the referring court asks essentially whether article 10 (1)(d) of the Directive…. Must be interpreted as meaning that it is unreasonable to expect that, in order to avoid persecution, an asylum seeker must conceal his homosexuality…” Evidence of Dr David Seddon Introduction 15. Dr Seddon is a well-known and respected country expert with extensive experience of Algeria going back more than 30 years, although he told us his interest in issues of sexual identity in Algeria first arose about two years ago. He has a distinguished academic background and provided oral and written evidence in the previous country guidance case also. He has made visits to Algeria in 2001, 2008 and 2012 and before that had lived in Algeria for a period of time. Over the last 15 years he has spent a total 6 of 3 months in Algeria. He has maintained an interest in general country conditions in Algeria and we accept that he is well placed to express an expert view. Having said that, we recognise also that his expert view can be informed only by the relevant up to date evidence that is available to him, evaluated through the prism of his extensive knowledge of the country and its citizens. 16. Dr Seddon has provided a lengthy written report and has responded in writing to questions arising from it that were posed by the respondent for him to answer. His oral evidence was extensive, taking most of a day of the two day hearing. This evidence has, of course, been assessed in the context of the evidence as a whole, including the appellant’s own evidence of his experiences in Algeria, and the submissions advanced on his behalf which we examine in detail below. However, it is convenient for us to make clear what we made of Dr Seddon’s evidence as we summarise the significant aspects of it. We record here that we take the same approach when considering the evidence of each witness who has provided evidence in this appeal. 17. At the beginning of his oral evidence, Dr Seddon was asked about the material upon which he based his expert opinion. He recognised that there was a real paucity of hard evidence available concerning the matters he discusses in his report. He said that the difficulty faced is that much of what occurs in this respect takes place within the family and very few cases are well documented. He said that he had examined local press reports as well as international reports but found very little to assist. He therefore founded his view upon what little was available in documentary reports, his own personal experiences of living in Algeria, although that was some considerable time ago, since when he has made a few relatively brief visits, and anecdotal evidence provided by Algerian nationals he had spoken to, although generally they were speaking not about what had happened to themselves but to others whose accounts they were passing on “second hand”. 18. Dr Seddon placed reliance also upon conversations with contacts associated with Algeria. He had been unable to establish contact with the two individuals he knew who remained in Algeria, but he had had a long conversation with an Algerian gay man who now lives in France. However it emerged during the oral evidence that this person had left Algeria more than ten years ago. Finally, Dr Seddon drew upon four determinations of the First-tier Tribunal where appeals had been allowed on the basis that gay men faced risk on return. We are aware that he also had regard, in reaching his conclusions, to the fact that the documentary evidence includes very brief details of a number of cases in which the respondent has recognised as refugees gay men from Algeria so that there was no need for them to pursue appeals in respect of their asylum claims. Prosecutions of gay men 19. The Algerian criminal code criminalises all homosexual acts, both private and public, although more severe penalties are available for public acts or where one participant is under 18 years of age. Dr Seddon summarises the provisions of the code as follows: 7 “Thus, according to Article 338 of Algeria's Penal Code, people who participate in homosexual acts may be punished by two months' to two years' imprisonment and to a fine of 500 to 2,000 Algerian dinars (DIN) (see Sodomy Laws 21 Apr. 2005; ILGA Apr. 2007, 6). If one participant is under 18 years of age, the punishment of the older participant can be increased to three years' imprisonment and a 10,000 DIN (see Sodomy Laws 21 Apr 2005; ILGA Apr. 2007, 6). According to Article 333, when ‘an outrage to public decency’ has consisted of an act against nature with an individual of the same sex, the penalty is punishable by a prison term of six months’ to three years’ imprisonment, and a fine of 1,000 DIN to 10,000 DIN (Sodomy Laws 21 Apr. 2005).” 20. It is unambiguously clear, however, that prosecutions for homosexual behaviour are extremely rare. Dr Seddon adopted the observations of Ms Pargeter, set out in an earlier report prepared by her, and we take him to express agreement with what she said: “… same-sex activity is illegal in Algeria and is a punishable offence; also … whilst the state imposes such legislation, it is ‘rare’ for it to prosecute people for homosexuality, largely because homosexuality is a taboo subject and is something that is kept hidden (para 11). She referred to one prosecution in 2010 – which was also reported in the media. … She explained the apparent contradictions of a situation in which homosexuality is illegal and thus not tolerated officially by the state, but where prosecutions are relatively rare, by commenting that practising homosexuals are fearful of widespread homophobia in Algerian society, and so practice secretly – living ‘an almost underground existence’. Homosexuals, she said, faced severe social stigma and in many cases, where their orientation became known, their own families disowned them, as they deemed them to have brought shame upon the family as a whole. She stated that responses ranged from mockery and isolation to outright hostility.” 21. Dr Seddon added, in his report: “Prosecutions, in this sense, are arguably, by any definition, relatively rare. Even if prosecutions are considered rare, relatively rare or very rare, however, this does not, of course, mean that criminal prosecutions do not take place, just that they do not occur ‘often’ or in ‘many’ instances.” At para 5.14 of his report, Dr Seddon assembles what information is available to him of actual prosecutions having taken place. In recent years just three were identified: i. A commentator, Mr Dan Littauer, has referred in a report that was before the last Tribunal hearing in 2012, to “a young lawyer being imprisoned and judged according to these laws” in February 2008, although no further details are given; ii. Mr Littauer referred also to a young Imam or cleric being convicted in 2008 of violation of Article 338 of the Criminal Code with a minor, although there is no evidence he had actually served a prison sentence; iii. A well-publicized case in 2010 of a gay imam being imprisoned for 2 years. The cleric was a 36 year old man charged in February 2010 and was “caught in flagrante delicto in the mosque”. However the report of that case in LGBT Asylum News, reproduced by Dr Seddon in his report, states that: 8 “The facts date back, in fact, to February when the faithful warned the police about the acts of the Imam. He will be detained and interrogated by the prosecutor and then placed in custody. Yesterday, the prosecution sought against him a sentence of ten years.” From which it appears that the Imam had not even been taken into custody. There is no subsequent report or other evidence before the Tribunal that he was ever subjected to a term of imprisonment or, indeed, ever convicted, despite being found, apparently, engaged in homosexual conduct in a mosque. Dr Seddon said in oral evidence that he had “trawled” for evidence that the Imam had been put in custody but was unable to find any. However, he said that he “strongly expected him to be imprisoned” even though there was no evidence that he was and the evidence available suggested that he had not in fact been taken into custody. Dr Seddon made no mention of that ambiguity in his report. 22. It is on the basis of this, frankly, scant and unpersuasive evidence that Mr Littauer concluded that “Articles 338 and 333 are applied regularly” and in part placing reliance on that, Dr Seddon feels able to conclude that: “So, prosecutions for homosexuality do take place, even if only rarely or relatively rarely, and those found guilty are evidently subjected to fines and/or prison sentences” 23. We are satisfied that it is unambiguously clear that the evidence that Dr Seddon identifies does not support his view that a person whose homosexual behaviour comes to the attention of the public or the authorities can expect to be prosecuted. In fact, the evidence he relies upon points the other way as there is evidence that the authorities choose not to prosecute even where there appears to be cogent evidence of behaviour of a type made unlawful by the Criminal Code. A good example of this is found in one of the four determinations of appeals allowed by the First-tier Tribunal examined by Dr Seddon in his report, which we examine below. Indeed, in two of the three examples that have been identified above, there is no reliable evidence before us that a prison sentence was served. 24. It follows from this that we are also satisfied that Dr Seddon’s view that terms of imprisonment are, in practice, applied in Algeria for homosexual behaviour is one that is simply not sustainable and, as we shall see, we can find nothing in the other evidence before the Tribunal to justify or support such a view. Sharia Law 25. In his written response to questions posed by the respondent, Dr Seddon indicated that gay men in Algeria were also at risk because Sharia law, which “effectively underpins the criminal law in Algeria as it does in all areas of the law” provided for particularly severe punishment for those found to be homosexuals. In his written report he said this: “The majority of Algerians are Sunni Muslims, and Algeria also practices Sharia’s (Islamic) law, which regards homosexuality as anathema. Homosexuality is not only a sin, but a crime against God (Allah) under Islamic law. … 9 In the Hanafi madhhab or tradition, the homosexual is first punished through harsh beating, and if he/she repeats the act, the death penalty is to be applied. As for the Shafi`i school of thought, the homosexual receives the same punishment as adultery (if he/she is married) or fornication (if not married). This means, that if the homosexual is married, he/she is stoned to death, while if single, he/she is whipped 100 times… Some scholars, basing their views on the Qur'an and various hadith (accepted commentaries), hold the opinion that the homosexual should be thrown from a high building or stoned to death as a punishment for their crime, but other scholars maintain that they should be imprisoned until death. Another view is that between two males, the active partner is to be lashed a hundred times if he is unmarried, and killed if he is married; whereas the passive partner is to be killed regardless of his marital status.” Dr Seddon set out in his report an extract from that of Mr Razi Isalam, which he quotes with approval: “The goal of the Islamic fundamentalists in Algeria is the establishment of a religious state where every aspect of life is determined by the principles of the Koran and Muslim tradition. This means the enforcement of Sharia law, where apostates, queers and adulteresses are stoned to death." 26. There are, however, formidable difficulties with that evidence. When pressed in oral evidence, Dr Seddon conceded that he was unable, in fact, to identify any way at all in which Sharia law manifested itself in the implementation of the entirely secular criminal law code. He said that his written evidence “was not well phrased” and that what he had intended to convey, as confirmed in his written response to the respondent’s questions was that: “the Sharia law effectively underpins the criminal law in Algeria as it does in all areas of the law.” We are satisfied that this also is to seriously overstate the influence of Sharia law upon the application of the criminal law. Dr Seddon accepted in oral evidence that the evidence in fact does not establish that Sharia law is applied to gay men and nor is there any reliable account, certainly in the last ten years, of a gay man being stoned to death or thrown from a high building. Such things simply do not happen in Algeria today. Instead, he qualified his evidence by saying that he agreed that Algerian Criminal law is secular and distinct. He was unable to point to any example of a gay man suffering punishment under Sharia law. 27. Having said that, we do accept that hard-line views taken by Islamic fundamentalists are not immaterial. At para 5.32 of his report, Dr Seddon provides details of one more recent example of a risk of persecution of gay men in Algeria being recognised. In 2013, eight members of the Algerian National Ballet, which was performing in Ottawa and Montreal, were recognised as refugees and granted asylum in Canada after deserting the tour and seeking protection on the basis that they had been threatened by Algerian Islamists who “equated ballet with homosexuality and depravity”. It might be noted that the reports available do not assert that the dancers were in fact gay men, just that the men claiming asylum in Canada said they had received threats from Algerian Islamists who “equate ballet with homosexuality”. Also, as with the case of the Iman found having sex with a youth in the mosque, we consider that this was regarded as a 10