United Kingdom: Upper Tribunal country guidance on persecution risk to same-sex oriented males in India

Monday, February 24, 2014

In MD (same-sex oriented males: risk) India CG[2014] UKUT 00065 (IAC), signed on 26 January 2014, the Upper Tribunal sets out country guidance on the risk to homosexuals returned to India. The guidance arises out of an appeal by a homosexual male from India who applied in the UK for refugee status in 2007, fleeing inter alia police beatings for alleged prostitution. The refusal of his application in the First-tier Tribunal was successfully appealed in light of the UK Supreme Court decision in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department[2010] UKSC 31, which clarified the law on the relevance of risk-reducing concealment of sexual orientation. His case was remitted to the Upper Tribunal, which set aside the legal analysis of the First-tier Tribunal, preserved the initial findings of fact and credibility, and certified the case for country guidance.

The hearing for the country guidance was delayed pending the Indian Supreme Court’s December 2013 decision in Koushal and another v Naz Foundation and Others (Civil Appeal No. 10972 of 2013), which upheld as constitutional section 377 of the Indian Penal Code of 1860. This is the provision in Indian law which criminalises same-sex sexual activity even in private.

The Upper Tribunal’s country guidance indicates that though section 377 is still in force, prosecutions under this section are and have always been ‘extremely rare’. In addition, ‘some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory’.

The guidance also states that ‘Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow … It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India. … India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities’.

The Upper Tribunal dismissed the appeal on all grounds, and concluded that it would be proportionate to require the appellant to return to India to make an application for entry clearance.

Read the judgment of the Upper Tribunal.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

Country of origin information
Sexual orientation