HJ (Iran) v Secretary of State for the Home Department
[2010] UKSC 31
Ratio Decidendi
A gay asylum seeker cannot be refused asylum on the basis that they could avoid persecution by concealing their sexuality. The right to live freely and openly as a gay person is protected. The 'discretion test' (expecting a person to be discreet about their sexuality) was rejected.
Facts
Two gay men from Iran and Cameroon sought asylum in the UK, arguing they would face persecution in their home countries because of their sexuality. The Home Secretary argued they could avoid persecution by being discreet about their sexuality.
Judgment Summary
The Supreme Court unanimously held that the 'discretion reasoning' was wrong in principle. A person's sexual identity is a fundamental right. If a person would live openly as gay in the UK, they should not be returned to a country where they would have to conceal their sexuality to avoid persecution.
Key Quotes
"To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny him his fundamental right to be who he is."
— Lord Rodger
"Male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates."
— Lord Rodger
Subsequent Treatment
Leading authority on asylum claims based on sexual orientation. Applied internationally and cited by other Supreme/High Courts worldwide.