"The grounds disclose that the Immigration Judge may have made errors of law for the arguable reasons given in the application."
"From the above I understand that MK left Albania because she was persecuted because of the fact of being homosexual, and that since coming to the United Kingdom she has 'come out' as a homosexual and identified herself with the homosexual community."
"We were sitting in a park when two police vans pulled over. The officers got out of the van and dragged us away. One of the drivers came over to me and kicked me repeatedly, his boot hitting my stomach. When I begged him to stop, he just shouted 'shut up you faggot', and continued kicking me."
"However, there is a lack of monitoring, evaluation and follow-up of these programmes. This is an important shortcoming since it impairs their assessment and future improvement"
"As in previous years, NGOs claim that police targeted the homosexual community for abuse. According to the Albanian Gay and Lesbian Association, the police arbitrarily arrested homosexuals and then physically and verbally abused them while they were in detention. The Albanian Human Rights Group reports that during the year police harassed members of the Albanian Gay and Lesbian Association and other known homosexuals, sometimes searching their homes without a warrant."
"With a transition to a market-based economy, many of the principles of equality enforced during communism have lost strength, employment is no longer guaranteed. In addition, more women than men lost their jobs during structural adjustment, and formerly state-owned assets were generally granted to men. As a consequence, women increasingly depend on their husbands and extended families for survival (….) Women have more limited access than men to assets that could help them earn a living, adding to their vulnerability. For example, women face discrimination in owing property and in starting a business. Even gaining access to credit could be difficult for women, not for legal reasons but because banks prefer lending to men."
"However, allegations of ill-treatment of suspects by police during arrest or questioning are still frequent. There has been little progress on application of basic safeguards against ill-treatment during pre-trial detention, such as access to a lawyer and doctor and notification of detention to relatives. Prosecutions for ill-treatment do not always make reference to an appropriately serious offence. Legislation setting criteria for compensation to victims is not yet in place. Amendments to the law on the rights and treatment of inmates are delayed. The Code of Ethics for the prison system is not always followed. Training for business staff on the European Convention on Human Rights is needed. The Supervisory Commission for the Execution of Imprisonment Sentences, which is intended to advise the Minister of Justice on enforcement issues and protection of the rights of prisoners and detainees, is still not operational. Cases of arbitrary arrest in the street of homosexuals by the police still occur."
"…LGBT persons have a very difficult relationship with their families: these relations are insincere or aggressive. They have the same kind of relations with their relatives or social circles. The LGBT persons are afraid that admittance of their sexual orientation to their families may ruin their relations with the other members of the family. They believe that this may be followed by extreme measures by their family members, such as psychological and physical violence, a severe control on their lives; meanwhile most of them live within the family. There have been cases of LGBT persons forced by their family to get married without their consent or even cases of persons kicked out of the house and disinherited. So the relations of the LGBT persons with their families are relations filled with fear. Fear prevents these persons from having an open and sincere relationship with their families. The fear also causes inferiority complexes and a low degree of awareness and self-esteem that conditions their whole life, as well as the life of persons related to them."
"As it seems to me there is now a broad international consensus that everyone has the right to respect for his private life. The person's private life includes his sexual life, which thus deserves respect. Of course no person has the right to engage in interpersonal sexual activity. His right in this field is primarily not to be interfered with by the state in relation to what he does in private at home, and to an effort by the state to protect him from interference by others. That is the core right. There are permissible grounds for state interference of some person's sexual life – e.g. those who most easily express their sexual desires in sexual activity with small children, or those who wish to engage in sexual activities in the unwilling presence of others. However, the position has not been reached that criminalisation of homosexual activity between consenting adults in private is not regarded by the international community at large as acceptable. If a person wishes to engage in sexual activity and lives in a state which enforces a criminal law prohibiting such activity, he may be able to bring himself within the definition of a refugee. That is one end of the continuum. The other end of a continuum is the person who lives in a state in which such activity is not subjected to any degree of social disapprobation and is free to engage in it as he is to breathe. In most states, however, the position is somewhere between these two extremes. Those who wish to engage in homosexual activity are subjected to various pressures to discourage them from so doing. Some pressures may come from the state, e.g. state subsidised advertising or teaching to discourage them from their lifestyle. Other pressures may come from other members of the community, without those members being subjected to effective sanctions by the state to disclose them. Some pressures are there all the time. Others are merely spasmodic. An occasional interference with the exercise of a human right is not necessarily a persecution. The problem which increasingly faces decision-makers is when to ascribe the words 'persecution' to those pressures on the continuum."
"… will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for "discretion" before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether "discretion" is something that the appellant could reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to "matters following from, and relevant to, sexual identity", in the wider sense recognised by the High Court of Australia (see the judgment of Gommow and Hayne JJ at para 83) [5395/002 [2003] HCA 71 ]. This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the "discretion" which they may feel constrained to exercise as a price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that are "related to or informed by their sexuality" (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence."
"The question that will be before the AIT on remission will be whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gommow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB [(Iran) CG[2005] UKAIT 00117 ]. The Tribunal may wish to consider whether the combination of these two circumstances may have an affect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."
"We take as out starting point that when assessing whether a person who is a homosexual would face risk of persecution or serious harm on return to his own country we must take a factual, not a normative, approach. That is to say we must focus on the factual issue of how it is likely he will behave given the evidence we have about how and why he has behaved up to now. It is wrong for a decision-maker to apply a normative approach which focuses on how it is thought an applicant should behave. However, we take from the way in which the Court of Appeal has formulated its questions that in examining how such a person will behave we have to examine whether that will entail for him having to live a life which he cannot reasonably be expected to tolerate because to do so would entail suppression of many aspects of his sexual identity. We are confident that when referring to what an appellant can "reasonably be expected to tolerate" the Court of Appeal had in mind an objective, not a subjective test."
"Whether the issue whether an appellant can reasonably be expected to tolerate his personal or family circumstances if he is returned to his country of nationality is more appropriately considered under the Asylum Convention or under Articles 3, and more particular 8, of the European Convention on Human Rights is something that it is unnecessary to decide. So far as the Asylum Convention is concerned, however, I would place emphasis on paragraph 11 of Maurice Kay's judgment and the requirement of persecution."
"To compel an individual to disown his origins interfered with the fundamental rights. If the consequences of exercising the right to declare your race would lead others to subject you to severe ill-treatment, the consequences would be discrimination on the grounds of race, and persecution."
"However, whether feared ill-treatment is sufficiently grave to amount to persecution has to be seen in the context of each individual case. Gender is an important component of that context. The San Remo Round Table concluded that there was no need to add sex or gender to the Convention grounds, because "the text, object and purpose of the Convention require a gender-inclusive and gender-sensitive interpretation". (See Feller, Turk and Nicholson, op cit, Chapter 5.2, "
"In my judgment the test stated in paragraph 16 of the judgment of Maurice Kay LJ in J, by reference to S395/2002, [2003] HCA 71 , complies with the standard required by the Refugee Convention. We are, in any event, bound by it. It is an appropriate and workable test. It was sufficiently stated by the Tribunal at paragraph 39, recited at paragraph 17 above. In reaching their conclusions, the Tribunal in HJ plainly understood the test. They considered the evidence with great care and in detail. They applied the test to the evidence and the facts as they found them to be. I cannot accept the submission that the findings at paragraph 42 were perverse. They were findings the Tribunal were entitled to make on the evidence. Their conclusion that HJ could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case, considered in the context of the in-country evidence. "
"I would dismiss the appeal of HJ on that ground but add comment on the relevance in cases such as this of the views about homosexuality and its practice held and emerging from the in-country evidence in a particular state. The need to protect fundamental human rights transcends national boundaries but, in assessing whether there has been a breach of such rights, a degree of respect for social norms and religious beliefs in other states is in my view appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is reasonably tolerable in a particular society, the fact-finding Tribunal is in my view entitled to have regard to the beliefs held there. A judgment as to what is reasonably tolerable is made in the context of the particular society. Analysis of in-country evidence is necessary in deciding what an applicant can expect on return and cannot, in my view, be ignored when considering that issue. "
"In Amare v Secretary of State[2005] EWCA Civ 1600 Laws LJ, with whom Mummery LJ and Wall LJ agreed, stated, at paragraph 31: "
"Refugees come from the North in search of a better life, but they are (sic) never expected such unbridled freedom. They cannot adjust to this reality; they have other habits, they have lived differently"
"Whether singling out Communist prisoners for assault (and no doubt other types of prisoner too) is systemic or endemic or sporadic, it necessarily represents an initial failure of protection on the part of the state. If so, the critical question - adopting Lord Hope's approach - will be whether what the state does to stop it happening reaches a practical standard appropriate to the duty it owes all of its citizens. If discriminatory brutality is found to be too widespread to be written off as delinquent activity of the sort that could occur in any system, the paradigm will shift away from the Horvath end of the spectrum towards the less explored class of state agents who take advantage of their power but do not act on behalf of the state: in ordinary parlance, a police force whose members are out of control. Even in such a context a practical standard of protection does not require a guarantee against police misconduct, but it does, as Professor Hathaway says, call for timely and effective rectification of the situation which is allowing the misconduct to happen. For reasons given earlier in this judgment - essentially because it has a different starting point - this is a different model of protection from that which on authority is called for by the Convention when the source of the fear of persecution is people whom the state has to police but who themselves do not deploy or therefore abuse the state's own power. How different will depend on the state of affairs disclosed by the evidence."
"We disagree, at least insofar as this argument is directed at the meaning of persecution, rather than the requirement under the 1951 Convention to show a convention ground or reason. The meaning of persecution is set out in Reg 5 of the 2006 Protection Regulations and (we repeat) in terms which in our view can be taken broadly to mirror that which has been accorded by the UK courts and this tribunal (and its predecessor) since Horvarth [2000] Imm AR 552 (HL). Given that persecution must be seen, therefore, as harm in the form of severe violations of basis human rights, it could only be right "as a matter of principle" to exclude claims based on forced subsistence in an IDP camp if human rights law precluded it. But, as we shall go on to explain, human rights law does not preclude it. Albeit holding that claims for protection against refoulement based on dire socio-economic circumstances are normally not decisive when considering Article 3 ill-treatment, the Strasbourg Court has not excluded that in certain extreme circumstances, such circumstances could give rise to a violation of a nonderogable right: see below paras 86-88. Further, as has been made clear by the Court on many occasions (e.g. in Kalashnikov v Russia[2002] ECHR 596 ) and by UK courts and the Tribunal, for ill-treatment to arise under Article 3, it does not necessarily have to be intentional or deliberate: see R (On the application of Adam) v Secretary of State for the Home Department[2005] UKHL 66 ; [2006] 1 AC at [55]. Hence, whilst there will always be heavy factual obstacles in the way of a finding that socio-economic circumstances can constitute persecution, there is no reason of principle why a claim of this kind cannot succeed. "
"As the Attorney-General pointed out, decisions of the European Court of Human Rights, typically O'Rourke v United Kingdom (39022/97,23 June 2001 ), make it clear that the state's failure to provide shelter does not by itself amount to inhuman or degrading treatment. But, as he himself accepted, it does not follow that in a case of sufficiently acute individual need – perhaps, as suggested in argument, that of a person who is not only destitute but blind - no positive obligation can arise; and such cases as D v United Kingdom(1997) 24 EHRR 423 clearly establish that a breach of the constant negative obligation can occur where an affirmative act of the State is such as to result, indirectly, in inhuman or degrading consequences for the individual."
"Destitution is an emotive word, and it might be argued that denying support to the destitute is necessarily inhuman and degrading treatment. Such an argument has not been advanced before us, and for good reason. Mr Blake has accepted that there is a margin between the condition that renders an asylum seeker destitute for the purposes of the Asylum Support Regulations, and section 95 of the 1999 Act, and the condition to which an individual must sink before he can contend that he is a victim of a breach of Article 3. As to the former, an individual will, by virtue of section 95(3), be deemed to be destitute if his living accommodation is not adequate and the regulations provide for a minimum sum of money or money's worth which must be provided by way of subsistence. The degree of degradation that must be demonstrated to engage Article 3 falls significantly below this definition of destitution. This can be illustrated by reference to the decision of the Strasbourg Court in O'Rourke v United Kingdom. The applicant was evicted from temporary accommodation provided for him when he came out of prison. He lived on the streets, to the detriment of an asthmatic condition and a chest infection from which he suffered. The Strasbourg Court held that this experience did not attain the requisite level of severity to engage Article 3."
"Running through these three recent cases is a recognition by the Strasbourg court that, while the Contracting States are obliged to protect those from other jurisdictions who can show that for whatever reason they will suffer persecution or are at real risk of death or serious ill-treatment or will face arbitrary detention or a flagrant denial of a fair trial in the receiving country, limits must be set on the extent to which they can be held responsible outside the areas that are prescribed by articles 2 and 3 and by the fundamental right under article 6 to a fair trial. Those limits must be seen against the background of the general principle of international law that states have the right to control the entry, residence and expulsion of aliens. In N v United Kingdom a distinction was drawn between civil and political rights on the one hand and rights of a social or economic nature on the other. Despite its fundamental importance in the Convention system, article 3 does not have the effect of requiring a Contracting State to guarantee free and unlimited health care to all aliens who are without a right to stay within its jurisdiction. In F v United Kingdom, an article 8 case, a distinction of a different kind was drawn. On the one hand there are those guarantees which, as they are of fundamental importance, must always be rendered effective in practice. On the other there are the qualified rights of a civil or political nature which, on a purely pragmatic basis, the Contracting States cannot be required to guarantee for the rest of the world outside the umbrella of the Convention."
"In adopting and endorsing the test formulated by the AIT in Devaseelan I did not in para 24 of my opinion in Ullah[2004] 2 AC 323 understand that tribunal to be distinguishing a "flagrant denial or gross violation" of a right from a complete denial or nullification of it but rather to be assimilating those expressions. This was how the point had been put to the House by the Attorney General for the Secretary of State, as is evidenced from the report of his argument (p 337D): "
"Police actions turn to be "homophobia" 2004 International Labour Organisation: Employment Policy Review, Albania26 February 2004 Law "