“ … The Secretary of State accepts that Jamaica is an extremely homophobic society; and that for a person to be openly gay in Jamaica would attract a real risk of persecution .” 24. In a letter served early on the morning of the hearing, Mr Scott Richardson, who has conduct of the appeal for the Treasury Solicitor, narrowed that concession to: “… The Respondent accepts that Jamaica is a deeply homophobic society; and it is likely that a woman who behaves on return to Jamaica in a manner that is openly gay might attract adverse attention. However, there is no evidence that lesbians generally face serious ill-treatment in Jamaica. … 8. Further, the Respondent certainly never intended to go further (by way of concession) than that established for Jamaican gay men in DW , where the AIT held: [77] “… A man who is not thought to be homosexual, perhaps because he has hidden his sexuality, is not likely to be at risk. There will be no perception of homosexuality and no history” and concluding - [79] “… A man who is perceived to be homosexual and, as a consequence, has suffered past persecution is, unless there has been a material change in his circumstances, likely to be at risk of persecution … A man who is perceived to be homosexual but has not suffered past persecution may also be at risk depending on his particular circumstances including, for example, the extent to which it is believed he suffered threats before departure and how he will behave on return .” [ Emphasis added]” 25. In addition, and on advice, Ms Alice Holmes, the Senior Presenting Officer (with Counsel’s advice) clarified the concession which the respondent wished to make on sufficiency of protection for lesbians in Jamaica: “[During the hearing] …the Secretary of State conceded that, if a real risk of treatment amounting to persecution were to be established, that there would be no sufficiency of protection. …SIJ Gleeson asked if this could be confirmed by fax before the end of the day. I now write to confirm this, noting what is said in the Secretary of State’s Operational Guidance Note at paragraph 3.7.16 - “Where a lesbian is able to establish a real risk of treatment amounting to persecution or Article 3 treatment, sufficiency of protection cannot be relied on.” 26. The respondent’s primary contention was that there was no evidence that lesbians generally faced a real risk of serious ill-treatment in Jamaica, despite the admitted risk of “adverse attention” to open or perceived lesbians. Preserved factual findings 27. Having regard to the application of the higher civil standard of proof, and after discussion with the parties, the following factual findings were treated as preserved: (i) The appellant is a lesbian and a Jamaican citizen; (ii) The appellant came to no direct harm in Jamaica before coming to the United Kingdom, enjoying a discreet social life with other lesbian women and several covert lesbian relationships. In particular, the single incident at a nightclub on which the appellant relied did not lead to any actual harm to her or any of her discreet lesbian companions; (iii) In Jamaica, the appellant had the support of her brother and her former boyfriend. (iv) Her employer had discovered her discreet lesbianism and that had caused no difficulty; (v) The appellant has now experienced several open lesbian relationships in the United Kingdom, none of which amounted to family life within the meaning ofArticle 8 ECHR ; and that (vi) The appellant is educated, sophisticated and articulate. 28. To that may be added the appellant’s professional position as a recently qualified accountant, and her physical appearance. She attended the Tribunal and we were able to see that her style of dress was feminine rather than ‘manly’, and her skin is fairly dark. 29. The areas where negative findings were made and the Tribunal needs to remake any relevant part of the factual matrix were: (a) the freedom with which the appellant had been able to express her lesbian orientation in Jamaica before coming to the United Kingdom, and the bearing that had on her likely ability to express her lesbianism openly on return; (b) the relevance of her personal appearance to any risk related to perception of lesbian orientation; (c) whether it was reasonable to expect her to return to living as a discreet lesbian in Jamaica; and in general, (d) The risk on return and the adjustments to her lifestyle which the appellant might have to make to achieve safety. 30. Points (c) and (d) are now questions of mixed fact and law. Point (b) was not pursued at the hearing or in any of the skeleton arguments or submissions. Evidence of appellant and her girlfriend 31. For present purposes, the following are the relevant features of the factual matrix. The appellant is a lesbian from Jamaica who, while in Jamaica, lived with her grandfather, had three boyfriends (one of whom remained a good friend) and a number of discreet lesbian relationships brokered through an internet chatroom specific to lesbians called ‘Women for Women’ (W4W). She came to no harm by reason of her sexual orientation while in Jamaica. Most of her relationships were conducted at night in discreet places; she had a long relationship with the wife of a pilot who was often conveniently away, on that basis. 32. On three occasions, W4W organised outings to bars. On the third, they were identified as possible lesbians because they were dancing together rather than with men, and the DJ began playing openly hostile popular songs (of which there are many in Jamaica), while the men in the bar began offering to ‘sort them out’ in a manner which made it quite plain that they were considering rape. The women left the bar rapidly, and fortunately the men did not pursue them. 33. The appellant took a number of holidays with her two sisters in the United States, where there was more freedom, returning to discreet lesbianism in Jamaica each time, but suffered clinical depression and stress, the reason for which she was unable to disclose to her male doctor. 34. In 2003, the appellant came to the United Kingdom as an accountancy student, a qualification she has now obtained. She also came out as a lesbian, and has had a series of fairly short but intense lesbian relationships with women here, two of whom have been prepared to give evidence at her asylum hearings. The appellant has been a member of Black Lesbians UK (BLUK) and has also taken part in a Gay Pride march. 35. For a time in the United Kingdom, the appellant lived in a house with two Jamaican men, without difficulty until she brought a girlfriend home for the weekend. There was a row: one of the men smashed all the crockery on the basis that the appellant had polluted it and thereafter she had to buy and use separate crockery. She never brought a girlfriend home overnight after that, but stayed a further five months in the flat because, on reflection, she considered that there was sufficiency of protection for lesbians in the United Kingdom, and further, that due to the precarious immigration status of at least one of the men, they would not risk her calling the police. 36. The appellant has since been dispersed by NASS to Stoke on Trent. She does not feel at risk there or indeed anywhere in the United Kingdom, because there is legal and police support here. She finds it rather dull and tends to meet her girlfriend in London rather than Stoke, where they go to bars, out to dinner, and dancing together and with other friends. She stays in with her girlfriends too, just watching television and being normal. She meets their families and has no difficulty being accepted for who she is. 37. The appellant was adamant that if returned to Jamaica she would not resume living discreetly, because after six years (now over seven years) she was not the same person; she would also not be prepared to risk her depression returning. For both those reasons, the appellant would only date someone who was prepared to be seen with her in public, whatever the risks, on the same basis as in the United Kingdom. 38. When it was put to her on behalf of the respondent that there existed no other open lesbians in Jamaica with whom she could enter into a relationship, that did not change her view. The appellant was asked in cross-examination whether she would be discreet if she were on a brief holiday in Saudi Arabia with a girlfriend (though why she might contemplate going there was unclear), or walking on a beach in the United Kingdom where there had recently been a homophobic attack. In both cases, the appellant stated that she would still behave openly, mentioning the sufficiency of protection in the United Kingdom in relation to walking on a beach where there had been a recent homophobic attack. 39. The appellant and her current girlfriend both said that if she was returned that would end their relationship, since the appellant would not expect her girlfriend to travel to such a dangerous place, and the girlfriend would not go, particularly as she has a young child to consider. Mr Sobers’ evidence 40. Again, Mr Sobers’ evidence is set out in full in Appendix A to this determination. For present purposes, there were three areas of his evidence which we need to consider. 41. Mr Auburn for the respondent argued that Mr Sobers was not impartial, and that was put to him in cross-examination. Mr Auburn pointed out to Mr Sobers that he was a lifelong human rights campaigner who now did not live in Jamaica as a result of death threats received in 2001, and whose articles in the ‘Jamaica Gleaner’ newspaper criticised the Jamaican government in vigorous terms incompatible with impartiality as a witness. Mr Sobers responded that his human rights career did not mean he could not give impartial evidence: indeed, the Jamaican government had thought sufficiently highly of him to appoint him a judge, and the UKBA Country of Origin unit had asked him for input to the Country of Origin Report on the question of gang violence, at short notice. That report, which was in our bundle, did not deal with homosexuality, but that does not appear to have been part of his remit. As to the death threats, Mr Sobers returned regularly to Jamaica for professional reasons, and also to visit his mother who still lives there, and again, he did not consider that those threats removed his ability to assist the Tribunal on the questions now before it. 42. Mr Sobers gave evidence on the position of women in Jamaican society. They were expected to become sexually active very young, with children coming along as no surprise, but only 20% of women ever married. Women were expected to have men around, or children by them, or both, until late in life. Mr Sobers described this as presenting or having a ‘heterosexual narrative’. 43. If a woman did not present a heterosexual narrative in that way, there would be concern, but while she was still a student, or looking after an elderly relative, and was still young and thus not yet ‘settled’ in her life, people would not necessarily draw adverse conclusions about her sexuality. However, that protection was unlikely to outlast her twenties (Mr Sobers’ evidence was not precise on this point) and as a woman became older, if she was living alone with no man ‘buzzing around’ and no children, suspicions would be raised. 44. Mr Sobers explained that Jamaican hostility to homosexuality arose in part from a literal interpretation of passages in the bible at Leviticus 18:22 (‘Thou shalt not lie with mankind, as with womankind: it is abomination’) and/or Leviticus 20:13 (‘If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death. Their blood shall be upon them’). The situation was compounded by the slave heritage in Jamaica, and the breeding of child slaves from female slaves. There was a persistent myth in Jamaica that lesbians could be ‘cured’ by raping them which was often referred to in popular songs and on occasion acted out by men. 45. Mr Sobers also explained that Jamaica was a gossipy community where a woman new to an area might well be asked questions about her family arrangements, but equally, local people might draw conclusions without asking those questions, based on her behaviour. It was quite possible to be heterosexual and to be thought homosexual if no men were ‘buzzing around’ and the woman had no children. Mr Sobers gave the example of a goddaughter of his, in her early 20s, who was already causing her relatives concern because she had no interested men or boyfriends. This part of his evidence became rather confused in cross-examination but the thrust of his evidence was clear. 46. When asked about the consequences of being a lone woman, Mr Sobers said that there would naturally be approaches from local men if a woman did not appear to have a man or men friends. The reaction if a man was rebuffed was unpredictable: if the woman was lucky, he might shrug it off, but if not, the response could be extremely violent. The man might also start rumours of lesbianism leading other men to attack the appellant or commit ‘corrective’ rape. 47. Mr Sobers identified a reduced risk for what he called the social elites: wealthy, professionally educated, light skinned people from ‘known’ families, living for the most part in gated communities where they could control what was known of their comings and goings. Such people if they were gay were not absolutely safe but they were certainly safer than the rest of the lesbian, gay, bisexual and transsexual (LGBT) community. The appellant, despite her new accountancy qualification, was not a member of that group and her salary would not even cover the mortgage on the properties in those communities. His understanding was that she was not from a known family, nor particularly highly educated. Only the very richest most senior accountants would become part of the elite, if they were not from a known family. Submissions 48. After the oral evidence had been taken, it was agreed, given the lateness of the hour (just before 4 pm) that the parties would make written submissions, to supplement the skeleton arguments they had filed. In November 2010, the Upper Tribunal relisted the appeal to enable the parties to make any additional oral submissions but both parties elected to rely on the documents, evidence and submissions already provided, which at this stage included an HJ and HT submission by Mr Chelvan for the appellant. The respondent did not make any additional submissions in the light of HJ (Iran) although she was given the opportunity (and an extension of time) to do so. 49. We now summarise the legal and evidential submissions the parties made, to the extent to which they remain relevant to the issue of the risk on return to Jamaica for lesbians. Respondent’s submissions 50. Mr Auburn’s arguments both before and after the hearing were based exclusively on HJ (Iran) since the respondent did not take the opportunity to make further submissions based on the new test set by the Supreme Court in HJ and HT . Much of the respondent’s factual and legal argument falls in the light of that judgment. 51. For the respondent, the main passages in Mr Auburn’s skeleton argument are found at paragraphs 11-16: “11. The respondent agrees that the relevant inquiry concerns how the appellant will in fact behave if returned to Jamaica. … 14. The respondent acknowledges the relevance of perception. The issue of perception is closely related to the issue of discretion. The respondent’s case is that as a matter of fact the appellant will conduct her personal/romantic affairs in a discreet manner. If she does so then this is fundamental to how she is likely to be perceived by the general public. 15. It is more appropriate to address this issue further after the evidence, rather than before. 16. [How A will behave on return] is a question of fact which will be addressed after evidence.” 52. The respondent acknowledged that lesbians faced an increased risk of discrimination in Jamaica, but noted that lesbianism was not unlawful and asserted that an internal relocation option existed should difficulties occur. That position was reflected in the December 2009 Country of Origin Report and in the then current Operational Guidance Note, which has subsequently been substantially revised in the light of HJ and HT . The latest version of the Operational Guidance Note was issued on3 May 2011 . 53. In relation toArticle 8 ECHR , Mr Auburn argued that this was a ‘foreign’ not a ‘domestic’ private and family life case and relied on the human rights element of the respondent’s original letter of refusal. He relied upon the European Court of Human Rights decision in F v United Kingdom (Application no. 17341/03)[2004] ECHR 723 , an admissibility decision in which the court stated that “on a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention.” 54. Mr Auburn contended that if returned, the appellant would in all likelihood live in Jamaica discreetly; that if she did so she would not be at a real risk of persecution; and that doing so would be reasonably tolerable. On that basis, he submitted that the appeal should be dismissed. 55. On5 December 2009 , Mr Auburn produced a supplementary skeleton argument dealing with the concession question and the ‘reasonably tolerable’ point which has now been settled by the Supreme Court in HJ . Nothing in the supplementary skeleton remains relevant to the country guidance issue. 56. In Mr Auburn’s closing submissions, after setting out the factual background and relevant law, he analysed the evidence of Mr Sobers, arguing that while he was ‘an impressive individual in his work and career’, Mr Sobers could not properly be put forward as an impartial expert upon whose opinion evidence the Tribunal could rely, in the light of his long career as a human rights activist and campaigner, his vigorously expressed criticism of the Jamaican government, in language such as to call into question his objectivity, and the death threats he received in 2001, as a result of which he no longer lived in Jamaica, which Mr Auburn submitted must also have made it impossible for him to be objective about Jamaican government and society. Mr Auburn relied on paragraph 18.145 of Macdonald’s Immigration Law and Practice (7 th edition, 2008) , in particular the following passage: “ In Slimani , a starred Tribunal approved the guidance given in The Ikarian Reefer that to be relied on, the expert needs to provide independent assistance to the Tribunal, must not assume the role of an advocate, and needs to specify the facts on which his or her opinion is based...” 57. Mr Auburn contended that no weight should be given to the evidence Mr Sobers had given, by reason of his partiality and his failure to appreciate that partiality. In the light of that partiality, even having regard to Mr Sobers’ extensive knowledge of events in Jamaica, that the Tribunal could not have confidence that he had presented a full and balanced picture, rather than selectively emphasising facts which supported his position, omitting those which did not. 58. Mr Auburn contended that Mr Sobers ought to have disclosed his previous contribution to the Country of Origin Report on Jamaica and that his failure to comment on gay and lesbian matters in that commentary was unexplained, which the Tribunal ought to find unsatisfactory. Mr Sobers’ evidence on LGBT matters should be regarded as inconsistent with the other country evidence and with the appellant’s own experience before coming to the United Kingdom. Mr Auburn pointed to the lack of harm occurring to the appellant and her lesbian friends during the period when she lived in Jamaica. 59. Mr Auburn submitted that when she last lived in Jamaica, during her late teens and twenties, her three brief male relationships and lack of regular male visitors did not amount to a ‘heterosexual narrative’, yet she had not come to any harm and nor had her friends, none of whom had male partners. 60. Mr Auburn asked us to dismiss Mr Sobers’ evidence that there was a risk of perceived lesbianism causing difficulty even for a woman who did not have a homosexual orientation, on the basis that there was nothing in the country evidence put forward to support that contention. He argued that press reports of harm to women who were lesbians should be regarded as instances of Jamaica’s high general crime rate or the facts having emerged locally. He noted that the appellant had apparently been preserved from enquiry by living down a long drive and with her grandfather, and further, that after returning from her trips to the United States, there did not appear to have been any fresh local enquiry as to her sexuality. 61. Mr Auburn criticised the validity of Mr Sobers’ observations in relation to the appellant’s likely behaviour on return, on the basis that he was not in a position to comment as to whether she would have female visitors only, or a mixture of males and females, and if so how many. Mr Auburn argued that Mr Sobers’ lack of knowledge in these respects would impair his assessment of how she would be perceived on return, and the level of risk entailed. 62. Mr Auburn asked the Tribunal to treat parts of the appellant’s evidence as lacking in credibility. The Tribunal should not credit the appellant’s evidence in response to the hypothetical questions which he had put to her (strolling along a British beach arm in arm with her partner at a spot where she was informed there had been a recent homophobic attack, or a brief stopover with a lesbian partner in Saudi Arabia) and should find that the appellant would, if truthful, have said that in those circumstances she would exercise discretion, in the light of the risk to her from any alternative conduct. 63. The Tribunal should also reject the appellant’s account of the broken crockery incident. She had chosen to live in a council house with Jamaican men, despite the risk they posed in the light of her lifestyle, and she continued to live there even after their reaction to her bringing a woman home overnight. Further, the appellant had not mentioned this incident when interviewed in August 2008, just four months after it occurred. 64. Mr Auburn’s submissions on the law come to this: that although an open lesbian may attract adverse attention in Jamaica, such attention was not at a level which engaged international protection, in that there is no consistent pattern of ill-treatment. On the facts, the Tribunal should find that the appellant would return to living discreetly, despite her evidence to the contrary; in her asylum interview she had asserted a fear of people finding out about her sexuality in Jamaica; she had stated that she would not take her present partner to Jamaica because they would not be able to have a relationship in public; and that in any event, there were no other open lesbians in Jamaica with whom she could have a relationship. 65. If the Tribunal felt it necessary to deal withArticle 8 ECHR in the ‘domestic’ sense, despite Mr Chelvan’s indication that no such argument was relied upon, Mr Auburn noted that the relationship in which the appellant currently was involved was a very short-lived one and had been commenced at a time when the appellant’s status in the United Kingdom was tenuous. 66. The appellant had exercised discretion while previously in Jamaica, largely because the cultural intolerance of homosexuals, but partly because of the need to respect the privacy of her married lover. 67. Mr Auburn accepted that the broader country evidence from newspapers, human rights organisations and so on in the background bundle did indicate the existence of attacks on lesbians in Jamaica, but he contended that they were infrequent, and that there was often no explanation why the incident had occurred or whether it related to the raising of a perception or suspicion in the local community, or a particular incident as a result of which an individual was labelled as a lesbian, rather than the overall very high crime rate in Jamaica. He contended that there was no clear understanding of the process by which individual lesbians might come to adverse attention. He relied on the Tribunal’s analysis in DW as set out in the judicial head note: “Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given. ” 68. Where there had been no past persecution, the effect of DW was that the risk on return for any actual or perceived homosexual was a question of fact for the Tribunal. That analysis, contended Mr Auburn, was applicable also to lesbians, and on these facts, the present appellant had not demonstrated a real risk of persecution or serious harm on return. Therefore, there was no need to address the internal relocation question for this appellant. Even in cases where a lesbian appellant was able to establish a real risk of persecution or serious harm in her home area, Mr Auburn contended that internal relocation within Jamaica would assist her. Mr Auburn asked the Tribunal to reject Mr Sobers’ suggestion that in these days of modern communication, internal relocation was less effective, and also his reliance on the general high crime rate in Jamaica. 69. On the question of internal relocation, which was not settled in DW , Mr Auburn argued that there was no evidence in the country materials about lesbians whose problems had followed them to another area after internal relocation and that if such evidence existed, the Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG) or other human rights groups would have mentioned it. 70. In conclusion, Mr Auburn contended that there was no evidence of the existence of any other open Jamaican lesbians with whom the appellant could have an open relationship. The danger to discreet lesbians was of “isolated and infrequent incidents which fall short of the threshold for persecution”
“ Lesbians 19.28 An article in Women’s E-News on the plight of lesbians in Jamaica reported that women who step outside societal norms by dressing in ‘too manly’ a style or having few male visitors, for example - risk threats of verbal and physical abuse. Women have reportedly been raped, beaten, murdered and forced out of their homes or jobs simply for being lesbians. (Women’s E-News, ‘Lesbian Activists in Jamaica Tell Horror Stories’),3 September 2005 … 19.29 The Guardian reported that: “The lesbian experience is neither better nor worse but certainly different [than the gay male experience]. ‘The abuse against women is a bit more subtle,' says one lesbian who did not wish to be named. 'There's the rape that you probably never report. The beating from the boyfriend twice removed who's just heard that you're lesbian and has come to whoop your arse;…” 19.30 Lesbians in Jamaica have also faced forced evictions from the communities they live in. In April 2007, residents of the McGregor Gully community in East Kingston gave gays and lesbians two weeks notice to move out or “or suffer the consequences.”
“Hang chi-chi gal [lesbians] with a long piece of rope." … 99. The disputed Operational Guidance Note was revised and reissued in January 2011, and again on3 May 2011 . The guidance to caseworkers on behalf of Country of Origin unit now reads: “3.7.6 Conclusion . … 3.7.7 In general the Jamaican authorities do not provide gay men, lesbians and bisexuals or those perceived as such with effective protection. There are also likely to be difficulties in finding safety through internal relocation. The law provides for freedom of movement within the country and Government generally respects this right in practice. However, in the case of DW (Homosexual Men; Persecution; Sufficiency of Protection) , it was found that in a country like Jamaica, where homophobic attitudes are prevalent across the country, it would be unduly harsh to expect a gay man or someone who is perceived as such to relocate. In addition, the Supreme Court in the case of HJ (Iran) made the point that internal relocation is not the answer if it depends on the person concealing their sexual orientation in the proposed new location for fear of persecution. 3.7.8 If there is a real risk that a gay man, lesbian or bisexual sexual relationship or those perceived as such, has, or will, become known, the applicant would on return to Jamaica face a real risk of discrimination and violence by members of the public or criminal gangs, to the extent that this would amount to persecution. As gay men, lesbians and bisexuals in Jamaica may be considered to be members of a particular social group, they should be granted asylum. 3.7.9 However, if an individual chooses to live discreetly because he/she wants to avoid embarrassment or distress to her or his family and friends he/she will not be deemed to have a well founded fear of persecution and will not qualify for asylum. This is because he/she has adopted a lifestyle to cope with social pressures and not because he/she fears persecution due to her or his sexual orientation. 3.7.10 If an individual chooses to live discreetly because he/she fears persecution if he/she were to live as openly gay, lesbian or bisexual then he/she will have a well founded fear and should be granted asylum. It is important that gay, lesbian and bisexual people enjoy the right to live openly without fear of persecution. They should not be asked or be expected to live discreetly because of their well founded fear of persecution due to their sexual orientation." 100. There has been no new Country of Origin Report on Jamaica since December 2009. The other country materials set out in Appendix A support and underline the position now accepted by the respondent in the Operational Guidance Note guidance. 101. On the basis of the evidence before the Upper Tribunal, it is clear that the anti-gay stance in Jamaica goes right to the top of the political structure. The Prime Minister recently stated that he would not accept any male or female homosexual in his cabinet and that Jamaica will not bow to international pressure and change its stance on homosexuality. Ernest Smith MP’s call for increased sentences for buggery, virginity tests on girls returning to school after the summer vacation, and a ban on gun licences for homosexuals were all indicative of that political and social climate. A poll by the Jamaica Gleaner recorded that 70% of Jamaicans considered that homosexuals should have no civil rights at all. 102. Levels of criminality and violence in Jamaica are very high overall, and there is ample evidence of attacks on homosexuals and lesbians, including the perception that rape is a method of “curing” sexual orientation. The evidence was that there was no sufficiency of protection: police attending reported attacks on gays arrived slowly, did little, and on occasioned joined in on the side of the aggressors. The social elite are in a better position: they live in gated communities and can regulate what the world knows of them. They have money, education, geographical protection, and, usually, come from families that are “known” and have lighter skin. Even they are not necessarily safe, but they are safer: their financial position may enable them to hire personal protection rather than relying on sufficiency of protection from the Jamaican state. 103. In contrast to the ability to go out in all-female groups in the United Kingdom, we accept that the evidence is that in Jamaica, it is unacceptable socially to go out to dinner with another woman, or to go to a club or go dancing with her, particularly if you then reject approaches from men. The lyrics of dancehall music incite violence against gays and lesbians, suggesting that they are better dead, or that they be raped. Some Church leaders regard it as brazen for gays and lesbians even to have a representative support group. 104. In order to live safely in Jamaica, a single woman must present a “heterosexual narrative”, normally involving male friendships and/or children. If a woman had no men friends, local men would indicate their availability and their reactions to rejection would be unpredictable, ranging between walking away and violence, even murder. Mob violence is a problem; jobs can be lost and people driven out of their homes if they were perceived to be gay or lesbian. 105. Open or perceived lesbians are at risk throughout Jamaica. While the greatest risk is in the metropolitan areas, outside the cities locals gossip about a woman with no children or men friends, unless there is an obvious, good reason, and perceived lesbianism entails risk, even where a woman is not lesbian. 106. We rejected Mr Chelvan’s argument that all lesbians in Jamaica are at risk of persecution, by reason of the risk of being perceived as lesbian. That is to go much further than the Supreme Court in HJ and HT and very close to finding a generic risk to all single women throughout the country, eliding the final point in HJ and HT that those who are naturally discreet for reasons other than fear do not require international protection . On the evidence, lesbians who chose to live discreetly for societal or family reasons, rather than because they feared persecution, and who elected to create a heterosexual narrative to support that position, would not be entitled to international protection because they would be able to avoid the risk of being perceived as lesbian by having either men around or children. Country guidance conclusions 107. We give the following guidance overall on the risk to lesbians and perceived lesbians in Jamaica: (1) Jamaica is a deeply homophobic society. There is a high level of violence overall, and where a real risk of persecution or serious harm is established, the Jamaicans state offers lesbians no sufficiency of protection. (2) Lesbianism (actual or perceived) brings a risk of violence, up to and including ‘corrective’ rape and murder. (3) Not all lesbians are at risk. Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear. (4) Single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion. (5) Because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety. Newcomers in rural communities will be the subject of speculative conclusions, derived both by asking them questions and by observing their lifestyle and unless they can show a heterosexual narrative, they risk being identified as lesbians. Perceived lesbians also risk social exclusion (loss of employment or being driven from their homes). (6) A manly appearance is a risk factor, as is rejection of suitors if a woman does not have a husband, boyfriend or child, or an obvious and credible explanation for their absence. (7) In general, younger women who are not yet settled may be at less risk; the risk increases with age. Women are expected to become sexually active early and remain so into their sixties, unless there is an obvious reason why they do not currently have a partner, for example, recent widowhood. (8) Members of the social elite may be better protected because they are able to live in gated communities where their activities are not the subject of public scrutiny. Social elite members are usually from known families, wealthy, lighter skinned and better educated; often they are high-ranking professional people. The appellant’s case 108. We turn next to the factual matrix in this appellant’s case. She is a Jamaican lesbian, and is not a member of the social elite. She is fairly dark skinned, at the beginning of her professional career as an accountant, and does not have a manly appearance. 109. The appellant came to no direct harm in Jamaica before coming to the United Kingdom, apart from her depressive illness. She had a discreet social life with other lesbian women and several covert lesbian relationships and the single incident at a nightclub on which the appellant relied did not lead to any actual harm to her or any of her discreet lesbian companions. Her employer, on whom she had a crush, was aware of her sexual identity but it caused no problems. 110. The appellant when last in Jamaica was a young woman, in her twenties and not yet settled. She had a heterosexual narrative in that she lived with her elderly grandfather, had a male friend in her life (her former boyfriend), and her longest discreet relationship was with a woman who could demonstrate a heterosexual narrative because she was married. The W4W group went dancing on three occasions, and on one of those, got into difficulty from which, fortunately, they escaped unharmed. The description of the music playing and the threats by the men at the dancehall are, again, entirely consistent with the country evidence. 111. The appellant is much older now; she has been in the United Kingdom since 2003 and is no longer of an age where she would be expected not to be settled. She has had a number of short-lived open lesbian relationships here and is educated, sophisticated and articulate. 112. The appellant’s account of her various United Kingdom relationships was not challenged by the respondent, save in relation to the crockery incident and her ability to remain on those premises for a few months longer. 113. Having considered all of the evidence before us, immediately after the hearing we formed the view that the appellant was a witness of truth and that her account was not exaggerated. The appellant and her girlfriend gave their evidence calmly, clearly and consistently. In particular, the appellant gave a coherent and credible account of the gradual emergence of her sexuality in Jamaica, and of the social, religious and family difficulties it caused her, as well as her reliance on antidepressants. 114. The appellant’s account of her continued emergence into open lesbianism after she reached the United Kingdom was equally consistent and credible. She did not claim to have developed a family life in the United Kingdom with any one woman, but she had lived freely as a lesbian. 115. With some reservations, we accepted the appellant’s evidence that she would continue to live openly as a lesbian if she were returned to Jamaica, even if it put her at physical risk there. We have considered whether her being prepared not to bring girlfriends home after the broken crockery incident was a return to discretion. It may have been, but that was three years ago and the appellant has continued to develop. 116. We noted Mr Auburn’s submission that the appellant would return to discreet lesbianism principally because of the hostility to lesbians in Jamaica. We do not consider that assists the respondent in the light of HJ and HT , because the appellant’s reason for so doing would not be social discretion but fear. The appellant is not in a position easily to represent her former heterosexual narrative, even if she wished to do so: she is older, her grandfather has died, and her ex-boyfriend, whom she has not seen since 2003, now lives outside Jamaica. The appellant has no children and does not wish to have any. 117. The appellant has no heterosexual narrative to support her now and we accept that she is one of the rare people who would live openly as a lesbian, despite the risks, in a relationship if she could find someone who would do the same, but in any case, without a supporting male figure. If Mr Auburn is right that there would be no other lesbian in Jamaica prepared to live openly as a lesbian with her, that does not improve the situation, since the effect would be that the appellant would be deprived of any expression of her sexuality at all. 118. The evidence of the appellant’s girlfriend was credible and direct: theirs was a new relationship. She would like to see it develop but would not go to Jamaica if the appellant were returned, because the girlfriend considered that it was dangerous to do so and she had a young child to consider.Article 8 ECHR is not engaged in the domestic sense, and the appellant’s Counsel rightly did not rely on it. Conclusions 119. We follow the step-by-step approach in HJ and HT , which may be summarised thus : (1) Is the appellant homosexual? (2) Is [her] country of nationality one where homosexual people who live openly are liable to persecution? (3) Would this appellant live openly as a homosexual? (4) If the appellant would not live openly, what is the reason? (a) If it is a question of the appellant being naturally discreet or responding to social pressures such as a wish not to embarrass [her] parents, that will be insufficient to engage the Refugee Convention or other international protection; but if (b) a material reason for the applicant living discreetly on [her] return would be a fear of the persecution which would follow if they were to live openly as a homosexual, then, other things being equal, the application for refugee status should succeed. 120. Applying that analysis to the facts of the present appeal, we answer questions 1 and 2 in the affirmative. The appellant’s sexual orientation is accepted and the respondent conceded that Jamaica is a country where people who lived openly as lesbians were liable to persecution. We also answer question 3 in the affirmative; the appellant impressed us as a calm and credible witness and we believe her firm evidence that she would not return to living discreetly, whatever the risk. 121. If we are wrong about that and question 4 must be considered, we find on these facts that the appellant is not now ‘naturally discreet’ and her case does not fall into the exception at 4(a) of the test; any return to discreet living would be by reason of her fear of persecution rather than by reason of social pressures, and the appellant therefore would be entitled to refugee protection under question 4(b) in the alternative. 122. It follows that the appellant has established a risk of persecution on return and the Refugee Convention is engaged. The respondent accepted that there was no sufficiency of protection in Jamaica for lesbians who could establish that they were at real risk of persecution or serious harm. Internal relocation is a question of fact, and on the facts of this appeal, would not avail the appellant. Those findings are determinative in her favour and the asylum appeal must be allowed. Decision 123. The original Tribunal made a material error of law in this appeal (by applying the higher civil standard of proof rather than the asylum and human rights standard of real risk or reasonable degree of likelihood). We set aside that determination and proceed to remake the decision. 124. We substitute a determination allowing this appeal under the Refugee Convention andArticle 3 ECHR . Humanitarian protection was inapplicable as the asylum appeal succeeds. Funding 125. The Tribunal is satisfied that, at the time the appellant made the Section 103A application and for the reasons indicated in the order for reconsideration, there was a significant prospect that the appeal would be allowed upon reconsideration. Accordingly it orders that the appellant’s costs in respect of the application for reconsideration and in respect of the reconsideration are to be paid out of the relevant fund, as defined in Rule 33 of theAsylum and Immigration Tribunal (Procedure) Rules 2005 . Signed Senior Immigration Judge Gleeson Appendix A Oral and documentary evidence before the Upper Tribunal Appellant’s evidence 1. The appellant gave oral evidence after adopting her witness statement of20 November 2009 . Her account fell into two phases, the first 30 years of her life spent in Jamaica, and the period after she came to the United Kingdom, during which she gradually emerged as an open lesbian. Her various girlfriends are referred to by alphabetical initials, in chronological order. Jamaica : 1973-2003 2. The appellant's early life may be taken quite shortly: she was aware of her sexual orientation from the age of about 7 and had a close school friend whom she used to kiss on the lips, behind the school premises. They were spotted by a teacher and both girls were spanked. They did not do it again. Her mother was a Pentecostal Christian and very religious. The family went to Church every Sunday. The appellant’s mother never mentioned the incident and thereafter the appellant suppressed her feelings for many years. 3. The appellant’s homosexual feelings returned in her early 20s. She experienced three short sexual relationships with men, none lasting more than a couple of months, because sexual relations with them did not feel right. One remained a good friend and is aware of her sexual orientation. The appellant became clinically depressed, she considers because of the difficult social situation caused by her sexual orientation. She received antidepressant treatment from her doctor from the age of 24 but did not disclose the reason for her depression. Eventually, the appellant discovered how to meet women online, at first in general chat rooms in which she approached other women (with mixed success), and then in a lesbian-specific chat room (“Women4Women”, hereafter W4W), where she was able to set up discreet dates with other lesbians. They would go out, chat and discuss how they coped, or take a car to a secluded spot and kiss where they could not be seen. The appellant had learned the lesson of her schooldays. 4. The appellant continued gradually to discover her sexuality. Members of W4W arranged social outings to a nightclub or the beach, or would meet at someone’s home. In the appellant’s area of Jamaica, there were five or six women in the group. If they went to a bar, they were very careful not to give any indication of being gay. They were very careful who they invited to group outings: sometimes men would prompt straight women to join the online group, seeking to discover information about its lesbian members, so new members were vetted for a period of time online before they were allowed to meet other members. 5. After a time, the appellant began a relationship with one of the group, Ms A, a married bisexual woman with a son. Ms A’s husband was a pilot and often away, which made it easier for them to meet. They would drive out, always at night, to a secluded spot beside the beach, far away from where they both lived, and with Ms A the appellant finally had full sex. They met at least once a week and spoke on the telephone two or three times a week. They could not go out to dinner, or the cinema, or even hold hands in public. The appellant heard from friends who took more risks than she did that if two women went out together, men would come and threaten them, asking if they were lesbian. Some women she heard of were beaten and raped because they were considered to be lesbians. 6. The appellant only had one hostile experience while in Jamaica. It was during a W4W outing to a nightclub. The women were dancing together and the DJ started playing music with homophobic lyrics by artists such as Beenie Man and TK. A group of men surrounded the women and began calling them “chi-chi girls”, “sodomites”, “pea eaters” and “pussy eaters” all terms for homosexuals and/or lesbians. They were saying, “Let us convert you, we will make you into straight women” and the women understood clearly that they were threatening rape. The group left the club fast; the men followed them out but did not carry out their threats. The appellant could not say why: she thought perhaps on that occasion there had been safety in numbers. 7. In early 2000, the appellant told her brother that she was lesbian; he was supportive. From July 2000 to May 2003 she worked at the Ritz Carlton Golf and Spa. She had a crush on her female boss there; her boss was not lesbian but was probably aware of her infatuation. Her boss called a meeting and told the staff to accept people who were gay and lesbian. The appellant felt that remark was intended to make her more comfortable. 8. Generally, though, the appellant had to live a very discreet life in Jamaica and she felt frustrated, trapped and restricted. She felt less of a human; she resented the freedoms which heterosexual people had to express their sexuality publicly. She also had to deal with her sexuality without any counselling or support; a referral to J-FLAG’s support worker in her area was not very helpful as the male support worker did not really engage with her. J-FLAG was a new organisation and under-resourced. 9. In 2003, the appellant decided to leave Jamaica and come to the United Kingdom to study accountancy here. Her visits to the United States, to see her sisters living there, had shown her how different life could be in a country where she was free to express her sexuality, but she had not told her sisters of her orientation or considered seeking asylum there. When in America, she was just on holiday, combined with a family visit. United Kingdom : 2003-2009 10. On arrival in the United Kingdom, the appellant began a short-lived relationship with a woman, Ms B, which lasted from December 2003-August 2004. On New Years’ Eve 2004, she told her sister S of her orientation. S was very disappointed and cried, saying that it was not right. The appellant and her sister S are still in touch but the subject is not mentioned. 11. In January 2005, the appellant began a relationship with Ms C, and in May 2005 they moved in together. During 2005, the appellant told her sister J (who lives in New York) that she was lesbian. J was supportive and even permitted the appellant to take Ms C over in 2006 to visit. The appellant’s relationship with Ms C ended in September 2006. 12. The appellant had intended to tell her mother about her sexuality, but before she could do so, J’s boyfriend told her mother, who was devastated, distraught, and blamed herself. The revelation was particularly distressing because her mother had recently married a pastor and she feared social consequences if her daughter’s orientation became known to his parishioners. After the initial shock, the appellant and her mother were reconciled. The appellant’s mother prays for change and they remain close. Other family members have not been told, though aunts and uncles have speculated about the appellant because she is still unmarried and childless. 13. From December 2006-August 2007, the appellant had a relationship in the United Kingdom with Ms D. From February-March 2008, she had a short relationship with Ms E, a bisexual woman whose husband was in prison at the time. Ms E stayed at the appellant’s flat for a night one weekend, upsetting the two heterosexual Jamaican men with whom the appellant was living. They started gossiping and saying she was lesbian, then one of the men broke all the cups and bowls they shared, saying that he did not want to be around a “sodomite” or to share utensils with one. They felt she might infect them. The appellant had to buy separate crockery to use for herself. Nevertheless, she stayed in the house for another four months; the men were not very pleased, but one of them had no status in the United Kingdom and they were not prepared to risk her reporting them to the police. 14. The appellant’s student leave to study accountancy was extended several times up to January 2008, when the respondent refused to extend it further: the appellant’s appeal against that refusal was dismissed in August 2008. Apart from short periods when she lived with Ms C and Ms F, the appellant stayed rent-free with various Jamaican friends while in the United Kingdom. Her sisters in the United States supported her studies financially as much as they could. The appellant also obtained employment as a bookkeeper and accounts clerk. The appellant pursued her accountancy studies at a number of colleges, and sat the final examination in June 2009. She is now a fully qualified accountant and has been in the United Kingdom for over seven years. 15. From April 2008, the appellant was in a relationship with Ms F, a previously heterosexual woman, whose first female relationship was with the appellant. They went to gay bars and pubs, or just stayed in and watched movies. She did not tell Ms F about her immigration situation. 16. In August 2008, the appellant claimed asylum, and was detained at Yarlswood. She was forced to explain her situation to Ms F, who was supportive, visited her in detention and gave evidence at the appellant’s Immigration Judge appeal hearing. It was a very serious relationship: Ms F introduced the appellant to her family, friends and colleagues. When the appellant was released in September 2008, she moved in with Ms F, but the relationship came to an end in August 2009. 17. The appellant met her current girlfriend, Ms G, in Club Life over the August Bank Holiday of 2009. On9 September 2009 , she was dispersed to NASS accommodation in Stoke-on-Trent. The relationship continued up to the date of the reconsideration hearing, conducted mainly in visits to pubs and clubs in London. They also went out as a group with friends. The appellant had met Ms G’s mother and sister. 18. The appellant enjoyed the freer atmosphere in the United Kingdom. The question of her being lesbian was simply not a problem here. She marched in Gay Pride in 2005 with BLUK (Black Lesbians UK). The appellant was a member of various gay Facebook groups and pages. A few of her friends removed her as a Facebook friend when they became aware of her orientation but the rest did not. She had become more open about her sexuality: her Facebook friends now knew of her orientation, including those still living in Jamaica. The appellant told one or two friends directly and they accepted her. It followed that the appellant was now “out” not just to her family but to a wider group of non-homosexual Jamaicans who knew her when she lived there. 19. In her oral evidence, the appellant adopted her statement and confirmed that she was 30 years old when she arrived in the United Kingdom to study accountancy. She considered that she would have been perceived as marriageable and available from the age of 18. In her 20s, she had been at university, travelled to the United States and so on; she had been busy with college and establishing herself at work. She had begun meeting other lesbians in groups from the age of about 24, but did not have a physical relationship until she was 27. 20. In cross-examination, the appellant was asked about the reaction to lesbians here in the United Kingdom. She considered that, though levels of tolerance might vary, she had never felt unsafe and any question of risk seemed hypothetical. If there were a problem, the domestic protection was much better. She would not contemplate changing her open lesbianism to avoid harm, wherever she lived. She was “out” now: being discreet had made her ill with depression and she had no intention of risking that again. When asked by Mr Auburn how she would behave if on holiday in Saudi Arabia, the appellant said that if she were to put herself in that position, she would reason that it was not for long and would not be afraid to be open about her sexuality there. There had been no previous suggestion that the appellant wished to travel to Saudi Arabia, on holiday or otherwise. 21. The appellant confirmed that six years ago, when she left Jamaica, she had been living discreetly. She had gone out with lesbian friends but always at night and usually to safe places. If the W4W group went to a bar, there would be six or seven of them. She could only recall three such occasions and one of them was the one where they had difficulty. Her relationship with Ms A had been conducted discreetly, driving somewhere safe for sex maybe once a week. It was an unhealthy lifestyle and not sustainable. The relationship ended after three years, during which they were never out in public together as it was too dangerous. Even if two women went to a restaurant and a man came over, that was a risk. If they showed no interest in him or refused to dance, that would lead to a negative perception. 22. The appellant was nevertheless most emphatic that she would, now, take the risk. She would not return to secrecy after six years of openness; however, she feared what might occur if she behaved openly, as she would do. She would not take Ms G. It was not fair to expect it. If in Jamaica anyone asked why the appellant was not married, she would tell them she was a lesbian. She knew who she was now and would not modify her behaviour. She felt really strongly about it; she was not prepared to take a retrograde step, even though she knew it was unsafe not to do so. She was no longer prepared to live closeted and if she met someone in Jamaica, they would have to be prepared to be open or she would not consider going out with them. She had suffered depression in the past from her closeted life and was not prepared to return to that. 23. The appellant was asked about the crockery-smashing incident in the United Kingdom. She explained that she was living, rent free, in a house owned by a friend of her mother, with two men and another girl who was heterosexual. They did not behave homophobically until her girlfriend stayed over one weekend. By that time the appellant had been there for a couple of months: she was initially unsure how to deal with their reaction but she soon relaxed, since she knew that they could not risk any trouble with the police. They had to be tolerant because of that. She stayed for a further five months, but after that her girlfriend came in the daytime only. It was put to the appellant that this was inconsistent with her claimed fear of Jamaican men, but she emphasised that it was the availability of domestic protection in the United Kingdom which made the difference. 24. The appellant had no difficulty before she left Jamaica because she had men friends in evidence and was living with her grandfather. The appellant confirmed that her mother and brother were aware now of her sexual identity, as was her male friend, but she had not seen him since leaving Jamaica six years ago and would not be able to use him to recreate the heterosexual narrative she had projected before leaving, if she now returned. Nevertheless, if returned she would do the same as she did now in London, going out to clubs and pubs with other women. She would want a partner to be with and she would not hide. Heterosexual women in Jamaica had female friends and went out in the evenings with them; the appellant and her W4W friends had done the same. 25. The appellant was asked why she had not claimed asylum in the United States on her visits in 1997 and 1998, returning to Jamaica each time, and the same on her visit to the United States from the United Kingdom in 2006 with Ms C. She stated that at that time she had no reason to do so since she was not in danger in America. 26. In re-examination, the appellant stated that she took pictures of the broken crockery just to be on the safe side, since initially she was not sure whether the situation would escalate. She was working as an accounts assistant and living free helped her finances, especially as she was also studying. The other girl who lived there was also a friend of the person who owned the house, and the men knew the appellant was studying. She did have some platonic male friends in the United Kingdom and in Jamaica; one, a heterosexual man who had a son now, was still there, but others had moved to the United States. She did not know his present social status, or whether he was in a relationship, but she had spoken to him on the phone when he was last in London. 27. Only one woman, Ms A, had visited the appellant’s home when she was in Jamaica. At that time, the appellant was living with her grandfather, and Ms A only came at night. Her grandfather was “old school”: the appellant was not permitted to take visitors to his home. He was known and the appellant had moved there when she was working in Montego Bay. He did not have many neighbours. The grandfather had since died. 28. Now, if returned, she would tell people at work that she was a lesbian. “Coming out” and accepting herself had been liberating. Now she was herself, and she could be who she was without fear. Other lesbians lived discreetly because they feared harm: the appellant would not do so. She was not prepared to have children, it would be horrible and not “her’. She would not be living the life she wanted to live. If she entered into a relationship in Jamaica, she would expect a partner there to take the risks with her. Evidence of appellant’s girlfriend 29. In her witness statement, Ms G stated that she was a British Citizen and met the appellant at Club Life in Vauxhall on August Bank Holiday 2009. She went there with friends and noticed the appellant, whom she thought very attractive. After a time, the appellant asked her to dance. They danced and kept company all night, then exchanged numbers, meeting several times over the next week or so. The appellant told Ms G that she was moving to Stoke-on-Trent. Ms G was surprised and disappointed: she really liked the appellant but was not keen on a long distance relationship, having just finished one. 30. The relationship continued, mainly by daily telephone calls, with the appellant staying with Ms G about twice a month. Ms G went once to Stoke-on-Trent to visit the appellant but there was not much to do there; the clubs and pubs they liked were in London. Some of Ms G’s gay friends had met the appellant. She had introduced the appellant to her son, her mother, her sister and various nieces and nephews, and spoken of her to her straight friends. The appellant had introduced Ms G to a couple of her friends too. The appellant was comfortable in her sexuality and happy to refer to herself as lesbian. That was unusual and refreshing. 31. Ms G understood that the appellant might be returned to Jamaica, which she found hard to contemplate as it would end their relationship. Ms G was looking to settle down and it was difficult to plan ahead in the present situation. Ms G would not go to Jamaica: it would make no sense, because she and the appellant wanted to be who they were, and to be together. It was well known on the gay scene in the United Kingdom that Jamaica was one of the places where as a lesbian you simply could not go. 32. In contrast, in the United Kingdom, they could be normal; they had nights out together, they stayed in to watch television, they played sport, they went out for dinner, together and with friends. That was a freedom they would not have in Jamaica. Papers such as “The Voice’, West Indian newspapers, the internet, and friends in the gay community all reported that in Jamaica, gays were raped and killed, and the government, police, and people in general frowned on homosexuals. 33. In her oral evidence, Ms G adopted her witness statement and was tendered for cross-examination. In cross-examination, she stated that she had never been to Jamaica. She was not even prepared to move to Stoke, never mind Jamaica. The appellant had moved to Stoke just two weeks after they met. There was not enough to do in Stoke. In re-examination, she said she might visit Jamaica for a holiday but not to live; it was out of the question. The life there was totally different and not safe. The relationship was still in the early stages and if it came to an end now, Ms G would be disappointed. Country evidence Expert report and oral evidence of Mr Sobers 34. Mr O. Hilaire Sobers LLB (Hons) UWI, LLM (Warwick), Attorney-at-Law (Jamaican Bar) was instructed by the appellant’s solicitors. The appellant’s representatives disclosed the letter of instruction which, with corrections for several obvious typographical errors, asked him to deal with the following questions: (1) What are the current risks faced by lesbians in Jamaica and have things changed over the last 1-2 years? (2) What is Jamaican society’s attitude to lesbianism? (3) To what extent can a woman identified as a lesbian access state protection or relocate within Jamaica to avoid any risk? (4) How possible is it for a lesbian woman to have a relationship with another woman, including cohabiting? Can this be done discreetly? Would 2 women living together arouse suspicions? To what extent can women show affection in public? (5) How (un)usual is it for a woman to live alone or with another woman in Jamaica? Can a woman without family support be economically self-sufficient? (6) Looking at this appellant’s particular case, what are the risks she would face in Jamaica? To what extent could she have the same lifestyle there that she does here? 35. Against that background, Mr Sobers’ report set out his understanding of the facts of this particular appeal and summarised the questions rather more shortly: (a) The risk of discrimination and harm to lesbians in Jamaica; (b) The sufficiency of protection currently available to women of same-sex orientation by the Jamaican state; and (c) The possibility of internal relocation to avoid the risk of homophobic-inspired violence. 36. Mr Sobers’ report set out his qualifications and experience. He had been an attorney-at-law with the Jamaican Bar for over 30 years. Before coming to the United Kingdom in 2001, he had been resident in Jamaica, where while practising law he appeared in both civil and criminal courts. He was Executive Director of the Independent Jamaican Council for Human Rights from 1998-1999. In September 1991, he had been a member of the Public Defender’s legal team at the Commission of Inquiry into violence in West Kingston, which he described as a garrison community. From 1994-1995 he founded and ran “Brother’s Keeper”, an NGO designed to promote solutions to Jamaica’s violent crime problem. 37. Mr Sobers came to the United Kingdom in September 2001 to study here. In December 2002, he was awarded the LLM in Law in Development from the University of Warwick, with particular focus on human rights and criminal justice. Since completing that qualification, he had lived in America, and currently in Washington DC, where he was a human rights consultant, but he maintained both professional and personal ties to Jamaica, visiting every year. 38. Mr Sobers in his latest report noted the high rate of murders in Jamaica (1611 in 2008, about 60 per 100,000 inhabitants) and a reported increase in shootings, rape and robbery in 2008. Violence against women was widespread. Of those offences which were reported, sexual assault was the second highest cause, after fighting. Mr Sobers relied upon the following documents in support of that position: · the US State Department Report for 2008; · the Jamaican Ministry of Justice Victim Support Unit information between 2005-2008; · a 1999 report by the UN Development Program, 39. All three reports recorded high levels of violence against women and significant underreporting of such assaults. More particularly, · In 2006, Amnesty International reported that the Sexual Assault Investigation Unit in Jamaica considered that only 25% of sexual assaults were reported; · On23 April 2009 , the Jamaica Information Service reported Senator Dwight Nelson, Minister of National Security as calling for a culture change as Jamaican men “have been acculturised to the notion that they have a right to sexually harass women” and that the government was committed to efforts to eradicate all types of violence against women, including sexual violence; · A March 2009 study found that almost half of Jamaican adolescent females had experienced sexual coercion, with 27% having experienced some form of sexual violence. 40. In contrast to the reports which were criticised in AB, Mr Sobers’ report for this appeal was carefully sourced throughout, drawing both upon the country materials mentioned and on his personal knowledge of Jamaica, to support his conclusions that women who lived alone there would be perceived as lesbians, whatever their actual sexuality, and that those who claimed to be bisexual or transgendered would be regarded as homosexuals (of whichever sex). A long section of the report then considered questions relating to male homosexuality, with which we are not concerned directly in the present determination. 41. The aspects of Mr Sobers’ report which related to female homosexuality may be summarised as follows. He noted that lesbianism in Jamaica was not a criminal offence, the criminal legislation being directed at male homosexuals. The Government of Jamaica had repeatedly refused to repeal the buggery laws criminalising male homosexuality. Verbal abuse of lesbians and gays was a given, with violence more unpredictable, but involving virulent physical brutality when it occurred. Senior Church figures such as Wellesley A Blair, Administrative Bishop of the New Testament Church of God, had called for criminal penalties such as public lashing for “sodomites” and criminals. Dance-hall song lyrics called for lesbians to be killed. A consistently reported aspect of the hostility to lesbians was the notion that they could and should be forcibly cured by rape. Mr Sobers gave a small number of examples of rapes and attacks on women who were openly lesbian, observing that the Jamaican culture of masculinity “views lesbianism as a particular affront to what is perceived to be the natural prerogative of men in their relations with women”
“18.22 Thou shalt not lie with mankind as with womankind: it is abomination. 20.13 If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.” 59. In Jamaica, where religion was very important, that approach to homosexuality was deeply rooted. In common with other developing countries, the Jamaican male population had a deep rooted antipathy to homosexuality, because sexual activity incapable of producing issue undermined survival overall. The Offences against the Person Act, sections 76 and 79, continued to prohibit buggery and gross indecency. The government had absolutely refused to abolish either offence, reflecting a deeply entrenched prejudice at the heart of Jamaican politics. 60. Mr Sobers himself had been perceived as gay because he campaigned about homosexuality. Pressed about the age of sexual activity for teenagers, Mr Sobers expressed concern about his 21-year old god-daughter’s status (she is in her early 20s with no boyfriend or children). Much was made of this in submissions but we are not inclined to put weight upon it. It seems too fact-specific. The appellant herself was now a pastor’s step-daughter: Mr Sobers said that was two-edged, since although it gave you some protection, you would be expected to know how the world worked. Homophobic violence formed part of the wider culture of violence in Jamaica. 61. In re-examination, Mr Sobers stated that Jamaica had the highest density of churches per square mile in the world, 14 parishes, although it was a very small country. The appellant herself came from a deeply Christian family, it appeared. He would expect a lesbian to conduct herself discreetly, refraining from lesbian behaviour, giving absolutely no indication in her dress or manner to suggest that she was not heterosexual, receiving male visitors at home and dancing with men when out. That could create a narrative of conformity, a heterosexual norm. The alternative was possible violence: some bishops considered that homosexuals should be lashed in punishment. Other country background evidence FCO travel advice 62. FCO travel advice in April 2009 for Jamaica stated that: “ Jamaica has laws which make certain homosexual acts illegal. The attitude of many Jamaicans to gay, lesbian, bisexual, transgender and intersex people is hostile.”
“ OVERVIEW 19.01 Traditional societal attitudes about homosexuality remained entrenched with homophobia continuing to be a significant problem in Jamaica. Lesbians and gay men remained a marginalised group and were often the target of harassment and violence. (Freedom House, Freedom in the World 2009 - Jamaica) Gareth Thomas, a Minister at the Department of International Development, was reported by Pink News on9 November 2008 as stating that “… the treatment of lesbian and gay people in Jamaica is a disgrace … The Church condemns them as sinful and the Prime Minister is unashamed to say he would not have a gay person in his Cabinet. The wildly popular dancehall culture is viciously homophobic, with many lyrics calling for lesbians and gays to be burned, beaten and shot.” 19.02 The US State Department Report on Human Rights Practices 2008 (US State Department Report 2008), published on25 February 2009 , noted that the suspicion of homosexuality was often enough to trigger violence. “Despite the easygoing image propagated by tourist boards, gays and their advocates agree that Jamaica is by far the most hostile island towards homosexuals in the already conservative Caribbean. They say gays, especially those in poor communities, suffer frequent abuse. … homophobia is pervasive across the sun-soaked island, from the pulpit to the floor of the Parliament.” (365 Gay,20 July 2009 ) A recent opinion poll carried out by the ‘Jamaica Gleaner’ found that 70 per cent of Jamaicans did not believe that gays and lesbians should have any civil rights. (365Gay website20 June 2008 ). Newsweek International reported in September 2007 that 98 gay men and lesbians were targeted between February and July 2007 in 43 separate mob attacks. The article stated that: “Four lesbians were raped, four gay men murdered, and the houses of two gay men were burned down.”
“[T]he homophobia which suffuses the music, religion, society and government has combined into a peculiar nationalism ... For people that believe this, gay-bashing has become a kind of patriotism, an act in defence of the nation, and an integral part of the Jamaican identity.” (Responses to Information Requests, Immigration and Refugee Board of Canada, February 22, 2007) Additional information on anti-gay lyrics can be accessed via the following weblink: Amnesty International - Action against homophobia in Jamaica 19.04 Amnesty International’s (AI) 2009 Human Rights report stated that it was difficult to gauge the true extent of violence against lesbians and gay men because levels of violence and prejudice in the country ensured that the subject remains taboo: lesbians and gay men “… do not report attacks for fear of exposure.”
“LESBIANS 19.28 An article in Women’s e News on the plight of lesbians in Jamaica reported that women who step outside societal norms by dressing in “too manly” a style or having few male visitors, for example - risk threats of verbal and physical abuse. Women have reportedly been raped, beaten, murdered and forced out of their homes or jobs simply for being lesbians. … 19.29 The Guardian reported that: “The lesbian experience is neither better nor worse but certainly different [than the gay male experience]. “The abuse against women is a bit more subtle,” says one lesbian who did not wish to be named. “There's the rape that you probably never report. The beating from the boyfriend twice removed who's just heard that you're lesbian and has come to whoop your arse.” (‘Victory for Gay Rights Campaign as Reggae Star Agrees to Ditch Homophobic Lyrics’, The Guardian, July 23, 2007, available at http://www.guardian.co.uk/uk/2007/jul/23/musicnews.gayrights , accessed2 October 2008 .) 19.30 Lesbians in Jamaica have also faced forced evictions from the communities they live in. In April 2007, residents of the McGregor Gully community in East Kingston gave gays and lesbians two weeks notice to move out or “or suffer the consequences.”
“Hang chi-chi gal [lesbians] with a long piece of rope." See: “Black and Gay and Hunted’, New Statesman,4 October 2004 , which can be accessed at the following weblink: http://www.newstatesman.com/200410040017 , accessed25 September 2008 .” 65. On1 June 2009 , the respondent issued an Operational Guidance Note for Jamaica, which was reissued in July 2010 and dealt with the position of gays and lesbians in Jamaica. That has subsequently been replaced by an updated Operational Guidance Note, in line with HJ and HT, which is set out in the body of the determination. UNHCR Guidance Note 66. A UNHCR Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity in November 2008 adds nothing to the thorough consideration of the proper approach in the Supreme Court’s HJ and HT judgment. It does not deal specifically with Jamaica. UNHCR Guidance Note 67. A UNHCR Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity in November 2008 adds nothing to the thorough consideration of the proper approach in the Supreme Court’s HJ and HT judgment. It does not deal specifically with Jamaica. US State Department Reports on Jamaica 68. The US State Department Report for Jamaica 2008, published in February 2009, was included in the bundle. It has now been overtaken by the 2009 Report published in March 2010, which dealt with sexual orientation thus: “Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity …The Jamaica Forum for Lesbians, All Sexuals, and Gays (J-FLAG) continued to report human rights abuses, including arbitrary detention, mob attacks, stabbings, harassment of homosexual patients by hospital and prison staff, and targeted shootings of such persons. Police often did not investigate such incidents. J-FLAG reported 33 cases of serious injuries to gays and lesbians over an 18-month period. The violence led many such persons to emigrate. J-FLAG members also suffered attacks on their property and home intrusions, as people demanded to know the number of persons and beds in a home. In one instance, a fire bombing at the home of two men left one of them with burns on more than 60 percent of his body. In addition such persons faced death and arson threats, with some of these directed at the J-FLAG offices. J-FLAG did not publicize its location due to such threats, and its officials reported feeling unsafe having meetings with clients at the organization's office. …Lesbian women were subject to sexual assault as well as other physical attacks. Human rights NGOs and government entities agreed that brutality against such persons, primarily by private citizens, was widespread in the community.” 69. Additional passages in the February 2009 version were: “ …No laws protect persons living with HIV/AIDS from discrimination. Human rights NGOs reported severe stigma and discrimination against this group. The ILO worked with the Ministry of Labor on a program to reduce the stigma of HIV/AIDS in the workplace and to assist employers in designing policies for workers with HIV/AIDS. Although health care facilities were prepared to handle patients with HIV/AIDS, health care workers often neglected such patients .”
“Discrimination - lesbian, gay, bisexual and transgender people There were continuing reports of mob violence against people, mostly men, perceived to be involved in same-sex relationships. The true extent of attacks on gay men was unknown as the subject is taboo and people do not report attacks for fear of exposure. In August [2008], a Molotov cocktail (petrol bomb) was thrown into a house in Clarendon, south central Jamaica, occupied by two men who were alleged to be gay. As the emergency services arrived, a small jeering crowd assembled outside the house. One of the men received burns covering 60 per cent of his body and was hospitalized for three weeks.” 71. In July 2009, Amnesty International issued a report entitled, “Jamaica: Public Security Reforms and Human Rights in Jamaica”, which, while it did not deal directly with homosexuality, recommended reform of the police and justice systems in Jamaica. Press reports 72. The bundles contain a number of press reports. In 2004 The Guardian newspaper’s article entitled, “If you’re gay in Jamaica, you’re dead!” was self-explanatory. An article dated9 March 2005 from Women’s eNews, “Lesbian activists in Jamaica tell horror stories” reports the evidence of Karlene (who uses her first name only, for safety reasons), on an Amnesty International-sponsored speaking tour of the United States. It records that women who dress “too manly” or have few male visitors risk verbal and physical abuse, including being raped, beaten, murdered and forced out of their homes and jobs simply for being lesbians. In particular, an example is given of a lesbian raped and beaten by the local gang leader because she had no men coming to visit her. 73. A Human Rights Watch report of1 February 2008 entitled “Jamaica: Shield gays from mob attacks” referred to “roving mobs attacking innocent people and staining the streets with blood”, with protection from Jamaican police illusory or non-existent. On18 February 2008 , HJT Research News Reporting Service reported the pastor of the Fellowship Tabernacle in St Andrew, Jamaica, as telling the ‘Jamaica Gleaner’ that “Jamaicans generally deem homosexuality as wrong…attempts by gay activists to force their beliefs on society would in no way influence Jamaicans to change their views.” 74. The Rev Dr Lloyd Maxwell of the AGAPE Christian Fellowship in Portmore said that the Church “would not sanction nor encourage homosexuality…the Scriptures take a very clear stance on the matters”
““ Every month, we hear incidents of people beaten and harassed…People are afraid, they are leaving the country if they can afford to,”
“[The United States] should stop doing business with a country that is proud of its persecution against gay, lesbian, bisexual and transgender people. Our goal is to turn Jamaica into a pariah state, as long as GLBT people live in a state of terror. … Why boycott? Because Jamaica is on a downward spiral and suffers from collective cultural dementia on this issue. There is clearly a pathological panic and homo-hysteria that has infected this nation at its core. Consider that the Jamaica Cancer Society has raised concerns that the fear of being labeled gay is causing some Jamaican men to avoid prostate examinations, causing one of the highest prostate cancer rates in the world. …There must be consequences for state sanctioned gay bashing. Such countries will not change on their own - so economic carrots and sticks must be applied.“ Inter-American Commission on Human Rights 79. A December 2008 report from the Inter-American Commission on Human Rights, of which Mr Sobers was a member, giving its preliminary observations on a visit to Jamaica, stated as follows: “Discrimination based on sexual orientation The Commission strongly condemns the high level of homophobia that prevails throughout Jamaican society. This homophobia has resulted in violent killings of persons thought to be gay, lesbian, bisexual or transsexual, as well as stabbings, mob attacks, arbitrary detention and police harassment. The resulting fear in turn makes it difficult for people within this group to access certain basic services, for example, medical services that might reveal their sexual orientation. Defenders of the rights of gays, lesbians, bisexuals and transsexuals have been murdered, beaten and threatened, and the police have been criticized for failing in many instances to prevent or respond to reports of such violence. The State must take measures to ensure that people within this group can associate freely, and exercise their other basic rights without fear of attack.”
“Amnesty International has identified homosexuals as a marginalized group that is targeted for extreme harassment and violence. Same-sex intercourse is punishable by 10 years’ imprisonment at hard labor. In recent years, several Jamaicans have been granted asylum in Britain on the grounds that they were in danger because of their homosexuality. The antigay lyrics of Jamaican entertainers, particularly reggae singers, remain a source of contention. In 2004, Brian Williamson, a spokesperson for the advocacy group Jamaica Forum for Lesbians, All-Sexuals, and Gays (J-FLAG), was brutally murdered in his New Kingston apartment. The perpetrator was sentenced to life in prison in 2006. Separately, Steve Harvey, a well-known activist on behalf of HIV/AIDS-related causes, was killed in 2005, and four people were later charged in the killing. In 2008, prominent J-FLAG member Gareth Henry fled to Canada and filed for refugee status following an escalating series of threats against his life. The government remains resistant to decriminalizing homosexuality.” 83. The 2010 Freedom House Report is similar, confirming that the problems continue: “… Activists for gay and lesbian rights remain targets of violence. Gareth Henry, a prominent member of the advocacy group Jamaica Forum for Lesbians, All-Sexuals, and Gays (J-FLAG), fled to Canada in 2008 and filed for refugee status following an escalating series of threats against his life. In 2009, Prime Minister Bruce Golding endorsed keeping homosexuality illegal and vowed never to allow gays in his cabinet. The antigay lyrics of Jamaican entertainers, particularly reggae singers, remain a source of contention.”
“Jamaica: Fear for safety, O. Hilaire Sobers8 August 2001 Amnesty International: Jamaica “Fear for safety: O. Hilaire Sobers, human rights activist, journalist, lawyer’ 20042 August 2004 The Guardian, “If you’re gay in Jamaica, you’re dead!’14 November 2004 Human Rights Watch report: “Hated to death: Homophobia, Violence and Jamaica’s HIV/AIDS epidemic’ 20059 March 2005 Womens eNews: “Lesbian Activists in Jamaica tell Horror Stories”