Following a decision made in an appeal to the Upper Tribunal of the Immigration and Asylum Chamber, the Appellant, a citizen of Saint Lucia (St Lucia), has finally won his appeal on asylum grounds. It is thought that the result of this case will go onto have a significant impact on the outcome of other asylum claims brought by gay nationals of St Lucia.
The Appellant in this case claimed asylum on the basis that he is a gay man and he feared persecution from the St Lucian population due to the prevailing societal norms in his country of origin.
The appeal was heard by the First-tier Tribunal (FtT) who accepted that the Appellant was gay and accepted that he gave a detailed, plausible and consistent account regarding the development of his awareness of his sexuality. However, the FtT concluded that the threshold of persecution suffered or apprehended by the Appellant as a gay man had not been reached.
The acting solicitor, Gabor Nagy, identified two grounds of errors of law on which he lodged an application for permission to appeal to the Upper Tribunal (UT). These included:
- The first ground was that the First-tier Tribunal Judge (FtTJ) materially erred in law by misdirecting himself regarding the test for persecution as set out in the case of HJ (Iran) v SSHD  UKSC 31 applicable to gay individuals such as the current Appellant.
- The second ground was that the FtTJ vitally erred in law by not adequately reasoning on key findings material to the outcome of his appeal and coming to illogical conclusions.
It was submitted that corroboration does not mean creditworthy, as observed by the Court in the case of AB (witness corroboration in asylum appeals) Somalia  UKIAT 00125) (3 June 2004)
. It was also submitted that having accepted the general background material at paragraphs 47-51 of the decision, the FtTJ was in material error in failing to look at the Appellant’s case from his point of view, as observed in the case of Y v Secretary of State for the Home Department  EWCA Civ 1223 (26 July 2000)
, outlined in paragraph 53 of the decision:
“He expresses a fear of being killed if he is open about his sexuality or at least of being subject to violence or ill-treatment”.
The FtTJ went on to conclude that:
“Verbal taunting while unacceptable does not reach the threshold of persecution. I have not seen evidence to suggest that there is a real risk that the Appellant would be killed for the reasons seemingly behind the 2015 murder.”
The objective evidence overwhelmingly pointed to the fact that the murders committed against the individuals were based on their sexuality and the logical conclusion to infer would have been that were the Appellant’s sexuality to become public knowledge, he would have faced the same fate as the LGBT people who had been killed in St Lucia due to their sexuality.
The UT granted permission on all the grounds. The main ground that the UT wanted to specifically highlight was that the FtT had failed to engage with the apparently cogent evidence that there might be more violence in St Lucia that the statistics or reports indicated. This is due to the underreporting of crimes and incidents of victimisation against gay people. This failure was sufficient to impugn the reliability of the FtT’s overall finding that there is no apprehended or prospective risk for those who are openly gay in St Lucia.
The finding that the Appellant was and is a gay individual at all times had been a preserved fact and had not been the subject of any cross-appeal.
The UT Immigration Judge (UTIJ) then conducted a thorough assessment of all the country background evidence and she reached the conclusion that it is very challenging to find reliable official data in St Lucia. In any event, the mere fact that criminalisation of same-sex sexual relations is in existence, and is known to have been used in the past, adds an aggravating dimension to the prevalent homophobic attitudes in society and the government.
Moreover, the UTIJ also concluded that there is a deep-seated reluctance on the part of gay men to seek help, support or protection either formally or informally in St Lucia. This is further ratified by the fact that there is no formal complaint structure or mechanism for LGBT people in St Lucia. It remains apparent that this reluctance to seek help is also to do with a general fear of being identified in the first place; there is very small number of openly gay men in St Lucia. Those that are face daily harassment, verbal taunts and threats, as well as discrimination in obtaining accommodation and employment.
In spite of this, the level of violence against those perceived to be gay is unclear. This is a consequence of the government not recognising sexually motivated victimisation as a crime, the absence of official records and underreporting. The UTIJ accepted the evidence that exists from over the last 10 years which records that men perceived to be gay have been murdered in particularly violent circumstances, and there is no obvious explanation for this, other than their perceived sexuality.
The UTIJ concluded that when the violent incidents are combined with the laws criminalising same-sex relations and the discrimination in society, there is a climate of significant fear and anxiety for gay men in St Lucia. She also found that there is evidence that victims of threats of violence and violence motivated by homophobia are unwilling to seek protection from the police because they fear further abuse from the police and the state. There is no entity (state or otherwise) in relation to which a complaint can be made for reasons relating to a person’s homosexuality. The discrimination faced by gay men can be properly described as frequent and protracted.
The UTIJ concluded that when all the evidence is considered cumulatively, openly gay men face a real risk of persecution on the entire island of St Lucia and the requisite high threshold is met. The accumulation of various measures against men perceived to be gay in St Lucia, including violations of their human rights, is sufficiently severe to affect openly gay men in a manner that constitutes persecution. The appeal was allowed on asylum grounds accordingly.
The UTIJ wanted the case to become a Country Guidance one and had invited the parties to agree on the issue. Unfortunately, the Secretary of State objected to this proposal. Therefore, the UTIJ concluded that this decision does not provide country guidance in the formal sense; it seeks nevertheless to comprehensively set out conclusions regarding the treatment of openly gay men in St Lucia, having considered wide-ranging country background evidence. As such this decision will have far-reaching consequences for future gay asylum-seeking clients from St Lucia.
The Appellant is represented by immigration director Gabor Nagy
with the assistance of caseworker Jonathan Knight
, both of Duncan Lewis. Garden Court North’s Natalie Wilkins
, Counsel, acted for Duncan Lewis at the UT hearing.