MD (Same sex males and risk) India 2014

Section 377 of the Indian Penal Code 1860 criminalises same sex sexual activity.  On 2nd July 2009 the Delhi High Court declared section 377 Indian Penal Code to be in violation of the Indian Constitution in so far as it criminalises consensual sexual acts between adults in private.  However, in a Judgement of 11th December 2013 the Supreme Court found the declaration of the Delhi High Court to be legally unsustainable.

Prosecutions for consensual sexual acts between males under section 377 are and have always been extremely rare. Sexual orientation is seen socially, and within the close familiar context, as being unacceptable in India. Circumstances in India for persons who are, or who are perceived to be, same sex orientated males are improving, but progress is slow. It would in general be unreasonable or unduly harsh for an openly same sex orientated male or a person who is perceived to be as such to relocate internally to a major city within India.

In the skeleton argument in the case of MD, the barrister, Mr Eton, cited numerous passages from the decision of the Supreme Court in the case of HJ (Iran) the Advocate General’s opinion in the case of X, Y and Z, the Secretary of State for the Home Department guidance on sexual orientation issues in the asylum claim and the UNHCR guidelines on international protection No. 9 “claims to refugee status based on sexual orientation”.

The argument by the appellant was that the existence of section 377 has allowed public bodies in general and in particular the police to harass, intimidate and persecute gay men in India.  There is no settled view on the applicability of the decision of the High Court of Delhi throughout the states within the Republic of India, but there is evidence of continued use of section 377 following the decision of the High Court in Delhi.  It was submitted that there is still intimidation, harassment, ridicule and violence against gay men in India and gay men suffer discrimination in accessing health care.  It was submitted that there is very little space for gay men to live safely in India without fitting into one of the prescribed forms of third gender identities.  Family for many gay Indians is the first and main force of persecution and the Indian police are the main organ of persecution of gay men in India.  The capacity to internally relocate is dependent on their ability to access a support network in the area of relocation.

When referring to Article 8 the right to private and family life it was submitted that the appellant has a family life in the UK akin to marriage with his partner and has amassed a substantial private life in the UK.  Removal would interfere with his private and family life and such interference would be of sufficient severity as to engage Article 8.

The legal framework considered in this appeal was Refugee Convention, Council Directive 204/83/EC, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

A similar case is OO (gay men risk) (Algeria) [2013] which was heard in 2012 and determined in 2013.  Sodomy and acts against nature with a member of the same sex are illegal under Penal Code Article 388 and 333 in Algeria and on conviction carry a criminal sentence of up to three years imprisonment and or a fine.  However, criminal prosecutions for gay men under these Articles are extremely rare.  The evidence does suggest that the general matter societal and familial disapproval of male gay identity in Algeria reaches levels that are persecutory within the meaning of Article 9 of the qualification directive or which otherwise reach the threshold required for protection under Article 15(b) of that Directive or Article 3 of the ECHR.  So far as the social group of gay people is concerned, the underlying rationale of the convention is that they should be able to live freely and openly as gay men and lesbian women without fearing that they must suffer harm of the requisite intensity or duration because they are gay or lesbian.  The home state should protect them and so enable them to live in that way.  If this doesn’t then they will be threatened with serious harm if they live openly, and would be forced to take the steps to avoid it.

The conclusion of the Court in this particular case was that it is not the purpose of the Refugee Convention to reform societies which have  a less pluralistic values than in the UK.  The Convention is concerned with providing protection from serious harm brought about for one of the five reasons stated. International surrogate protection is to be given where there is a serious violation of fundamental human rights or where there is a serious risk of harm in certain situations or internal or external armed conflict.

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