MD (same-sex oriented males: risk) India CG

Factual and Procedural Background

This appeal concerns a male national of India (hereafter "Appellant") born in January 1986 who entered the United Kingdom lawfully in 2007 and sought refugee status based on his sexual orientation. The Appellant’s initial asylum claim was refused, and removal from the UK was ordered. The Appellant appealed through the Asylum and Immigration Tribunal, which dismissed his appeal. Subsequent reconsideration and appeals led to the case being remitted to the Upper Tribunal for reconsideration in light of the UK Supreme Court decision in HJ and HT v Secretary of State for the Home Department [2010] UKSC 31.

The appeal was delayed to await the Indian Supreme Court's decision on section 377 of the Indian Penal Code 1860, which criminalises same-sex sexual activity. The Delhi High Court had declared section 377 unconstitutional in 2009 insofar as it criminalised consensual sexual acts between adults in private, but this was overturned by the Indian Supreme Court in December 2013. The Upper Tribunal heard evidence from the Appellant, his partner, and expert Dr Akshay Khanna, and reviewed extensive country background material.

The Appellant’s personal history includes leaving his family home due to conflict over his sexual orientation, loss of employment, arrest and detention under section 377, and ill treatment by police in India before returning to the UK. He lives openly as a gay man in the UK with his partner, with whom he intends to enter into a civil partnership.

Legal Issues Presented

1. Whether the Appellant has a well-founded fear of persecution in India due to his sexual orientation.
2. The extent to which section 377 IPC and its enforcement constitute persecution under the Refugee Convention, Qualification Directive, or Article 3 ECHR.
3. The risk posed by non-state actors and state authorities to same-sex oriented males in India, including the availability and effectiveness of internal relocation.
4. The proportionality of removal under Article 8 ECHR, considering the Appellant’s private and family life in the UK.
5. The applicability of recent legal developments, including the Indian Supreme Court judgment in Koushal and the CJEU decision in X, Y and Z v Minister voor Immigratie en Asiel.

Arguments of the Parties

Respondent's Arguments

• Prosecutions under section 377 for consensual adult same-sex acts are extremely rare and have decreased following the Delhi High Court judgment.
• There is no real evidence of widespread or current violence against same-sex oriented males by police or others; incidents cited are limited and mostly historic.
• The Appellant could internally relocate within India, particularly to large cities with established LGBT support networks.
• The Appellant could mitigate risks by living discreetly, as he does in the UK, and could access employment and accommodation, including self-employment opportunities.
• Removal to India would be proportionate under Article 8 ECHR; the Appellant could apply for entry clearance from India to return as the partner of his UK-based partner.
• Recent judgments, including the Indian Supreme Court decision and the CJEU ruling, support the position that criminalisation alone does not constitute persecution and that concealment of sexual orientation should not be required for protection.

Appellant's Arguments

• Section 377 has enabled harassment, intimidation, and persecution of gay men in India, including by police and family members.
• The Delhi High Court judgment’s applicability outside Delhi is uncertain, and section 377 continues to be used against same-sex oriented males.
• Same-sex oriented males face ongoing intimidation, harassment, violence, and discrimination, including in healthcare, employment, and housing.
• The Appellant is not a member of recognized third gender groups and lacks family support, increasing his vulnerability to persecution and forcing reliance on sex work if returned.
• Internal relocation is not a viable option due to the need to hide one’s sexual orientation and limited support networks.
• Removal would interfere with the Appellant’s family life with his UK partner, engaging Article 8 ECHR, and such removal would be disproportionate.
• Following the CJEU decision, the Appellant should not be required to conceal his sexual orientation to avoid persecution.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully examined the evidence, including the Appellant’s personal circumstances, expert testimony from Dr Khanna, and extensive country background material. It acknowledged that section 377 IPC criminalises same-sex sexual activity, but prosecutions for consensual adult acts are extremely rare and have always been so.

The Tribunal accepted that some same-sex oriented males face ill treatment, extortion, harassment, and discrimination from police and society, but found the prevalence and scale of such incidents insufficient to amount to a real risk of persecution under the Refugee Convention, Qualification Directive, or Article 3 ECHR.

The Tribunal noted that social attitudes and conditions for same-sex oriented males in India are slowly improving, with visible LGBT activism and support networks mainly in major cities. Internal relocation to such cities is generally reasonable and not unduly harsh for those at risk.

Regarding the Appellant’s individual circumstances, the Tribunal found that although he suffered adverse treatment in India, including arrest and police ill treatment, it is not reasonably likely he would face persecution if returned. The Appellant’s lack of family support and inability to live openly without discretion were considered, but the Tribunal found he could access support networks and employment, including self-employment.

On Article 8 ECHR grounds, the Tribunal accepted the existence of family life with the Appellant’s UK partner and acknowledged that removal would interfere with this. However, after weighing factors including the Appellant’s immigration history, the nature and extent of the relationship, and public policy considerations, the Tribunal concluded that requiring the Appellant to return to India to apply for entry clearance was proportionate.

The Tribunal also evaluated the impact of the Indian Supreme Court’s 2013 decision and the CJEU ruling, finding that neither altered the overall conclusion that the Appellant did not face a real risk of persecution or inhuman treatment if returned.

Holding and Implications

The appeal is dismissed on all grounds.

The Tribunal set aside the prior First-tier Tribunal decision for legal error and re-made the decision, concluding that the Appellant does not qualify for protection under the Refugee Convention, Qualification Directive, or Article 3 ECHR. Although removal interferes with the Appellant’s Article 8 rights, such interference is proportionate in the circumstances, including the requirement to return to India to apply for entry clearance.

The decision does not establish new legal precedent but provides detailed country guidance on the situation of same-sex oriented males in India, emphasizing that while discrimination and some ill treatment occur, the overall risk does not meet the threshold for protection in the majority of cases. Internal relocation to major cities is generally available and reasonable.

An anonymity direction was made to protect the Appellant’s identity in reporting.