Factual and Procedural Background
The Appellant, a national of El Salvador born in 1991, identifies as non-binary and appeals against the decision of the First-tier Tribunal dismissing their appeal on protection grounds. The claim is based on membership of a particular social group defined by sexual orientation and gender identity, asserting a real risk of persecution in El Salvador due to their LGBTI status. The Appellant alleged past persecution by police and the public, including physical assault and daily discrimination, and claimed state protection in El Salvador was insufficient to prevent future harm.
The initial asylum claim was lodged in October 2017 and refused, with a first appeal dismissed in January 2019. Further submissions were made in September 2019, resulting in a fresh claim refusal by the Respondent and a second right of appeal. The First-tier Tribunal in 2019 and again in 2020 found that the Appellant had not demonstrated a risk of persecution, categorising past incidents as discrimination rather than persecution and concluding El Salvador provided sufficient state protection.
Legal Issues Presented
- Whether the Appellant is a member of a particular social group for the purposes of asylum protection.
- Whether members of this social group face persecution in El Salvador if they live openly.
- How the Appellant would behave if returned to El Salvador, specifically whether they would live openly or discreetly.
- If the Appellant would live discreetly, whether that choice would be informed by a fear of persecution.
- Whether the First-tier Tribunal erred in law by failing to apply the legal framework established in HJ (Iran) and HT (Cameroon) concerning claims based on sexual orientation and gender identity.
Arguments of the Parties
Appellant's Arguments
- The Appellant identifies as non-binary and requests respect for this identity, including the use of gender-neutral pronouns.
- The First-tier Tribunal failed to apply the legal framework from HJ (Iran) concerning persecution of individuals based on sexual orientation and gender identity.
- The Tribunal erred by not adequately considering evidence relating to the Appellant's changed identity and the associated risks.
- The Tribunal ignored significant country background material, including UNHCR guidelines and reports showing widespread and severe violence against LGBTI individuals in El Salvador, especially transgender women.
- The Tribunal wrongly classified serious past assaults and daily abuse as mere discrimination rather than persecution.
- The Appellant would be forced to live discreetly due to fear of persecution, not personal choice, thus entitling them to protection under the Refugee Convention.
Respondent's Arguments
- The Respondent accepted the Appellant as a member of a particular social group but contended that El Salvador could provide sufficient protection against persecution.
- The Respondent relied on findings that the Appellant's past incidents did not amount to persecution and that the country background did not demonstrate a real risk of persecution.
- The Respondent considered that the Appellant could avoid risk by living discreetly in El Salvador.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 |
Framework for assessing asylum claims based on sexual orientation and gender identity, including the requirement to consider if an applicant would live openly or discreetly and the implications thereof. |
The court applied the HJ (Iran) framework as the correct legal test, finding it was not applied by the First-tier Tribunal and that its application warranted allowing the appeal. |
| Devaseelan (Second Appeals - ECHR - Extra-territorial effect) Sri Lanka [2002] UKIAT 00702 |
Binding effect of earlier First-tier Tribunal findings in subsequent appeals. |
The Tribunal was bound to take prior findings as a starting point but the Upper Tribunal found errors in the application of these findings. |
| HF (Iraq) v Secretary of State for the Home Department [2013] EWCA Civ 1276 |
Respect due to UNHCR guidelines in asylum claims. |
The court held it was incumbent on the Tribunal to consider UNHCR guidelines, which the First-tier Tribunal failed to do. |
| R v Secretary of State for the Home Department (ex parte Robinson) [1997] 3 WLR 1162 |
Definition and threshold of persecution in asylum claims. |
The court found the First-tier Tribunal misdirected itself by equating serious homophobic assault and daily abuse to mere discrimination rather than persecution. |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
Definition of persecution as harm of sufficient intensity or duration that the person cannot reasonably be expected to tolerate it. |
The court applied this principle to conclude that daily abuse and physical assault met the threshold of persecution. |
| Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15 |
Endorsement of the hierarchy of harms constituting persecution. |
Referenced in support of the interpretation of persecution and the application of Article 9 of the Qualification Directive. |
| Horvath v Secretary of State for the Home Department [2001] UKHL |
Interpretation of persecution and non-derogable rights under the ECHR. |
Supported the court's analysis of the severity of harm required to constitute persecution. |
| R v Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm AR 7 |
Definition of persecution as "pursuing with malignancy or injurious action". |
The court used this definition to assess the nature of the daily abuse faced by the Appellant. |
Court's Reasoning and Analysis
The court began by emphasizing the importance of respecting the Appellant's self-identified gender identity and the use of appropriate terminology, as guided by the Equal Treatment Bench Book and relevant asylum policy instructions. It found the First-tier Tribunal failed to properly recognise the Appellant's non-binary identity and did not apply the legal framework from HJ (Iran), which is central to claims based on sexual orientation and gender identity.
The court identified three principal errors in the First-tier Tribunal’s reasoning: (1) failure to consider all relevant country background evidence, including UNHCR guidelines and reports indicating severe violence against LGBTI individuals, especially transgender women, in El Salvador; (2) a perverse conclusion that the evidence did not support a real risk of persecution, despite reports of targeted violence, murder, and police abuse; and (3) mischaracterizing serious past assaults and daily abuse as mere discrimination rather than persecution, contrary to the Qualification Directive and ECHR Article 3.
Applying Article 9 of the Qualification Directive and the jurisprudence on persecution, the court found that the physical assault by police and the daily abuse, including being pelted with rubbish and urine, met the threshold of persecution due to their severity and the nexus to the Appellant’s protected characteristic.
Regarding the question of how the Appellant would live if returned, the court noted the lack of clear findings by the First-tier Tribunal. Evidence showed the Appellant would likely live discreetly due to fear of persecution, not personal preference, which under HJ (Iran) entitles them to protection. The court also considered detailed background evidence confirming that El Salvador’s criminal justice system is unlikely to offer effective protection against gang violence and state complicity.
Consequently, the court concluded that the First-tier Tribunal’s decision contained material errors of law and that the appeal should be allowed.
Holding and Implications
The Upper Tribunal Judge SET ASIDE the decision of the First-tier Tribunal and ALLOWED the appeal on protection and human rights grounds.
The court ordered anonymity for the Appellant in accordance with Tribunal Procedure Rules and Presidential Guidance. The decision directly affects the parties by granting protection to the Appellant but does not establish new legal precedent beyond applying existing authoritative principles to the facts of this case.