27 January 2011

FOURTH SECTION
Application no. 26550/10
by D.B.N. 
against the United Kingdom
lodged on 11 May 2010

STATEMENT OF FACTS
THE FACTS
The applicant, Ms D.B.N., is a Zimbabwean national who was born in 1978 and lives in London. She is represented before the Court by Ms A. Gonzalez, a lawyer practising with Wilsons Solicitors LLP in London, assisted by Ms B. Asanovic and Ms C. Meredith, Counsel.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 8 February 2009 and made an asylum application on 18 March 2009.
1. The basis of the applicant’s asylum claim
The applicant claimed that she would be at risk of ill-treatment in Zimbabwe both because of her sexuality and because, unable to demonstrate support for President Robert Mugabe’s Zanu-PF party, she would be perceived as being in opposition to the Zimbabwean authorities. She claimed that, as a “butch” lesbian who dresses like a man, she would be at risk in Zimbabwe, not only from her family, but also from the wider community because of their attitude towards gays and lesbians.
She claimed that in 1993, when she was 15 years of age, she had informed her family that she was a lesbian, following which her family and her siblings had shunned her and called her names. One year later, she had been “outed” as a lesbian to the local community by her sister. Since then, she had lived openly as a lesbian woman and claimed that, as a result, she had been harassed, threatened and attacked in Zimbabwe.
She claimed that in 1995, her cousin had attempted to rape her in front of her younger sisters in an attempt to cause her to “forget” her lesbian thoughts and become a “real woman”. Her mother had refused to do anything to assist her.
In June 1996, the applicant and her then girlfriend, S, were beaten up and gang-raped by a group of six men for two hours. Their attackers asked about their sexuality, told them that they wanted to teach them a lesson and ordered them to stop being gay. The attack only ceased when passersby came across them and their attackers fled. The applicant’s father would not allow the applicant to report the matter to the police or to seek medical attention due to the shame that he believed it would bring upon the family. In August 1996, both the applicant and S discovered that they were pregnant. S committed suicide six months later. At S’s funeral, the applicant was blamed for her death by S’s father and the local community.
In March 1997, the applicant gave birth to her son who had been conceived by the rape and, nine months later, she also attempted to commit suicide.
In 2000, the applicant began a relationship with her current partner Y.
In July 2005, the applicant was attacked by three men and two women who called her names, threatened her, beat her and said that all lesbians should be killed. After the attack, her family stated that they believed that she deserved to be raped or killed.
On 27 July 2006, the applicant’s brother was killed in a car accident when driving the applicant’s van which was being pursued by another car. When confronted, the people in the other car stated that they were looking for the applicant and that they would kill her if she continued to be a lesbian. The applicant’s brother continued driving but lost control of the van and was killed. The applicant’s nephew was also in the van but fortunately survived with a broken arm and a broken leg. The applicant was blamed for her brother’s death by her family. She was forced to move out of the family home and moved in to her partner Y’s mother’s home with her son.
In November or December 2008, when the applicant was walking with Y, she was attacked by four men who brought up her sexuality during the attack. The applicant was kicked and beaten until she fell unconscious. After the attack, the applicant was admitted to hospital for two days. She later required surgery for ligament and cartilage damage to her knee.
Whilst recuperating at Y’s brother’s house, the applicant decided that she could not continue with the treatment and harassment that she was receiving in Zimbabwe because of her sexuality and therefore accepted an opportunity to travel to the United Kingdom.
2. The Secretary of State’s refusal of her asylum claim
On 24 April 2009, the applicant’s asylum claim was refused by the Secretary of State. It was accepted, inter alia, that the applicant was a lesbian; that some lesbians in Zimbabwe faced discriminatory treatment; and that the incidents in 1996, 2005 and 2008 had occurred as the applicant had described them due to her sexuality.
However, given that the applicant had never been arrested or detained in Zimbabwe, it was not accepted that there was any evidence that she would be at risk of persecution on the grounds of her sexuality on return to Zimbabwe. Furthermore, it was considered that there was no evidence to show that her brother’s death had been anything other than a tragic accident. Moreover, due to the fact that the attacks had been caused by her family, it was considered that the applicant could relocate to a different area of Zimbabwe to avoid any further problems. Additionally, the fact that the applicant’s partner, Y, remained in Zimbabwe working as a teacher for the government indicated that the Zimbabwean authorities had no interest in pursuing her on the basis of her sexual orientation. The applicant had managed to live in Zimbabwe between 1996 and 2005 without any problems; the objective evidence indicated that the gay and lesbian scene in Zimbabwe was vibrant and flourishing; and the Secretary of State therefore considered that the Zimbabwean authorities were tolerant towards lesbians.
In sum, although it was accepted that the applicant had been attacked previously in Zimbabwe due to her sexuality, it was not accepted that that entitled the applicant to refugee status because her problems had been caused by her family and she had not encountered any problems from the Zimbabwean authorities.
In relation to her claim that she would be at risk because she would be perceived as a dissident by the Zimbabwean authorities due to the length of time that she had spent in the United Kingdom, the Secretary of State did not accept that the level of violence which had occurred at the time of the 2008 elections in Zimbabwe had been repeated and considered that the situation differed from that on which the country guidance case of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (see domestic law and practice below) had been based. Owing to the fact that the applicant had no political profile, it was not considered that she had provided any valid reason for her to be adversely targeted by the Zimbabwean authorities upon return.
3. The grounds of the applicant’s appeal
The applicant appealed relying, inter alia, on Articles 2, 3 and 8 of the Convention. In support of her appeal, she submitted a detailed and extensive expert report on the legal and social treatment of lesbians in Zimbabwe. That report set out, inter alia, the repeated calls by Zimbabwean parliamentarians for the arrest and detention of homosexuals (male and female) since 1995; and President Mugabe’s notoriety as the most outspoken and well-publicised detractor of homosexuality, fully supported both by Zimbabwean parliamentarians and the police. The report explained that such a governmental attitude towards homosexuals and lesbians not only inspired members of the public to take the law into their own hands but also indirectly condoned physical attacks on lesbians and significantly increased the vulnerability of homosexuals.
The report described that gay men and lesbians who identified themselves publicly were physically threatened, harassed, extorted, discriminated against, beaten up and sometimes raped on account of their sexual orientation. It further explained that physical attacks on lesbians tended to be more violent given the status of women in society and the fact that lesbians were seen by family members, the community and state agents as legitimate targets for “corrective” rape and/or other forms of physical and sexual abuse.
Furthermore, the report explained that the police were unwilling to offer any protection to homosexuals and, indeed, often both explicitly encouraged and actively colluded in attacks against homosexuals. The report made clear that these problems were not limited to some areas in Zimbabwe but occurred nationally so moving to another area would not reduce the likelihood of homophobic attacks.
4. Proceedings before the, then, Asylum and Immigration Tribunal (“AIT”)
On 30 July 2009, the AIT dismissed her appeal. The Immigration Judge accepted that the applicant’s account of what had happened to her in Zimbabwe was credible and accepted that the applicant had been raped in 1996; had been assaulted in 2005; and had been attacked in 2008. He further accepted that there was discrimination towards lesbians by certain sections of society in Zimbabwe but stated that:
“any discrimination experienced by the appellant was limited. The basis of this conclusion is that she was able to work without difficulty and the amount of incidents which actually occurred were small bearing in mind the period of time they occurred over.”
In relation to the incident where the applicant and S had been raped, the Immigration Judge commented that:
“the appellant’s account seemed to fit the pattern of behaviour outlined by Professor Phillips. It could of course be argued that single women who are unmarried are always at risk to male predators...
...
The incident when she was raped could have happened to any single female.”
The Immigration Judge considered that the other incidents described by the applicant were both localised and connected to her brother or his associates. Accordingly, the Immigration Judge was satisfied that any problems that the applicant might experience upon return would not be insurmountable. It would not be unreasonable to expect the applicant to relocate to another area to avoid her brother and his associates because she had demonstrated an ability to work and it was clear that during the lengthy relationship she had had with her partner that, as a couple, they had not been attacked.
In relation to her fear of the Zimbabwean authorities, the Immigration Judge found that the applicant had failed to put before him any evidence to suggest that she would be unable to show that she did not support the Zanu-PF party. He noted that there was no evidence that she had ever supported the MDC (“the Movement for Democratic Change”) or that she had been arrested or harmed as a result of her activity. Further, she had not experienced any problems with the authorities whilst with her girlfriend who was a teacher. He was therefore not satisfied that the applicant would fall into the risk category considered in RN (cited above).
In conclusion, the Immigration Judge found that the applicant had failed to demonstrate that there were substantial grounds for believing that she ran a real risk of suffering treatment contrary to Article 3 of the Convention upon return to Zimbabwe.
On 24 August 2009, a Senior Immigration Judge refused her application for reconsideration. He found that whilst her main complaint was that the Immigration Judge had not taken proper account of the expert report prepared by Professor Phillips, his summary of it was thorough and it was clear from reading the determination as a whole that the Immigration Judge had not reached findings in isolation from the report. Furthermore, the Immigration Judge had not failed to apply the country guidance case of RN (cited above).
On 20 October 2009, the High Court dismissed a further application for reconsideration, considering that the appeal determination was “exceptionally comprehensive and detailed” and that the Immigration Judge had considered a wealth of country material which touched on the issues that he had to decide. It stated that:
“Accepting, as he did, that the applicant is a lesbian who had suffered an attack in 1996 and then further problems in her home locality in 2005, 2006 and 2008 probably initiated by her family, the history of both her life and that of her partner Yvonne, suggested that the claim for asylum was not made out. In particular, fears about the home locality could be met by adopting reasonable discretion and/or moving away.”
B.  Relevant domestic law and practice
1. Asylum and human rights claims
Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.
Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant could renew the application to the High Court, which would consider the application afresh.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
2. Country guidance determinations
Country guidance determinations are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
In the country guidance determination of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, the AIT found, inter alia, that:
“Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF.
...
Although a power sharing agreement has been signed between Mr Mugabe on behalf of Zanu-PF and Mr Tsvangirai on behalf of the MDC, the evidence presented does not demonstrate that the agreement as such has removed the real risk of serious harm we have identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.
General country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under Article 3 of the Convention. But that will not always be the case and each claim must be determined upon its own facts.”
3. HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, [2010] UKSC 31
The above case considered the asylum appeals of two homosexual men, from Iran and Cameroon respectively, who claimed that they would risk persecution on the grounds of their sexual orientation if returned to their countries of origin. The Supreme Court unanimously ruled that requiring gay asylum seekers to be discreet upon return to their countries of origin to avoid persecution undermined the underlying rationale of the 1951 Refugee Convention.
Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at paragraph 82 of the judgment, provided detailed guidance in respect of the test to be applied by the Secretary of State, lower tribunals and courts in determining claims for asylum based on sexual orientation as follows:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living “discreetly”.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, eg, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”

4. EM (Lebanon) (FC) v Secretary of State for the Home Department (Respondent) [2008] UKHL 64
In the above case, the House of Lords considered the claim of a Lebanese asylum seeker to remain in the United Kingdom to avoid, upon return to Lebanon, the automatic transfer of the custody of her 12 year old son to his father, who had been violent to her and who her son did not know, and the subsequent adverse impact upon the family life of her and her son.
Their Lordships noted that the child had not seen his father since the day that he had been born, nor had he had any contact with any of his father’s relatives. Thus, they considered that, realistically, the only family which existed consisted of the applicant and her son. The evidence made plain that the bond between the applicants was one of deep love and mutual dependence which could not be replaced by a new relationship between the child and his father who had inflicted physical violence and psychological injury on his mother; who had been sent to prison for failing to support his mother; who the child had never consciously seen; and towards whom the child understandably felt strongly antagonistic. The Lordships also considered that such family life could not be replaced by a new relationship with an unknown member or members of his father’s family; and that in no meaningful sense could occasional supervised visits by the applicant mother to her son at a place other than her home, even if ordered by the Lebanese courts (and there was no guarantee that they would be ordered), be described as family life.
In the particular circumstances of the case, as set out above, their Lordships unanimously found that the return of the applicants to Lebanon would “flagrantly violate or completely deny and nullify” their rights under Article 8 of the Convention.
C. Relevant background information
1. United Kingdom Government report
The United Kingdom Border Agency Country of Origin Information Report on Zimbabwe of 23 December 2009 (“the COI Report”), at paragraphs 20.01 to 20.23, set out information about the legal rights, treatment by and attitudes of the Zimbabwean authorities towards lesbian, gay, bisexual and transgender (“LGBT”) persons. It stated:
“The Gay Times (accessed on 2 December 2008) noted that: ‘The last few years have seen attacks of extraordinary virulence on Zimbabwe’s lesbian and gay community, led by Robert Mugabe.’ The Zimbabwean government has a history of homophobia extending back to at least 1995. Behind the Mask (accessed on 2 December 2008) noted that: The Zimbabwean president and government are extremely homophobic to the point of obsession. Mugabe has in the past said of gays: ‘What an abomination, a rottenness of culture, real decadence of culture. Homosexuals are repugnant to my human conscience ... immoral and repulsive ... Lower than pigs and dogs ... Animals in the jungle are better than these people because at least they know that this is a man or a woman ... I don’t believe they have any rights at all.”
The COI Report also made clear that the situation of lesbians must be read in conjunction with the situation of women in Zimbabwe generally where they are not afforded any real status in society. It set out that:
“A woman is not thought of as owning a sexuality independent of the needs of men and the idea of sexual expression not involving penetration is entirely alien to the machismo mentality. For these reasons and others related to the general invisibility of lesbian and bisexual women in public spaces, the majority of Zimbabweans believe that it is illogical for lesbians to exist in African cultures.”
2. United States of America Department of State Country Report on Human Rights Practices - Zimbabwe
The 2009 Zimbabwe report, published on 11 March 2010, set out that:
“Over a period of years, Mugabe publicly denounced the LGBT community, blaming them for Africa’s ills. Although there was no statutory law proscribing homosexual conduct, common law prevents homosexual men, and to a lesser extent, lesbians, from fully expressing their sexual orientation and, in some cases, criminalizes the display of affection between men.
...
General homophobia and restrictive legislation made it difficult for the LGBT community to feel safe about being open about their sexuality in public. Because of significant social pressure, some families reportedly subjected men and women to “corrective” rape and forced marriages to encourage heterosexual conduct; the crimes were rarely reported to the police. Women in particular were subjected to rape by male members of their own families.”
3. The Immigration and Refugee Board of Canada (“the IRB”)
In its report, published on 15 February 2006, entitled “Zimbabwe: Situation of gays and lesbians including societal attitudes, treatment by government or state security forces; availability of state protection (2004 – February 2006), the IRB quoted the Harare-based organisation Gays and Lesbians of Zimbabwe (“GALZ”) as follows:
“The position of lesbian and gay people is little different from any other perceived enemy of the state. Government clamps down on anyone who is either perceived as a threat to its powerbase or who is useful as a political scapegoat. This includes racial minorities such as whites, tribal minorities such as the Ndebele and Tonga, political opposition and the free press. We all live in a climate of fear. However, the position of lesbian and gay people is worsened by the fact that government has whipped up a climate of hysterical homophobia which gives homophobic elements in the population license to target gays and lesbians with violence, abuse and blackmail. Although younger people, especially in urban areas, are generally more tolerant having grown up with the knowledge that gay and lesbian people exist in their midst, older generations, in particular in rural areas, tend to be extremely homophobic. Some consider homosexuality an illness requiring the attention of faith healers.
That said, Zimbabwe is not the worst country in the world in which to be gay or lesbian. There have been no extra-judicial killings that we have come across which are directly linked to a person’s sexual orientation. Homophobia is largely vocal and the state-controlled press reinforces stereotypes of lesbian and gay people being by nature criminal westerners who are part of an international plot to destabilise Zimbabwe and corrupt its children and culture. Gay and lesbian people, like many others, have no right of reply using government-controlled media. This means that there are often violent incidents when GALZ appears in public spaces.”
With regard to state protection, the report noted that Robert Mugabe had openly condemned homosexuality on numerous occasions and further quoted GALZ as stating that:
“the law is homophobic. Consensual sodomy between men carries a maximum sentence of one year or a maximum fine equivalent to rape or both. There is no law criminalising sex between women but this makes little difference in a country where most women do not enjoy the right to bodily integrity. Women’s sexuality is generally not recognised and a lesbian woman who can do without men, even when it comes to sex, is considered an even greater threat than a homosexual man.
In terms of the police, the lower ranks are often friendly towards lesbian and gay people. Higher up, police officers bend to [the] will of their political masters and have been known to act violently towards lesbians and gay men – in particular those who are black – because they perceive them as traitors to the state. The police have also been known to be linked to blackmailers...”
4. Non-governmental organisations’ reports
Human Rights Watch and the International Gay and Lesbian Human Rights Commission in a report entitled “More than a Name”, published on 13 May 2003, recounted many widely publicised statements made by President Robert Mugabe calling for homosexuals to be cast out of society. The report explained that “for Zimbabwe’s government, verbal fusillades against homosexuals proved the opening shots in a violent campaign against all independent social movements and any organized opposition.”
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention that she faces a real risk of being killed unlawfully or ill-treated if returned to Zimbabwe on the basis that (i) she is a lesbian woman who has previously been attacked due to her sexual identity and has been disowned by her family; (ii) she would be unable to demonstrate loyalty to the Zanu-PF; and (iii) she is a member of a group, lesbian women, who are systematically exposed to a practice of ill-treatment in Zimbabwe.
Further, she complains under Article 8 of the Convention that her removal to Zimbabwe would completely destroy her right to private life and physical and moral integrity as it protects gender identification, sexual orientation and sexual life.
She also complains under Article 13 that she was not afforded an effective remedy in respect of her Article 3 claim because the statutory review mechanism enacted by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 precluded judicial review.
Finally, she complains that the statutory review mechanism was discriminatory under Article 14 read in conjunction with Articles 3 and 13 because it only applied to non-nationals.
QUESTIONS TO THE PARTIES

1. Are there substantial grounds for believing that the applicant, if removed to Zimbabwe, would be at real risk of death or ill-treatment, in breach of Articles 2 and/or 3 of the Convention?

2. Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v Secretary of State for the Home Department (Respondent) [2008] UKHL 64)?