Litigation update: Algerian gay country guidance case

Luqmani Thompson & Partners represented the appellant in OO (gay men: risk) Algeria [2013] UKUT 00063 (IAC), a country guidance case relating to the return of individuals fearing persecution in Algeria based on sexual orientation.

The case was heard in the Upper Tribunal which found as follows:

1. “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 3 years imprisonment and/or a fine.

2. Criminal prosecutions of gay men under Articles 388 and 333 are, however, extremely rare.

3. The evidence does not suggest that, as a 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.

4. That conclusion is reinforced by the evidence that the admittedly small number of gay men who live openly as such in Algeria do not, in general, suffer serious harm amounting to persecution.

5. If somebody is able to establish that their behaviour was shaped by more than disapproval amounting to serious harm, they may be able to establish a need for protection. Each case should be determined on the evidence specific to that particular case.

However, on 23 January 2014, Lord Justice Maurice Kay granted permission to appeal to the Court of Appeal both in respect of the Applicant’s own case and the country guidance aspects of the case. He stated in respect of paragraph 85(c)-(e) of the Tribunal’s determination:

“The submission by Ms Chapman is that those paragraphs do not live easily with the judgment of Lord Rodger in HJ (Iran) where he considered circumstances in which homosexuals might live discreetly in their home country for mixed rather than singular reasons. Ms Chapman submits that that calls for a nuanced approach in guidance whereas that contained in paragraph 85(c)-(e) in the decision of the Tribunal is, by comparison, somewhat simplistic.

“In my judgment that is certainly an arguable criticism in a country guidance case which if applied across the board might be capable of causing injustice. It is my concern about that that has tipped me into granting permission to appeal notwithstanding the difficulties the Applicant may have in relation to his own particular case.”

Rebecca Chapman, Garden Court Chambers instructed by Ayesha Mohsin of Luqmani Thompson & Partners

11.03.2013 – One of the leading cases on the introduction of the new Immigration Rules, involving a client represented by Luqmani Thompson & Partners, has attracted widespread press coverage, including in the Law Gazette.