Lord ordinary rules asylum claim of gay Indian national cannot be regarded as clearly unfounded

About this case:

• Citation:
  [2025] CSOH 88
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Petitioner SV, who initially entered the UK on a student visa and later obtained extended leave to remain until December 2023, sought to challenge the Home Office’s certification of his claims, dated 3 June 2024, based on his nationality of a state listed in section 94(4) of the Act. The respondent contended that the petition had not demonstrated that it was appropriate to depart from the relevant Country Guidance case.

The petition was heard by Lord Lake in the Outer House of the Court of Session. Shabbir, advocate, appeared for the petitioner and Smeaton, advocate, for the respondent.

Forced to hide

Under section 94(3) of the 2002 Act, if the respondent is satisfied that a person is entitled to reside in a state listed in section 94(4), including India, their claim was to be certified as clearly unfounded unless the respondent was satisfied that it was not. The Home Office Country Guidance for India stated that, although homosexuality remained taboo in India and was still seen as socially unacceptable, there was no real risk of consensual sexual activity between males being prosecuted.

The CG relied on the Upper Tribunal case of MD India CG (2014), in which it was accepted that homophobic violence occurred in India and working class or lower caste individuals were more vulnerable. However, the tribunal did not accept that there would be difficulty in obtaining employment. The petitioner contended that the weight to be given to the country background evidence was dependent on the quality of the raw data and the filtering process to which it was subjected.

It was further submitted for the petitioner that the respondent had applied the wrong test and had considered whether he would be able to live safely as an openly gay man. A Tribunal hearing his appeal might conclude that there was discrimination and widespread disapproval of homosexuality in the general community in India and that although homosexual acts were no longer criminalised, there remained the risk of harassment and violence against gay persons and that the petitioner might be forced to hide his sexual orientation or to live a discreet life on the basis of his fear of being abused, harassed or discriminated against.

For the respondent it was submitted that the decision considered all aspects of the claim and was sufficiently detailed. The petition did not set out the significant obstacles the petitioner would face, and his fear seemed to be centred on the reaction of his own family and their ability to find him. No basis had been established for departing from the Country Guidance.

A low test

In his decision, Lord Lake began by observing: “It is necessary to keep in mind the test that must be applied to the issue before me. So, although I agree with the submission for the respondent that the decision which was made takes into account relevant factors and is properly reasoned, while those factors would be determinative or at least very relevant in a normal judicial review, on the test that must be applied here they are of little assistance.”

He added: “Similarly, although if I was required to address the merits of the petitioner’s claim, I might very well decide against him, that too is not the issue before me. What I have to decide is whether or not his claim is clearly unfounded. As noted in SN v Secretary of State for the Home Department (2014), this is a low test.”

Noting that the effect of the MD case on the current claim, Lord Lake said: “The decision in MD is to the effect that it cannot be said that the threshold for a protection claim is met. Here, however, the claim made is no longer a protection claim – it is solely that the petitioner’s Article 8 rights would be infringed.”

He continued: “I do not consider it is necessary to go behind or disregard what he said in MD to reach a conclusion that a Tribunal in future might reach a conclusion that the petitioner’s sexuality means he would be unable to integrate. I do not consider it is necessary to go behind or disregard what was said in MD to reach a conclusion that a Tribunal in future might reach a conclusion that the petitioner’s sexuality means he would be unable to integrate.”

Lord Lake concluded: “I accept entirely that there are arguments to be made to the contrary, but the dispute between these positions is not for me to resolve in this action. Having regard to the material put before me, I consider that it cannot be said that there is no possibility that a Tribunal would accept that, on return to India, the petitioner would face very significant obstacles to reintegration and decide in his favour.”

On this basis, the court granted the reduction sought by the petitioner.