A recent UK Supreme Court case concerned the deportation of gay asylum seekers. As the UKSC blog explained:
Under the Convention on the Status of Refugees, members of particular social groups (which can include groups defined by their sexual orientation) are entitled to asylum where they can establish they would face a well-founded fear of persecution if they returned to their home states. The issue concerned the extent to which those who seek asylum will, if returned to their countries of origin, be able to conceal, or at least be discrete about, characteristics of themselves which give rise to the fear of persecution. The Supreme Court unanimously overturned the Court of Appeal’s decision that it was permissible to return a person if they would conceal their sexuality in order to avoid being persecuted, provided their situation could be regarded as “reasonably tolerable”. To compel gay people to pretend their sexuality does not exist is to deny him his fundamental right to be who he is. Simple discriminatory treatment does not give rise to protection under the Convention, but the Convention does not envisage applicants being returned to their home country “on condition” they take steps to avoid offending their persecutors.
The full judgement is available here.
In HJ (Iran) v Secretary of State for the Home Department  UKSC 31 the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries. The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation. It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly – act on their sexual orientation) they would not invite persecution…
He goes on to review some American legal comment on the decision, and concludes:
…what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts. But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described. Rather the tenor of the whole court’s decision in HJ (Iran) is that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.
The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.