Mx M (gender identity – HJ (Iran) – terminology) [2020] UKUT 313 (IAC)
Mx M is a citizen of El Salvador who initially claimed asylum as a gay man. However, the basis of the claim changed because Mx M’s identity evolved while living in the UK. At the date of the hearing, Mx M identified as non-binary and was a member of the wider LGBTI community.
The First-Tier Tribunal (FTT) dismissed the appeal on the basis that the treatment which Mx M suffered in El Salvador did not amount to “systematic discrimination at the hands of the state” (para 6).
On appeal, the Upper Tribunal (UT) found that the principles in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 were engaged as the claim raised a fear of persecution because of membership of a particular social group (PSG) (para 10). The UT noted that the HJ Iran principles had not been applied by the FTT (para 12).
Due to various errors in the FTT’s determination, the UT set it aside and remade the decision. Firstly, the UT affirmed that Mx M belonged to a PSG on account of being non-binary, and “their identity is visibly ‘other’” (para 39). Secondly, the UT found that the second question i.e. “Do members of this particular social group face persecution in El Salvador if they live openly?” should be answered affirmatively. This is because the new Country Policy and Information Note (CPIN) entitled Gangs: El Salvador undermined the FTT’s conclusions on whether Mx M would face persecution (para 41).
Ultimately, the UT allowed the appeal on protection and human rights grounds.