Second Shut down BMI day

November 20th 2008: Shut down BMI day

Everyday, an average of 180 migrants are deported from the UK. That's one person every eight minutes.

They haven't done anything wrong.

They are criminalised for doing what humans have done for thousands of years: moving in search of a better life. Moving to escape war, persecution, torture, physical abuse, poverty...

Governments across the world do not want us to see those being deported as people. They want to shroud them under statistics and treat them as pieces of meat.

Airline companies are a key link in the deportation industry. Without them it would be impossible for the state to implement this aspect of the migration regime and there can be no migration controls without deportations.

People being deported are often handcuffed on the flight and there have been numerous reports of physical assaults on people being deported by the security personnel who escort them.

On 20th September 2008, No Borders South Wales activist Babi Badalov was deported on a BMI flight to Azerbaijan. In an email following the deportation, BMI CEO Nigel Turner said that:

"I do not have the time or resources to investigate each case myself nor
do BMI”

But BMI were given plenty of information and time to 'investigate'. Despite hundreds of telephone calls, emails and faxes to BMI raising objections to the removal, they chose to ignore this and ensured that the deportation took place.

BMI employees told those ringing on the day that they could not refuse to carry people being removed and it was out of their control. However, other airlines have refused to carry out deportations in the past. XL Airways announced in 2007 that they would no longer carry refused asylum-seekers who were being forcibly removed from the UK.

BMI is the UK's second largest full service airline. By taking part in deportations, they do the governments dirty work for them and in the process, make money from human misery. In 2007 BMI reported profits of £15.5 million. How much of this was soaked in the blood of migrants who
they deported against their will?

Following the successful day of action against BMI on October the 20th, No Borders South Wales are calling for another day of action to shut down BMI on the 20th of November.

We call on BMI to no longer take part in the forced deportation of migrants.

We are focusing this campaign around the 20th day of each month, after the date that BMI took Babi away from those who loved him and those he loved.

Please contact BMI and register your disapproval at their role in deporting people to places they do not wish to go back to, for whatever the reason this may be. Urge BMI to follow the other airlines who have taken an ethical stance and who refuse to carry out any more deportations.

On 20th November let's once again hit BMI with everything we've got! Ring, fax and e-mail the company as much as possible on this day and every month thereafter until BMI no longer take part this cruel practice.

BMI flights operate from the following UK Airports:

Aberdeen, Belfast (City), Birmingham, Bristol, Durham Tees Valley, East Midlands, Edinburgh, Glasgow, Jersey, Leeds Bradford, London City, London Gatwick, London Heathrow, Manchester, Newcastle International, Norwich.

BMI Contact Details

Head office
Donington Hall, Castle Donington, Derby. DE74 2SB

E-mail Nigel Turner, BMI Chief Executive Officer at:
nigel.turner@flybmi.com

Switchboard
Telephone: 01334 854 000
Open Mon-Fri 8am-6pm

Customer Relations
Telephone: 01332 854 321
Fax: 01332 854 875
Open: Mon-Fri 9:30am-4:30pm

Reservations and general enquiries
Telephone: 01332 854854 & 01332 648181
Fax: 01709 314993
Opening hours: 7am-9pm

Bmi baby reservations
Telephone 01332 648181
Opening hours: 8am-8pm

Yet another Ministerial kick in the teeth for LGBT asylum

Immigration Minister Phil Woolas has condemned websites like this, groups like UK Lesbian and Gay Immigration Group, Churches like Manchester MCC and the thousands of ordinary people who helped save Mehdi Kazemi.

Here's what he said:

In Britain, asylum seekers are given "false hope" by NGOs and migration lawyers. "By giving false hope and by undermining the legal system [they] actually cause more harm than they do good."

So he believes that Britain's asylum system is exploited by migration lawyers and NGOs? "The system is played by migration lawyers and NGOs to the nth degree." In one case, an asylum seeker won after six layers of appeal. "That person has no right to be in this country but I'm sure that there is an industry out there that is a vested interest." He jabs his finger as he recounts desperate asylum seekers visiting his constituency office. "One lady showed me the scars on her thighs from where the soldiers had raped her, so I know, but I cannot take a decision on that lady's behalf if I am," he almost shouts the word, "fogged by cases that are misusing the law." The European Convention on Human Rights, he says, "is meant to protect people from persecution. It is not meant to be an open-borders immigration policy."

Woolas hopes that his willingness to say what many on the left consider unsayable will help shatter the "glass wall" he sees between politicians and ordinary people. He walks out of the sleek glass of the Home Office building and, when he stands in front of an old doorway to have his picture taken, he says he feels "like a nightclub bouncer". He points at me, jokingly in character. "You can't come in," he barks. It seems to come naturally to him.

What a nasty piece of work.

Another Ministerial foot in mouth

In an article about how the UK government 'challenges' the homophobic administration in Kingston Jamaica, UK foreign affairs (DFID) minister Gareth Thomas said the following about LGBT asylum seekers from that country.

"Every case has to be looked at on its own merits. You need to unpick the details of what was alleged to have happened." [Our emphasis]

The article in pinknews.co.uk points out that Thomas has directly challenged Jamaican homophobia, specifically and correctly citing it as an issue in fighting HIV.

But it also inadvertently cites the disconnect at the heart of the attitude to LGBT asylum seekers in the UK's government:

Asylum of course is a Home Office matter - DFID's work tends on the whole to be more positive.

In other words, as we have always said, the Home Office says one thing and the Foreign Office another.

Greek cypriots to deport Iranian gay asylum seeker

IRQO has received news that an Iranian queer asylum seeker is to be deported from Cyprus to Iran.

They are calling for urgent Action to support him and stop his deportation by sending letters to Member of Parliament, European Member of Parliament or directly to the Government of Cyprus.

IRQO say:

"I am very sad to write you about such a bad news but a greek cypriot newspaper "Politis" published a news as follows:

"POLITIS, Iranian person -who asked asylum from government to be a refugee
due to his trouble with Iranian government based on his sexual orientation,-
will be deported. Government announced that Iranian gay will be deported
today or tomorrow.

IRQO say that the Greek Cypriot government refused his asylum because of his sexual
orientation.

According to the newspaper, Government officials said:

"We can not open a window for them and we can not accept gay asylum seekers to come Cyprus."

To STOP his deportation you can contact:
Ms Androulla Kaminara, Head of Representation of the European Commission in
Cyprus
Tel: +357 22.81.77.70
Email: androulla.kaminara@ec.europa.eu
Adamos Adamou, Member of European Parliament,
adamos.adamou@europarl.europa.eu
Panayiotis Demetriou, Member of European Parliament,
panayiotis.demetriou@europarl.europa.eu
Ioannis Kasoulides, Member of European Parliament,
ioannis.kasoulides@europarl.europa.eu
Yiannakis Matsis, Member of European Parliament,
yiannakis.matsis@europarl.europa.eu

Please send a copy of your email to info@irqr.net to let them follow his case.

EU-Regulations and Asylum Issues

Image by centralasian via Flickr

Source: ILGA-Europe

Workshop held at the ILGA Europe Annual Conference , Vienna, 30 October - 2 November 2008

By Sabine Jansen, COC Netherlands

I would like to start with some explanation and a few remarks on the Conventions that apply to LGBT asylum seekers in Europe. After that I will give two examples of issues in asylum policy that form specific obstacles to LGBT people. Then I will say something about two recent cases that are important for the Netherlands and maybe for other European countries as well.

Convention matters

In theory LGBT asylum seekers who flee for reasons related to their sexual orientation or their gender identity in most European countries could qualify for asylum. In the Netherlands this is case-law since 1981. There are two possible ways.

To qualify for a refugee-status under the 1951 Refugee Convention (the Geneva Convention) one should have a well-founded fear of being persecuted for one of the grounds mentioned in this convention: race, religion, nationality, political opinion or membership of a particular social group. Although ‘Sexual orientation’ or ‘gender identity’ are not explicitly mentioned in the Convention, LGBT people can be seen as ‘members of a particular social group’, who share a common characteristic and have a distinct identity due to the perception in the society of origin. On this ground they should be protected against persecution by the Refugee  Convention. 

The second way in which LGBT people could obtain asylum is a status based on Article 3 of the European Convention on Human Rights, that forbids to send someone to a situation where he or she has a ‘real risk’ of being subjected to ‘torture or an inhuman or degrading treatment or punishment’. This is also called ‘subsidiary protection’.

These two asylum statuses are also described in the EU Refugee Status Directive, that has been adopted by the EU member states and came into force in 2004.[1] It contains minimum standards: states are allowed to give more protection than is prescribed by the Directive.

The Directive should have been implemented in your national legislation since October 10th 2006. Now that this date has expired, people can call upon the Directive itself in the national procedures. The national judge should then apply European law.

The Refugee Directive says in Article 10 explicitly that ‘depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation.’ National legislation of the EU member states must therefore include in the ground ‘particular social group’ the possibility of groups based on sexual orientation .

Article 10 continues: ‘Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.’ I do not understand the intention of this phrase. It resembles Country Reports with sentences like: ‘Homosexual acts are punishable by law, the penalty is three years of imprisonment. The penalty on homosexual acts with a minor against his will is seven years.’ We would call this ‘rape’ or ‘child abuse’ instead of homosexuality. This kind of information does not belong in a Country Report chapter on the situation of LGBT people. Why would the Directive describe criminal sexual orientation acts? To exclude criminal asylum seekers one could apply other articles of the Directive.

When I did research on the legal position of homosexual asylum seekers in the Netherlands, I identified several problems, of which I will now describe two examples. If you want more information about these issues, I could send you the article I wrote, although an extra problem is, that it is in Dutch.[2]

State protection against non-state actors

Sometimes LGBT people flee their country of origin, because they are persecuted directly by the authorities. But more often the persecutors are so-called ‘non-state actors’, family, neighbours etc. For a long time the idea was that a real refugee is someone who is politically active and persecuted by the state. So women and LGBTs, who often flee because of violence by sexist or homophobic non-state agents, did not fit this image. It is very important that the Directive explicitly recognizes non-state actors as actors of persecution or serious harm.

When a LGBT person is so mistreated by non-state actors that he or she decides to leave the country in search of safety elsewhere, one of the questions that is posed by the Immigration officer is: ‘Did you go to the local authorities to ask for protection?’ Sometimes the answer is: ‘Yes, but they refused to help me’ and sometimes the answer is: ‘No, because I am afraid of the police’.

A gay man from Algeria fled to the Netherlands after he was gang-raped by fifteen ‘civilians’. His asylum claim was refused, because he should have asked the Algerian police to protect him. He did not do so, because a few years earlier he was raped by a police officer and in Algeria homosexuality is punishable with three years imprisonment. According to Dutch Immigration officers the first rapist was just one policeman and he could have asked help from other or higher authorities. It’s true that homosexual acts are criminal in Algeria, they argued, but rape is too. Finally they granted him asylum, but this took almost four years of procedures.

In general, people fleeing because of persecution by non-state actors are supposed to seek protection in their home state first. Though in my opinion it is not reasonable to expect from an LGBT person to turn to the police for protection in a country where homosexuality is a crime or where the general atmosphere is homophobic.

Article 6 of the Refugee Directive states that actors of persecution include non-state actors, ‘if it can be demonstrated that the State is unable or unwilling to provide protection’. But who has to demonstrate this, on whose shoulders is the burden of proof? The general answer is: ‘the asylum seeker’, but I think the burden of proof should be on the receiving state. The state should first demonstrate that the authorities of the country of origin are in general able and willing to offer protection to LGBT people, before expecting the asylum seeker to turn to the police.

There is support for this idea in the Refugee Directive. Article 7 of the Directive says that protection is generally provided, when the state takes reasonable steps to prevent the persecution. The state should operate ‘an effective legal system for the detection, prosecution and punishment of acts constituting persecution’ and the applicant should have access to such protection. In homophobic societies this kind of protection will seldom be available. So, when someone was persecuted by homophobic non-state actors in the state of origin, you could try to refer to the Directive.

The right to privacy or private life

In 1981 the European Court of Human Rights (ECHR) decided that the provision that criminalized homosexuality in Northern Ireland was a violation of the right to privacy in Article 8 of the European Convention on Human Rights (ECHR).[3] This decision was followed by similar judgements on the criminalization of homosexuality in Ireland and Cyprus.[4]

The only time a gay asylum case was decided upon by the European Court of Human Rights was in 2004 when the Court judged the case of a gay man from Iran who sought asylum in the UK. The Court rejected his claim at the right to private life in Article 8 of the Convention. Although homosexuality is a crime in Iran, this does not mean that deportation of a person to this country is a violation of Article 3 or 8 of the ECHR. Iran is outside the European Union and this country is not a party to the European Convention.[5]

Decision-makers sometimes argue that gay people will not be persecuted as long as they act discreetly or are not openly gay. And of course, if all LGBT people would stay in the closet completely, there would probably be no harassing, rape, ill-treatment, murder, torture or discrimination of LGBTs. The Netherlands recently adopted the policy not to use this argument anymore, but for instance the UK still does: The British Home Secretary said that ‘Gay and lesbian asylum-seekers can be safely deported to Iran as long as they live their lives "discreetly".’[6]

The advice to act discreetly upon return is a violation of  the right to privacy and ‘the right to privacy includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity’, as the Yogyakarta principles state.[7] The Michigan Guidelines say: An individual shall not be expected to deny his or her protected identity or beliefs in order to avoid coming to the attention of the state or non-governmental agent of persecution.[8]

In the case Bensaid v. UK (2001) the European Court of Human Rights stated that ‘private life’ is a broad term and that gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 ECHR. It might be a good idea for people in the UK to start a procedure at the ECHR stating that the claim to act discrete is a violation of the right to privacy protected by article 8 ECHR. And the Dutch Government should convince other European members to follow their policy not to expect LGBT people to live discreetly.

Two recent cases

A case that attracted a lot of attention in the EU was the case of Mehdi Kazemi from Iran. He  first applied for asylum in the UK, after he had heard that his boyfriend was executed in Iran and he feared the same fate. Nevertheless, his case was refused. Then he fled to the Netherlands. The Netherlands has the policy to grant asylum to all LGBT people from Iran, but Mr. Kazemi’s asylum claim was refused again because of the Dublin Convention, which prevents application for asylum in more than one EU country. He was sent back to the UK. After a lot of protests and demonstrations from several LGBT-organisations in the UK and the Netherlands and a resolution from the European Parliament, Kazemi was finally granted asylum in the UK. To avoid this kind of Dublin cases in the future the Dutch Government should export the policy to grant asylum to LGBT people from Iran.

There was also the case of the Iranian lesbian Pegah Emambakhsh, whose partner was sentenced to death by stoning. The last report on her situation dates from last March, when she was still in the UK, fearing deportation to Iran. I wonder if anybody knows what has happened to her? 

Last year the case of mr. Salah Sheekh from Somalia against the Netherlands was decided upon by the European Court of Human Rights.[9] He won the case because according to the Court his expulsion to Somalia would be in violation of article 3 of the Convention. Mr Sheekh was a member of the Somali clan of the Ashraf, and as a result of this the Netherlands had to change the asylum-policy. We now have two new categories: ‘vulnerable minority groups’ and ‘groups at risk’. Vulnerable minority groups are for instance single women in Afghanistan and Christians in Iraq. Their burden of proof is much lower. A few days ago, in a meeting with Dutch government officials we heard that they plan to recognize homosexuals from Iraq and Afghanistan as ‘groups at risk’. If these asylum seekers  pass an individual examination with limited evidence, they will get a refugee-status. So that is good news, although it has a somewhat bitter taste, because very recently the categorical protection for asylum seekers from Central Iraq was ended.

This summer the European Commission presented a policy plan on asylum, as part of the creation of a Common European Asylum System (CEAS). One of the overarching objectives of this CEAS is to incorporate gender considerations and take into account the special needs of vulnerable groups. I don’t know if ILGA is already creating LGBT input in this harmonisation process, but I think this would be a good idea.

I would like to end with a subject that is, as far as I know, in the Netherlands hardly an issue: Immigration sometimes does not believe someone to be gay. Here in Vienna for instance I heard that lesbian women from Zimbabwe are denied asylum in the UK, because they have children and for that reason are not believed to be gay. And I also heard the story of a man from Azerbaijan, who sought asylum in the Czech republic. To test his gayness the Czech authorities showed him porn-videos, while putting a device around his penis, to measure his reaction to the porn. This is a gross violation of human rights and if this is true, human rights organisations should send a fierce protest to the Czech authorities.

Anyhow, I would be very interested to hear how the situation of LGBT asylum seekers is in other EU-countries. So I hope we can exchange ideas and experiences in this workshop or during this conference.

[1] Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or

stateless persons as refugees or as persons who otherwise need international protection and the content of

the protection granted, (2004) OJ L304/12.

[2] ‘Op de vlucht voor homohaat, over discriminatie en discretie’, Nieuwsbrief Asiel- en Vluchtelingenrecht 2006, nr. 3, p. 124-146.

[3] ECHR, Dudgeon v. United Kingdom, 22 October 1981, 7525/76.

[4] ECHR, Norris v. Ireland, 26 October 1988, 10581/83; ECHR, Modinos v. Cyprus, 22 April 1993, 15070/89.

[5] ECHR, F. v. United Kingdom, 22 June 2004, 17341/03.

[6] The Independent, 23 June 2008.

[7] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, March 2007.

[8] The Michigan Guidelines on Nexus to a Convention Ground, University of Michigan Law School, Ann Arbor USA, March 2001.

[9] Salah Sheekh v. The Netherlands, 11 January 2007, 1948/04.