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Monday, 24 May 2010

98% sent back? The Independent's article makes a bad situation worse

By Bruce Leimsidor

It’s painful when one has to criticize a friend, especially when he is trying to be helpful, but an apparently gay asylum friendly article in the May 23 issue of the “Independent,” “Virtually all gay asylum-seekers sent back to persecution” calls for some critical comment. The situation for gay asylum seekers in the UK is, in fact, very grave. It is not, however, made any better through inexact and alarmist reporting.

With in the past two months, two excellent reports, one by the UK Lesbian and Gay Immigration Group (UKLGIG) and another by the UK based gay rights organization, Stonewall (released today), have closely documented and chronicled the unfair and prejudicial treatment LGBT asylum seekers have received at the hands of the UK immigration authorities (UKBA). The “Independent” article, however, distorts the situation by erroneously citing the Stonewall report, stating that “98 per cent of gay asylum-seekers fleeing persecution for their sexuality are returned home to a likely fate of death or persecution.”

The 98 % statistic comes not from the Stonewall report, which gives no specific figures on asylum refusals; it probably comes, rather, from the UKLGIG report, but let’s not nit pick. What is important, however, is that this figure of 98% is not for deportations, as the “Independent” article wrongly claims. The UKLGIG report is very careful to state that the figure of 98% refers to first instance refusals. A good number of those refusals are reversed on appeal in the courts, and even those that are not, do not necessarily result in deportation.

The essence of the battle for LGBT asylum rights revolves around credibility. Homophobia doubtlessly exists in the public, among elected and appointed officials, and among those adjudicating asylum claims, but the major problem we face in fight for gay asylum rights is not one of prejudice, but rather one of credibility. The persecution inflicted upon gay people in many countries is, in fact, so horrendous, it so defies imagination, that our natural reaction is incredulity. Worse, it is so irrational that there is a tendency to try to explain it through suspecting some sort of provocation on the part of the gay victim. That is what is behind the “discretion” argument, which has produced so many unjust adjudications for LGBT asylum seekers.

The people making the decisions affecting the lives of gay asylum seekers, the UKBA case owners, government officials, and MPs, all have access to the figures on refusals and deportations; they know very well that the figures in the “Independent” article are distorted. One can sincerely hope that they have read the very carefully prepared reports offered by respected organizations of the LGBT community and understand that the source of these distortions is certainly not those in the gay community advocating for justice in asylum adjudications. The fear is, however, that they have read only the Independent article and wrongly suspect that gay asylum advocates are behind these distortions. This is undoubtedly the case with the public, who must sense that such extreme figures on deportations can’t possibly correspond to reality.

The disservice done to the cause of providing protection for persecuted gay asylum seekers doesn’t stop just with diminishing our credibility with those in power and public opinion. It directly and negatively affects the willingness of persecuted gay men and women to seek that protection.

The Stonewall report quite rightly stresses how difficult it is for many LGBT coming from intensely homophobic societies to admit their homosexuality and to subject themselves to the long, humiliating, and uncertain process of filing for asylum on the grounds of their sexual orientation. It has been well established that one of the cruelest effects of persecution is that since it defies rationality, the victim begins to believe that he somehow deserves the mistreatment. It is, in fact, difficult to persuade persecuted refugee gays to file asylum claims as such, and not try to avoid the issue by filing a fictitious claim on political or religious grounds. These false claims are generally fairly transparent, and then, after the examiner destroys them, and the applicant finally lets the adjudicating officer know he is gay, his credibility has already been seriously damaged.

Even worse, many persecuted LGBT who have managed to flee to Europe, because of conflictual feelings about their sexual orientation, simply remain underground and don’t apply for asylum until their situation as irregular immigrants becomes desperate. One can understand how a UKBA caseowner might look a bit askance at any asylum claim on behalf of someone who has lived illegally in the UK for years and has filed only to avoid detention and deportation.

The “Independent” article, of course, paints the situation of the LGBT asylum seeker in the UK as hopeless. Not difficult. Hopeless. In providing erroneous information that clearly would definitively discourage a gay man or woman who has already been damaged by years of persecution from seeking protection, the “Independent” article has done considerable harm to the cause of protecting our vulnerable brothers and sisters.

The article does, however, contain one bright spot, the statement by UK officials that they will not accede to requests by Uganda to extradite people guilty of the “crime” of homosexuality, since homosexuality is not illegal in the UK. It fails, however, to see a subsidiary silver lining in such absurd Ugandan requests. If Uganda files for extradition of a Ugandan asylum seeker, the request for extradition in itself should provide proof positive of the asylum seeker’s claim. Rationally, he need not go much further in convincing the UKBA of the seriousness of his situation. The homophobic Ugandan government is doing our asylum seeker a considerable favor.

Bruce Leimsidor is Professor of EU asylum law at Ca’ Foscari University, Venice, Italy

[LGBT Asylum News Note : The Stonewall press release about their report does include the following in its notes: "Between 2005 – 2009, 98 per cent of cases involving people claiming asylum in the UK on the basis of their sexual orientation were refused by the Home Office."]


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