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Monday, 24 May 2010

Hope on UK LGBT asylum? And a new demand

Photo of Theresa May MP, opening a church fete...Image via Wikipedia
By Paul Canning

In his excellent explanation last Friday of the problems with the Coalition government's one line commitment on LGBT asylum, announced on Thursday, Bernard Keenan pointed out there is one action they can take to show they mean business: withdraw from the Supreme Court test case involving an Iranian and Cameroonian on 'go home and be discrete'.

As Bruce Leimsidor in his piece for us on the reporting of Stonewall's report, being launched today, says:
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.
This incredulity is shown by the comments both Keenan's piece and that of an anonymous gay Iranian also in the Guardian have attracted. With the latter, the fact is that gays do (despite what Ahmajinedad says) exist in Iran and there are YouTube videos showing them having parties. So if you don't 'provoke' the Iranian regime with your 'flaunted' homosexuality why can't you go back?

The research and numbers on persecution is there but it's not great precisely because it's not a priority for most human rights actors and the state makes any sort of advocacy and information gathering hard if not impossible.

Last year the journalist Doug Ireland reported on twelve death sentences in Iran and managed to get some confirmation. This led to a statement from Human Rights Watch but absolutely no subsequent press interest, even from the LGBT media. Amnesty International ignored it.

The Coalition statement says "at proven risk of imprisonment, torture or execution." Marshaling 'proof' which stands up in a system the Stonewall report describes as riddled with "institutionalised homophobia" ain't easy.

New Home Secretary Theresa May is tasked with implementing the Coalition agreement and this is happening against a background of campaigning against her appointment because of her past votes against LGBT equalities legislation, in particular a 40k+ Facebook petition.

Responding to questioning on BBC Question Time, she said that she would now vote differently and had "changed her mind" on issues such as lesbian and gay adoption.

However she went further and said that she wanted to be judged on what the government did rather than said and pointed to the Conservatives Equalities manifesto, published on the Monday before the election.

She pointed out that this addressed other issues than those she had voted against and first cited homophobic bullying in schools and next cited the LGBT asylum commitments.
"What will show the difference the government will make is what we will do in government on this particular agenda of equalities," she said.

"[The manifesto] did commit that one of the things we would be doing is looking at ensuring that people who are claiming asylum from particular countries because they are at proven risk in relation to their sexuality, that we should be able to take that into account as an issue when looking at those claims."
As Refugee Action, the Refugee Council and LGBT Asylum News explained on Friday, May's words and the Coalition's inclusion of this issue is extremely welcome however the one sentence wording does not actually change the position of LGBT asylum seekers in practice.

The Conservative manifesto expands on the text in the Coalition agreement to address the 'discretion test'. Because there is no clamour around asylum as there is around her past votes I'm encouraged that May chose to point to the asylum commitment as an example of where they will seek change - the manifesto says "change the rules" - and where they should be judged by their actions.

It remains to be seen how 'rules' will be changed - we have identified eight headline issues with current Home Office policy and practice - but, as we have said earlier, it would be churlish not to be encouraged by their choice of language around the emotive issue of asylum. Simply put, they don't need to do this, there are few if any votes in it and they could, like the previous government, simply mention other LGBT equality issues and leave this one out.

They have already been 'stung' on LGBT asylum by the right wing mass tabloid Daily Mail so to have then left asylum in their manifesto as a commitment - problems with the wording aside - should be seen as a positive move.

But we can ask them to "show the difference the government will make" immediately in one straight-forward move: withdraw from the Supreme Court test case. I'd like to see the 40+ Facebook petitioners move at least some of their attention to that sort of demand.

Edited to add: Liz Williams, a refugee lawyer who acted for UNHCR in the Supreme Court case, has fed back that:
"I'd rather the Government didn't fold at this stage, with the hearing complete and only the judgment awaited. All that would achieve would be to leave the unsatisfactory Court of Appeal judgment in place as binding law. That was a favourite tactic of successive Labour Home Secretaries when they saw cases going against them, which I'd rather not see repeated."
We asked:
"Could the new government otherwise indicate its distance from the previous government's opinion without ensuring a negative legal outcome?"
Liz replied that:
"in theory they could perhaps write to the Supreme Court withdrawing their submissions and inviting the judges to adopt ours and/or the appellants' in their judgments, but that would be a very unusual step. Not sure how the court would respond. The key thing is that they need to issue a new Asylum Policy Instruction to deal with the problem (APIs are what UKBA staff follow when approving claims) - obviously the sooner, the better, but I imagine it will take a little while to get the necessary detail drafted and approved by Home Office lawyers."

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3 comments:

  1. As a refugee lawyer who acted for UNHCR in this case, I'd rather the Government didn't fold at this stage, with the hearing complete and only the judgment awaited. All that would achieve would be to leave the unsatisfactory Court of Appeal judgment in place as binding law. That was a favourite tactic of successive Labour Home Secretaries when they saw cases going against them, which I'd rather not see repeated.

    ReplyDelete
  2. Liz

    point taken. Could the new government otherwise indicate its distance from the previous government's opinion without ensuring a positive legal outcome?

    ReplyDelete
  3. Paul, in theory they could perhaps write to the Supreme Court withdrawing their submissions and inviting the judges to adopt ours and/or the appellants' in their judgments, but that would be a very unusual step. Not sure how the court would respond. The key thing is that they need to issue a new Asylum Policy Instruction to deal with the problem (APIs are what UKBA staff follow when approving claims) - obviously the sooner, the better, but I imagine it will take a little while to get the necessary detail drafted and approved by Home Office lawyers.

    ReplyDelete

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