By Bernard Keenan
In the new government's newly published policy on equalities, there is a statement that says: "We will stop the deportation of asylum seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution."
This commitment should be welcomed, but with caution. As a statement taken out of context, it is legally meaningless until it is translated into policy changes by the Home Office. On the face of it, it doesn't really change anything. Some people are already accepted by the courts and the Home Office to be refugees because of their sexuality. However, the vast majority are refused, even when they are from places that the Foreign Office regularly condemns for the abhorrent treatment of LGBT people, such as Uganda or Malawi.
There are two main reasons for this contradiction. First, the "culture of disbelief" within the UK border agency, which will often flatly accuse asylum seekers of lying about their sexuality, even when British partners give evidence of a gay or lesbian relationship. Second, the deployment of a deeply cynical logical fallacy by the court of appeal in the case of J (Iran) , which forms a convenient basis for refusing an asylum claim in most LGBT cases.
This is the particular test which has left the Iranian film-maker Kiana Firouz in danger of removal to Iran. The reasoning that the court gave, and which was applied in Firouz's case, is that a gay person will, of their own volition and as a matter of fact, choose to live in secrecy by exercising "discretion" (a very British word for it) in their daily lives, thus concealing and suppressing their identity as a gay person. In so doing, they evade persecution and do not need protection as refugees.
According to the court of appeal, the question then becomes whether or not they can "reasonably tolerate" this suppression of their identity. This is an absurd question and one which cannot realistically be answered, except by engaging in speculation. It has led to immigration courts engaging in gross culturally relative questions as to who can tolerate what, and why, and in the end it is entirely down to the prejudices of the particular judge. The Home Office, naturally, says it is always perfectly reasonable, because modifying your behaviour to hide who you are doesn't amount to persecution. By this logic, if Anne Frank chose never to leave the safety of the attic, she would never have been persecuted, and so would not have been a refugee had she reached Britain.
This is the nature of the issues that the new government must really address if their public commitment to protecting gay asylum seekers is to have any legal significance. It is a question of equality. No other category of asylum seeker is told to go home and hide. If, on the other hand, the current policy is maintained, we will continue to be, in the words of Australian judge Micheal Kirby, the "enforcers for those who diminish the identified freedoms instead of the protectors of those who say their freedoms are at risk".
Coincidentally, the timing is perfect. Last week the supreme court heard submissions in the case of HJ (Iran) and HT (Cameroon) v secretarty of state for the Home Department. Both appellants are gay men challenging the reasoning of the court of appeal in the case of J (Iran). In a few weeks the court's decision will settle the issue in law. The appellants, supported by UNHCR and the Equality and Human Rights Commission, argue that no one should be expected to conceal their identity to evade persecution. The only question that matters in LGBT asylum cases is the objective risk of harm that would be done to a person were their sexuality to be discovered.
The secretary of state maintains that, despite HT having been seen kissing another man in his garden and subsequently beaten up by a mob, which included members of the police, he is not at risk on return to Cameroon because he will conceal his sexuality and not get caught again. HJ, who comes from Iran where the death penalty for gay men is maintained, will also be fine on return, for the same reason. Each can ensure his safety by "modification of behaviour", and this is something he can "reasonably be expected to tolerate".
All of this goes to the question of "proven risk" of ill treatment that the coalition mention. The new government is a party to the case before the supreme court. This is the perfect chance for the coalition to immediately signal it is serious about gay rights. Will the home secretary, Theresa May, now write to the supreme court to withdraw the submissions made on behalf of her predecessor? I won't be holding my breath.