By Pamela Duncan and Jamie Smyth
A Nigerian national deported in 2009 after he unsuccessfully applied for asylum on the basis he faced persecution in his home country because he is homosexual will this week seek a judicial review in the High Court.
The case is being brought on the basis that Minister for Justice and Law Reform Dermot Ahern failed to take into account the United Nations High Commissioner for Refugees (UNHCR) guidelines on sexual orientation and gender identity in his refusal to revoke a deportation order in relation to Mobolaji Adams, who was refused asylum on the basis that if he practised “discretion” in Nigeria he would not be persecuted.
The case will be heard a week after five supreme court judges in the UK ruled gay and lesbian asylum seekers should not be expected to “exercise discretion” to avoid persecution.
Mr Adams arrived in Ireland in September 2006 as an unaccompanied minor and applied for asylum, claiming he was assaulted and threatened after his homosexuality was discovered. In December 2006, the Refugee Applications Commissioner refused refugee status on the basis of adverse credibility findings, which are disputed, and on the basis that homosexuals who hide their homosexuality in Nigeria could relocate within the country without facing persecution.
Subsequent appeals to the Refugee Appeals Tribunal were turned down. In 2009, an application for subsidiary protection was rejected by the Minister. A subsequent application for leave to remain was also refused. A letter from the Minister dated February 6th, 2009, stated “if Nigerian homosexuals practise discretion, they are not likely to run foul of the law”. Mr Adams was deported from the State in October 2009.
A judicial review is now being applied for on the basis that analysis of the applicant’s revocation application took place without regard to the provisions contained in the UN refugee agency’s guidelines. These hold being compelled to forsake or conceal sexual orientation and gender identity, where instigated or condoned by the state, may amount to persecution.
According to an Amnesty International report, Nigeria’s criminal code penalises consensual same-sex sexual conduct between adults with 14 years’ imprisonment. Consensual homosexual sex is still illegal in about 80 UN member countries while six others still impose the death penalty.
Áine Ní Chonaill of Immigration Control Platform Ireland said the “insanity” of the UK was adequately summed up by Migration Watch UK which stated that the UK ruling could lead to a potentially massive expansion of asylum claims. “If the choice is between having homosexuals from these countries having to act discretely and us being swamped with alleged homosexual claims from 80 countries around the world then they will just have to act discreetly,” she said.