'Phenomenal' decision on LGBT asylum 'discretion test' by UK Supremes

By Paul Canning

The UK Supreme Court has struck down the so-called 'discretion test' aka 'go home and be discreet' in a unanimous verdict described as "phenomenal" by S.Chelvan who acted at the appeal for one the two gay applicants and had been instructed by those acting for him at the Supreme Court to speak with the media about the case.

He was speaking at the first LGBTI Asylum Conference held in London 7 July and compared its importance to the striking down of sodomy laws in the US Supreme Court saying "today is a great day".

S. Chelvan told the conference that the judgment has historic language, including the first use of 'bisexual' in a senior asylum case, and demonstrated a major advance in judicial understanding of LGBT rights in general as well as LGBT refugee rights. He suggested it had implications legally across the world, including in the EU where several countries use the 'discretion test' and even in the Commonwealth.

Home Secretary Theresa May said:

‘I welcome the ruling of the Supreme Court, which vindicates the position of the coalition government. We have already promised to stop the removal 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.

'I do not believe it is acceptable to send people home and expect them to hide their sexuality to avoid persecution. From today, asylum decisions will be considered under the new rules and the judgment gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case.

'We will of course take any decisions on a case by case basis looking at the situation in the country of origin and the merits of individual cases in line with our commitment.'

• More political reaction to Supreme Court decision

The homos are coming

Right-wing newspapers reacted furiously with The Daily Express headlining a quote from MigrationWatchUK chairman Sir Andrew Green that: “This could lead to a potentially massive expansion of asylum claims as it could apply to literally millions around the world." The Sun's headline was 'Gay illegals can stay, court rules', the Daily Star 'GAY ASYLUM SEEKERS 'HAVE A RIGHT TO KYLIE' and the Daily Telegraph ran a comment piece headlined 'Can Iranian mullet-wearers be granted asylum?'. The Daily Star editorialises that "opening the floodgates to gay asylum seekers is absolute madness."

The Daily Mail ran its usual two headlines, one of which read 'Supreme Court Judge says homosexual asylum seekers should be allowed to stay because 'gays must be free to enjoy Kylie concerts and cocktails'' Picking up on Andrew Green's meme and the clearly flagged as tongue-in-cheek comments by Judge Rodger, its piece by an anonymous 'online reporter' said "Lord Rodger's extraordinary comments came in a judgment which could allow thousands of homosexuals to claim asylum in Britain."

In a statement London law firm Baker and McKenzie who intervened on behalf of the London office of the United Nations High Commissioner for Refugees (UNHCR) pointed out that the Home Secretary's position had been prepared for and approved by Jacqui Smith on behalf of the previous Labour Government. They said:

"The Coalition Government has since announced that it will end returns of asylum-seekers to countries where they would face death, torture or imprisonment as a result of their sexual orientation. This judgment is significant in putting that commitment on a legal footing. The same commitment has also been extended by the Coalition to asylum-seekers who face persecution on the grounds of gender identity, which has not yet been considered by the Supreme Court, but is likely to be governed by the same principles."

Activist group Movement for Justice had protested outside the Court prior to the judgment's announcement, Wednesday. Welcoming the decision, Antonia Bright from the group said:

“This victory advances the whole struggle to enforce the right to equality that is the basis of the Equality Act that Parliament passed in April. It gives us a new weapon in the fight to ensure that the words and spirit of the Act shall be the equal, common right of everyone who lives, works or studies in Britain, whatever the colour of their skin or the colour of their passport, and whatever their race, religion and sexual orientation.

“We will look for cases and conduct campaigns that set examples of using the Supreme Court’s decision and the Equality Act to the full and mobilising to implement them, speaking the plain truth about racism and homophobia.”

Alex Owolade from the group said:

“The immigration authorities must be forced to drop all the cases where they are trying to compel LGBT refugees to return and conceal their identity, and the authorities must end detention. We demand that every single asylum seeker who has been deported in contravention of the Refugee Convention must able to come back to Britain immediately.”

UK Supreme Court LGBT asylum 'discretion test' summary

UK Supreme Court LGBT asylum 'discretion test' Judgment

 

Correction: This post was edited 9 July to clarify the status of S.Chelvan. He was not "one of the barristers involved in presenting the case for the two gay applicants".

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