LGBT Asylum News: In UK, new report says asylum system failing lesbians

Image by Miss Cartier via Flickr

By Paul Canning

A new report by Asylum Aid, 'Unsustainable: the quality of initial decision-making in women’s asylum claims' says that disbelief of their claims is routine and lesbian cases are being routinely dismissed.

UK Border Agency (UKBA) is "particularly ill-equipped" to handle the challenges posed by more complex asylum claims, Asylum Aid say. And women present some of the most complex claims of all.

They can present a range of issues different from those presented by men. Recent studies show the very high likelihood, for example, that many asylum-seeking women have been raped [PDF]. Women seeking asylum may be trafficking victims; they may be fleeing ‘honour’ crimes and threats from family. They may have been persecuted in response to their own political activity, or that of fathers, uncles, brothers.

Of the women whose cases were examined in 'Unsustainable', 87% were refused asylum, the majority because the UKBA didn’t accept the credibility of their claim. This proportion is far higher than the official statistics that include men and women's asylum claims.

Half of these refusals were then overturned following scrutiny from an immigration judge, and the credibility of the claim was accepted in every one of the successful appeals. The home affairs select committee of MPs last month severely criticised the quality of decision making by UKBA.

In the meantime, as the Home Office fights claims, enormous strain was placed upon the women’s health, the report finds. It points out that the cost of so many unnecessary appeals is huge.

Says Asylum Aid's Debora Singer:

But where have we heard these sorts of problems before? We already know that women are too often disbelieved by police or prosecutors or judges when reporting rape or domestic violence. 'Unsustainable' demonstrates that women face double discrimination from the UKBA’s persistant ‘culture of disbelief’: firstly as asylum seekers, and then as women.

The report finds consistent discriminatatory approaches to claims by lesbians.

One decision maker relied upon an article from the US gossip website Gawker and another in Queerty which talked about a gay nightlife in Kampala when refusing an application from a lesbian who feared death if returned to Uganda. No reference was made to the country information report provided to UKBA decision makers or evidence of persecution of LGBTI people in Uganda. This was a recent case and the claimant was told that "there was a cultural disapproval of homosexuality but this did not amount to persecution.”

When the case went before a judge he questioned why UKBA had ignored case law specifically on lesbians and gays from Uganda (SB (Uganda) v Secretary of State for the Home Department [2010] EWHC 338). He granted her refugee status.

Another case highlights the difference between UKBA decision making and the corresponding determination by a judge.

"You claim that you rented a room from a landlord. You claim that your partner Ester lived with you, but that you do not think your landlords were aware of your sexuality because you were seen as two friends sharing a flat and they would have been reluctant to rent a flat to you otherwise. In light of the fact that you claim only to have rented a single bedroom and not a whole flat, it is considered inconsistent that your landlords would have viewed you and your partner as two friends sharing a flat. Consequently it is not accepted that you had a serious girlfriend with whom you lived."

Refusal letter, UKBA, London, May 2010

"Some of the Secretary of State's [the UKBA case owner's] findings are simply unsiustainable - it is irrelevant whether the appellant’s landlady knew or believed that the appellant was a lesbian and the appellant’s credibility cannot and should not be judged on whether or not she managed to share a room with her partner while continuing to hide her sexuality. It is not inevitable that a homeowner would necessarily assume that two women sharing a room would be lesbians and the secretary of state’s conclusion that she would have known is entirely subjective’."

First Tier Tribunal, Immigration and Asylum Chamber, London, July 2010

In all cases examined as part of the research, Asylum Aid says, where the applicants claimed to be lesbians, case owners did not accept this. Though the removal by the Supreme Court of the concept of ‘discretion’ represents a major development, they say, "there is still a high threshold to meet for applicants to convince case owners of their sexual identity, even though the law only requires that to be established to the level of a 'reasonable degree of likelihood'."

"You claim to have first become aware of being attracted to women "after what the rebels did." During the counselling I felt I don’t want anything to do with men. I feel if there are only women in the world the atrocities in the world won’t happen”. It is noted that you claim to have only had one lesbian partner in the UK, and that whilst in Sierra Leone, you were unaware of your claimed sexual orientation and were married with two children. During your screening interview when failure to mention your sexuality during your screening interview has damaged your credibility regarding this part of your claim’."

Refusal letter, UKBA London, June 2010

This women's trauma of multiple rapes was corroborated by a report from the Medical Foundation for the Care for Victims of Torture. She felt ashamed to mention it at the screening (first) interview. Guidance for UKBA on gender says: "If the applicant does not immediately disclose information relating to her claim, this should not automatically count against her. There may be a number of reasons why a woman may be reluctant to disclose information, for example feelings of guilt, shame, concerns about family dishonour."

Asylum Aid says that:

The UKBA must reconcile the fact-finding nature of interviews with an appropriate and sensitive questioning technique for vulnerable applicants to disclose information in an environment of trust.

One women they interviewed with a sexuality-based asylum claim was asked by an interviewer "can you explain to me the nature of a sexual relationship between two women?" Asylum Aid point out that the guidance for UKBA decision makers on gender says "interviewers should be ready to ask searching questions while being sensitive to the difficulties an applicant may have in disclosing all relevant information."

They suggest that for interviewers having a 'statement of claim' available before the interview, according to interviewers, would help them make a well-reasoned decision. This means that the interviewer can focus on the key points which they need to clarify and the claimant does not have to face the trauma of retelling their experiences again.

Human Rights Watch said in their report 'Fast-Tracked Unfairness: Detention and Denial of Women Asylum Seekers in the UK' last year that under the UK's "detained fast track" asylum system women who fear severe human rights abuses if returned to their home countries are not getting fair consideration of their asylum claims under. Human Rights Watch (HRW) documented how women asylum seekers with complex claims are being routed into a system designed for much simpler claims.

Under the ‘Detained Fast Track’ (DFT) procedure, people seeking asylum who are in the UK are interviewed by Home Office officials following which a decision is made as to whether their case can be decided quickly and is suitable for ‘fast-tracking’. Often this decision is made on the basis of the person’s country of origin.

If a claim is to be fast-tracked, the asylum-seeker will be detained while waiting for their claim to be determined. A ‘fast-tracked’ claim will usually take about two weeks to be finally determined.

Under the ‘Detained Non Suspensive Appeal’ (DNSA) procedure a person will be detained for between 10 and 14 days while their asylum claim is determined, and at the end of this process the person has no right of appeal in the UK to an independent court or tribunal. People from certain listed countries (which include over 20 countries such as Ghana, Nigeria, Liberia, Sierra Leone etc) will be automatically routed into this procedure, unless it can be shown (on arrival) that their claim is not clearly unfounded.

HRW notes that lesbians from Jamaica have been placed in 'fast track' as Jamaica is on that list. This is because the UKBA’s Operational Guidance Note (OGN) on Jamaica is, they say, "seriously limited". The OGN says: “there is no evidence that lesbians generally face serious ill-treatment in Jamaica and in the absence of evidence to the contrary [their claim] may be certified as clearly unfounded.”

However, HRW has found [PDF] that women who are or are perceived to be lesbians are at a great risk of rape in Jamaica, as they may be targeted for sexual violence based on both their gender and sexual orientation. They have reported a lack of protection from Jamaican police when such violence is perpetrated by non-state actors.

The women are held in detention largely for the UK's administrative convenience, says HRW, but the claims often involve such sensitive and difficult issues as sexual violence, female genital mutilation, trafficking, and domestic abuse. There is little time for lawyers or other representatives to build the trust with their clients needed for them to explain their claims or to obtain medical or other evidence needed to verify them.

"The 'detained fast track' system doesn't meet even the basic standards of fairness," said Gauri van Gulik, women's rights researcher at HRW. "It is simply not equipped to handle rape, slavery, the threat of 'honor killings,' or other complex claims, and yet such cases are handed to it regularly."

The report describes a screening procedure with guidelines too vague for the border agents who make the decisions about how a woman's case will be handled to assess properly the complexity of many women's cases and whether they can be handled adequately in the fast track system. Despite the UK Border Agency's own gender guidelines, designed to explain particular considerations around gender-related claims, some Border Agency staff lack a basic understanding of the special issues often involved in women's asylum claims, HRW said.

Omar B. is a transgender person (female to male, not biologically male) from Pakistan, who was placed into the DFT and eventually spent four-and-a-half months in detention. At the screening interview at the asylum screening center in Croydon, he identified himself as a lesbian because his appointed solicitor told him that was what “was wrong with him”. A medical examination concluded that he was female. Omar told Human Rights Watch: “I had no idea what was happening in my body, all I knew was that I was in love with a girl and that I felt like a boy and man my whole life”.

Disregarding his confused sexual identity, the threat of the father of his girlfriend to kill him, as well as the fact that he had already been severely assaulted by the father and abandoned by his own family, his case was deemed straightforward and suitable for fast track. That this was an inappropriate referral as well as, subsequently, an incorrect refusal of his asylum claim was confirmed by the High Court in August 2009 in a judicial review of the case. Judge Mark Ockelton indicated that he had "real difficulty" in understanding why the Home Office immigration authorities were still defending their decisions to refer Omar’s case to fast track and to refuse the asylum claim, despite "strong evidence" in the asylum seeker’s favour. A fresh claim was made and he was eventually granted asylum in August 2009.

Omar B. went through an assessment with a consultant psychiatrist at the Royal Hospital for Neurodisability in Putney and other experts. The case owner who ruled on whether a fresh claim, this time on the basis of him being transgender instead of lesbian, could be made relied on www.freedictionary.org to determine whether in fact he is transsexual or transgender.

In the refusal letter in the same case, The Boston Globe was cited as one of the sources to prove that lesbians are not persecuted in Pakistan, stating, "The Boston Globe reported that homosexuality is ‘tacitly accepted ... as long as it doesn't threaten traditional marriage.’“ This is a very selective quote from the actual article, in which this sentence only refers to one region in Pakistan (where Omar is not from), the Northwest Frontier Province, and the article commences, stating “In the Islamic Republic of Pakistan, homosexuality is not only illegal, it is a crime punishable by whipping, imprisonment, or even death.”

Once routed into the fast track, women with complex cases have far too little time to prepare their case, obtain medical or other expert opinions, and establish the credibility of their claims. This is especially true in cases involving rape or abuse, where women may only be able to come forward with relevant information late in the process, or not at all, because they may be traumatized by their experience, frightened by the procedure, or simply embarrassed to tell an official.

Placing women in detention exacerbates the problems. Some of the women have no access to female interpreters, case workers, or medical staff.

"The UN, numerous groups that work with immigrants, parliament, and even its own quality assessment team have been telling the Home Office for years that 'fast track' is failing women," van Gulik said. "The UK Border Agency's failure to fix this suggests that deporting women is a higher priority for the agency than protecting them."

In 2008, about one in four women assigned initially to the Detained Fast Track procedure were eventually moved into the standard asylum procedure. The government asserts that this shows that the system is working. But lawyers and nongovernmental organizations told HRW that it was their intervention that led most of these cases to be reassigned rather than a reassessment by Border Agency staff. In the regular asylum system, the asylum seekers are not held in detention while their claims are examined, and they have weeks, not days, to prove their claims.

The Detained Fast Track system was created in 2003 and opened up to women in 2005. Currently, it is an important part of an effort by the UK government to "resolve" 90 percent of all asylum claims within six months.

Human Rights Watch said:

While the UK is entitled to control its borders and to remove people with unfounded claims, it is also obliged to ensure that people who actually need protection from persecution on Refugee Convention grounds should be granted refugee status. To ensure this, individuals who may need such protection have the right to a full and fair refugee status examination procedure.

The Home Office should put more rigorous procedures into effect immediately to ensure that people with complex claims are not routed into the fast track procedure, including:

In the suitability guidance note for routing into this system, add complex gender-related persecution claims, such as sexual violence and domestic violence, to the list of "claims unlikely to be accepted into fast track."

Clarify the criteria for routing a person through fast track, including the factors that would enable a "quick" decision on a claim.

Stonewall and UK Lesbian and Gay Immigration Group have recommended that as they have found that sexuality-based asylum claims are always complex they should also be removed as a group from 'fast track'. Stonewall has pointed out that "often they [claimants] are incarcerated in hostile and homophobic environments, significantly increasing the barriers they already face in talking about their experiences." The government has rejected this recommendation.

Immigration Minister, Damien Green MP, was asked last week in the House of Commons whether he had given consideration "to the participation of (a) women and (b) lesbian, gay, bisexual and transgender persons in the detained fast-track procedure." He said: