Wednesday, 16 February 2011

Ugandan lesbian asylum case demonstrates a broken coalition government promise

By Paul Canning

Following the world-wide spotlight on Britain's treatment of lesbians and gays fleeing persecution in the case of 'BN', another lesbian asylum case from Uganda has come to light which underlines that the coalition govenment's promise to stop returning lesbian and gay asylum seekers to danger has not been realised.

This new case was decided just days before Scott Mills' BBC Three documentary on life for gay Ugandans. His show (reaction to which caused Mills' name to 'trend' on Twitter) graphically demonstrated how unsafe life is if your neighbours know you are gay and how deeply entrenched violent hatred of lesbians and gays is in Uganda. He met one lesbian forced to live in hiding and who had been raped in order to 'cure' her. He spoke with a number of prominent Ugandan agents of persecution including Giles Muhame, Editor of The Rolling Stone newspaper.

Kasha Jacqueline, Executive Director of Freedom and Roam Uganda, was one of those who won the injunction against The Rolling Stone (no relation to US magazine) that prohibited them from publishing any more photos of people (not all of whom actually were gay); stopping any newspaper from 'outing' them, a favourite method of persecution in Uganda. She described in Ugandan newspaper Kampala Dispatch yesterday her experience of being targeted:

There it was: my picture, my name, and the headline: “100 PICTURES OF UGANDA’S TOP HOMOS.” Beneath the headline were the words, “Hang Them!”
I panicked. But the full article was worse. When I read it, my heart almost stopped. The article claimed that I threw parties and orgies for homosexuals at my house and that I wanted to brainwash children into being homosexual. They even quoted me as saying, “We are targeting those as young as 12 years old, as they are easy to persuade to join gay groups.”

I have never said such a thing, I have never even thought such a thing – and if someone was throwing homosexual orgies at my house, they never invited me.

People who had their photo published had been attacked, had rocks thrown at them, and some had to leave their homes. They were too afraid to even file police reports. I decided I had to stand up for them. I was a known human rights defender, I could risk my name. I contacted many people around the world who supported me and pledged to help me throughout the whole process of suing the Rolling Stone.

During the case, I spent all the little money I had to have safe transport, and stopped moving to my local open places because of fear of what could happen to me in case someone identified me. Because of my human rights work defending sexual minorities, it’s always my face that is flashed on TV every time someone talks about homosexuality.
None of this recent history is reflected in the guidance for Ugandan asylum cases produced by the Home Office - The shadow home secretary, Yvette Cooper (commenting on the 'BN' Ugandan lesbian case) noted that: "The UK Border Agency's operational guidance for Uganda is now nearly two years old and does not mention LGBT rights. It needs to be updated as fast as possible to reflect the current situation on the ground." - and this history was blatantly disregarded by the Home Office in this latest case.

But it gets worse. In this latest case, Home Office lawyers argued that a previous ruling (JM 2008) which said that LGBT could be safely returned to Uganda if they relocated and lived 'discreetly' still applied. In making this argument they dismissed last July's ruling of the Supreme Court which overthrew this 'discretion' and relocation argument - because it wasn't based on a Ugandan case. They ignored the legal rules given with the judgment by the Supreme Court and subsequently codified by the Home Office in a new Asylum Policy Instruction (API) published in January on sexuality-based asylum claims.

They said that in Uganda "while there may be disapproval of homosexuality, instances of violence and discrimination, there is no persecution."

They accepted that (like Kasha Jacqueline) this woman had been 'outed' in a Ugandan newspaper in 2009 - but dismissed this by using the argument that only 150 had viewed the article online.

They wrote this last month, after over two years of documented persecution following newspaper outings of lesbians and gays. Court documents show that they were, in fact, aware of the recent activities of Ugandan newspapers because they wrote referring to The Rolling Stone trial that "identification of homosexuals was now banned by the courts." They also wrote that Ugandan police have "no homophobic views." And they dismissed the existence of the 'kill the gays' bill as it had not been passed.

And they wrote this, in contrast to 'BN' and many other cases, whilst accepting that the woman was lesbian.

The judge, citing the Supreme Court ruling and accepting the detailed evidence of persecution submitted by her lawyer, threw out the case made in the name of the Home Secretary, Theresa May, and granted this woman asylum February 9. Dismissing the Home Office's resorting to JM 2008 precedent, he wrote that:
"The 'climate has changed', as has the government stance: homosexuals are suffering beyond intimidation and harassment to the point of persecution and the new ['kill the gays'] law will worsen their position."
Her lawyer, Mohammed Ayub of Chambers Solicitors in Bradford, says that if an asylum claimant doesn't have a competent lawyer a judge will often adopt the view of the Home Office. As we've previously reported, it's been shown the judges can ignore or even be ignorant of legal precedent.

Mohammed Ayub
This woman was fortunate in having Ayub arguing her case but others have not been as lucky as this is not the only case where the Home Office is making this same argument. The rejection letter received by gay Ugandan Garrick Nyeswa from them included the statement that “there is no evidence to confirm that homosexuals are persecuted in Uganda.” There are many others. One lawyer currently has three Ugandan gay asylum cases, one of which has just been 'removed', another of which has been put straight into 'fast track' and detention.

Since the election of this government with their promise to "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" the Home Office has instituted training courses for UK Border Agents and published the new API. They have also held discussions regarding the problems with guidance on countries, like the dated Ugandan guidance which doesn't mention LGBT, the sort of example of which has been reported on for many years and which they've promised to resolve many times but never have.

But none of this work addresses the issues thrown up by this Ugandan case. Nothing that I'm aware of is happening to stop other Home Office lawyers resorting to the sort of tactics they got up to in this case.

Stonewalls's report 'No going back' on LGBT asylum contains 21 recommendations. Those recommendations demonstrate in detail how the system is stacked against LGBT asylum seekers.

The government has already rejected one of them, that because sexuality-based claims are always complex they, as a group, should be excluded from 'fast track' and given more time to prepare their case. 'Fast track' leads to LGBT who may have been tortured and abused being automatically detained, often with fellow countrymen or women who continue that abuse. 'Fast track' is all about removing people as quickly as possible because they're supposed to have no real claim - but we already know that the vast majority of sexuality-based claims are being rejected when first examined, meaning that probably most of them end up in 'fast track'.

Because of a shortage of lawyers like Mohammed Ayub, because charities like UK Lesbian and Gay Immigration Group (UKLGIG) are stretched and restricted in the help they can provide, and because, too often, there's the pressure of time as the case has been 'fast tracked, the sort of complex work which needs to be done to present - and win - a case like he did very often simply does not happen.

The plain fact is that very little has been done since the election by the government on their promise, meaning that, yes, they are still 'deporting asylum seekers who have had to leave particular countries because their sexual orientation or gender identification to proven risk of imprisonment, torture or execution.'

Until they show at least some effort on all 21 of those recommendations they cannot claim to have fulfilled it.

UKLGIG in their landmark report last year which examined the UK's treatment of lesbians and gays fleeing persecution and seeking sanctuary described the Home Office as "cruel and discriminatory."

This case - and numerous others - demonstrates that despite the government's promises it still is.
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