Friday, 11 March 2011

UK Government denies appeal rights to refused gay asylum seekers from Jamaica, Nigeria and Ghana

Earl Attlee, a government whip in the House of Lords
By Paul Canning

The UK will continue to regard Jamaica, Nigeria and Ghana as 'safe countries' to which to return sexual orientation applicants if they're refused, which will highly restrict their ability to appeal. The government has suggested their negative decisions on asylum claims should be "appealed only from outside the UK".

They have also specifically refused a request - because of the documented decisions of Border Agency staff based on their views "of a stereotypical gay person" - to consider adding 'sexual orientation' to the list of specific descriptions of "named categories of people" who have the right of appeal.

This follows an earlier refusal by Immigration Minister Damien Green to consider adding 'sexual orientation' to a list of types of asylum claims which should not be entered into the so-called 'fast track' process, which also erodes legal appeal rights.

Research by Stonewall and by UKLGIG have found extremely high rates of refusal overall of claims made on grounds of sexual orientation and a particular culture of disbelief of claims from Jamaica.

Ghana has "lots and lots of people in our prisons" jailed because of anti-gay laws, according to LGBT leader Prince MacDonald.

12 states in Nigeria have the death penalty for gay sex (although it hasn't been enacted). Public hostility to homosexual relations is widespread there. Very few gays are out, and violence against LGBT people is frequent, including from police.

Jamaica has been described by human-rights groups as the most homophobic place on earth due to both hate speech and bias motivated crimes of violence.

The government's answer came 7 March from Earl Attlee, a government whip in the House of Lords, to questions from Liberal Democrat peer and long time advocate for LGBT asylum seekers Lord Avebury.

Avebury noted their power in Section 94(5) of the Nationality, Immigration and Asylum Act 2002 to restore the right of appeal against refusal of asylum to LGBT applicants from specific countries (this section covers their ability to prescribe a list of states known as the 'European Common List of Safe Countries of Origin'). Avebury named Jamaica, Nigeria and Ghana.

The exchange ran as follows. Responding to Avebury's question:

Earl Attlee: My Lords, unsuccessful asylum claimants have a right of appeal to the UK courts. Designation under Section 94(5) does not deny a right of appeal to lesbian, gay, bisexual and transsexual applicants from designated countries including Jamaica, Nigeria and Ghana. However, claims from nationals of non-suspensive appeal designated countries that are clearly unfounded must be certified as such and can be appealed only from outside the UK. There are no plans to change this.

[The law says that claims from 'designated countries' will always be unfounded "unless [we are] satisfied that there are serious grounds for considering that the State in question is not safe." The Country information on which decisions on 'safety' are made, including on LGBT issues, is notoriously inaccurate and out of date.]

Lord Avebury: My Lords, the UKBA has collected figures on LGBT asylum seekers since last July, immediately after the Supreme Court ruling that the wrong test was being applied to them. How many cases have been recorded for each of these countries since then? If the overwhelming majority of them were either granted asylum on their application or allowed an appeal notwithstanding the provisions of the Act, does my noble friend agree that the law should correspond with the practice, as it already does for women?

[It is our understanding that the Home Office is still claiming that 'disproportionate expense' is involved in collected figures on LGBT asylum refusals].

Earl Attlee: My Lords, the noble Lord suggested that the wrong test was being applied previously. We are happy with the new test in HJ and HT [the Supreme Court decision on 'discretion' and relocation, June 2010]. He asked me to cite some statistics and I will write to him, but a clearly unfounded claim is one that is so clearly without substance that it is bound to fail even were all other aspects of the applicant's claim accepted. Certification is subject to judicial review.

Lord Rosser (Labour): My Lords, if it is the Government's view that the right of appeal already exists, as I understand the Minister to have said, in the light of the recent Supreme Court ruling that application for asylum should be accepted if it is satisfied that a gay person who lived openly would be liable to persecution in the country of origin, would it not be appropriate to amend Section 94(5) of the Nationality, Immigration and Asylum Act to add sexual orientation to the list of specific descriptions of named categories of people who have the right of appeal?

Earl Attlee: My Lords, no, because all cases are considered on their merits. If there is no reason to suspect that an applicant is not gay and he comes from a homophobic state, he will have a good claim for asylum.

Baroness Hamwee (Liberal Democrat): My Lords, the Minister will understand the comments made by those who have been subject to these procedures - that, for instance:
"If you do not fit" the border agency's "view of a stereotypical gay person then they don't get it - how do I prove I'm a lesbian?". [Source]
I am not asking the Minister to give a direct answer now but perhaps to take my question back to consider it, because I have not given him warning of it. In Section 94, there is the opportunity for the Secretary of State, when he thinks that it is appropriate, to add other attributes. Is the word "reasonably" implied when the Secretary of State has to consider those other attributes?

Earl Attlee: My Lords, the noble Baroness is right on her first point on the difficulty of reliably determining whether someone is gay or not. I accept that point. But if the claim is not clearly unfounded, the applicant will be able to put that to officials and, if necessary, to an appeal court.

The noble Baroness talked about Section 94. We do not think that it is necessary to make a further designation under Section 94 as she suggests.

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