Sunday, 1 May 2011

Has the UK government met its promise on LGBT asylum? We don't know

By Paul Canning

During last year's election campaign LGBT voters may have been surprised to notice the Labour government outflanked in the progressive stakes by the Conservative Party.

Labour's promise to LGBT voters had nothing to say on the treatment of LGBT asylum seekers. This was perhaps unsurprising as to say anything would have required saying something which was bound to draw attention from the anti-asylum seeker tabloids and on the other hand would have reminded LGBT voters of a record which involved defending a policy of telling those seeking sanctuary to 'go home and be discrete'.

Following the election, the Conservatives and the Liberal Democrats produced a Coalition agreement document which actually said nothing more than the status quo - those at proven risk wouldn't be returned - but politically drew a line under Labour's record and promised something better. A few weeks after the election came the landmark decision of the Supreme Court which ended the 'go home and be discrete' policy of Labour - and see S.Chelvan's article which explains exactly why the decision was LGBT legal history - which was welcomed by the Conservative Home Secretary.

Page, turned?

This Coalition agreement promise stood out in a relatively thin document alongside another one on the detention of child refugees, but unlike that one it has had almost no scrutiny.

The Guardian even published a 'pledge tracker' which considered the pledge on LGBT asylum met BY the Supreme Court decision.

One core reason why there has been little scrutiny of the promise has been an absence of hard facts (I know this from experience of trying to draw attention). Individual cases, anecdotal evidence, 'hard luck stories' (as described to me) - lots.

But those involved with sexuality based asylum claims know that there has been a development since the Supremes spoke - for the worse.

The Supreme Court decision handed down four rules for deciding on whether protection must be offered. Its first question is whether the applicant is lesbian or gay. And many of us working with applicants believe that this has led to increased rejection of applications on that basis (previously rejection would have been on other grounds).

For example, there are several cases I am aware of where people who have been detained and have been recognised as gay in detention and harassed as a result are still not accepted as gay by the Home Office.

In one bizarre case a Jamaican lesbian is not believed despite her girlfriend having been accepted and given asylum and the woman's evidence being crucial to her girlfriend's case!

There are other problems with a 'lag' in the system which means that cases filed before the decision are still being judged under the old rules. That judges are applying out of date rules. That cases which have been in the system for a long time are not being properly examined under the new rules.

But in case after case the claimant is not accepted to be gay and the usual 'credibility' issues are raised. These often amount to minor discrepancies in a story, such as an date error in one case in a witness' testimony.

Now The Guardian has published an article pointing out that the government's promise cannot be said to have been met (or measured) - because no statistics are being kept. And they aren't being kept on the grounds of cost.

Yet the measures which have been undertaken have involved spending money.

LGBT Asylum News believes that what has been done is one half day's specialised training organised by Stonewall and UNHCR of all UKBA agents and the inclusion of sexuality in equalities training of immigration tribunal  judges (which also involves UKLGIG). Stonewall, UKLGIG and UNHCR had input into training which was delivered by UKBA over a day and also fed back on a pilot exercise. Stonewall carried out short training for judges on 'what LGB is'. As well, an updated guidance note was published as a result of the Supreme Court decision.

These measures are included in the Home Office's equalities plan (PDF), however in a sign of the lack of urgency the Home Office's Business Plan (the development of Business Plan's was trumpeted by the government at the time), published in November, did not include anything on LGBT asylum in a run-through of government pledges it would be meeting (child detention was included).

The government has specifically ruled out other measures which would help LGBT asylum seekers. It will not exclude sexuality-based claims from 'fast track' decision making - as some other categories of claim are - despite Minister Damien Green in a letter to Dr Hywel Francis MP, the Chair of the House of Commons Joint Committee on Human Rights, accepting that they "can raise complex and specific issues based on cultural differences and the possible trauma of the individual concerned."

'Fast track' claims are far harder to win because legal options are dramatically reduced and people - often traumatised from torture and other bad treatment, as Green acknowledges - are invariably detained.

In the letter to Francis, Green refers to Stonewall's report 'No Going Back' - however that report made 21 recommendations, which went far beyond training of staff. For example, the report discusses the effect of the dispersal system on LGBT asylum seekers who are sent to towns where it is impossible to access appropriate and safe support. They are often forced to live with people who do not accept them and several reports have found that they can be at risk of violence. We are aware of  cases where UKBA has been asked to move LGBT asylum seekers closer to sources of support but has refused.

Green does acknowledge criticism of the crucial 'country information' on which many case decisions hang. In particular, he acknowledges the criticism made by the Shadow Foreign Secretary in the 'BN' Ugandan case that that country's information was two years old and made no reference to LGBT. In the letter he notes that at the time of writing only three country reports made any reference (since he wrote new Uganda guidance has been published which does include LGBT issues, however problems remain with its contents).

Stonewall made 21 recommendations
Green says in the letter that other work is "in hand" to address the (wide ranging) issues raised in Stonewall's report - but it is not in any of the plans published by the Home Office (and the business plan covers the entire life of this parliament).

The biggest specialist group, the UK Lesbian and Gay Immigration Group (UKLGIG), handling sexuality based claims agrees in The Guardian article with my experience and that of others working with claimants - it is becoming more difficult for asylum seekers to "prove" to the authorities that they are homosexual.
"It has always been difficult to prove but more frequently now, people are not being believed," says Erin Power.
Steve Symonds of the Immigration Law Practitioners Association agrees that they know of cases where legal decisions have been made "which we know now to be wrong".
"The sensible thing to do would be to review cases of removal. When you get to a point where you have to put someone on a plane for removal, you should get their file out and make sure there's nothing of concern. They should check they have not claimed on the grounds of being gay, because they know that there was an important decision in the court which may be relevant."
Last November a Nigerian lesbian, 'Sarah', was removed to Lagos despite the best efforts of her MP. She wasn't believed to be gay.

On arrival she lost what money she had to the Nigerian police. Without any family support - because she is a lesbian - she was forced to rely on support from strangers on the mean streets of Lagos and was thrown out of several homes once discovered to be lesbian. Over the months she has been raped at least twice.

She was visited earlier this year by the Rev. Jide Macauley who found her in a desperate state. Whilst it would theoretically be possible to launch a case to correct the wrong and get her back - as happened with the Ugandan John Bosco - it has proved very hard to find a lawyer prepared to take it on.

A UKBA spokesperson is quoted by The Guardian as saying that they are "reviewing how data on sexual orientation cases can be recorded more effectively and whether any resulting data can be published."

Good. To refuse on grounds of cost is a false economy on financial grounds because many if not most of the cases currently being fought, with people being detained and going through several layers of legal strife, will be or have been eventually won because they deserve sanctuary.

Green says in his letter "we need to be sure that the changes we implement are actually making a difference."

But it's not in the plan to "make sure". So they need a new plan. And not just for financial costs but to avoid more cases like that of 'Sarah'.

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