Thursday, 1 September 2011

How the Home Office is misusing law in gay Ugandan asylum seeker case

BBC report on Segwanyi republished in Uganda's Monitor newspaper. Click for full scan of page.

By Paul Canning

The British Home Office in judging the claim of gay Ugandan asylum seeker Robert Segwanyi is misapplying the law, according to its latest refusal of his case.

Segwanyi was jailed for homosexuality and tortured but escaped and fled to the UK and claimed asylum. His case was rejected by an immigration judge last November and, on the basis of the judge's decision, by the UK Border Agency (UKBA).

A campaign for Segwanyi which has included a 3000 strong petition has prevented several attempts to remove him. Evidence that Segwanyi is "obviously gay" as well as a statement by Ugandan Anglican Archbishop Christopher Senyonjo on the risk of removal is amongst the new evidence submitted to support Robert's case, however this new evidence does not appear to have been considered by the agency as it is not referred to in his last rejection letter dated 25 August.

Using the wrong precedent

In both Immigration Judge Hembrough's decision last November and the UKBA's latest rejection of Segwanyi 's case (citing the judge's decision) reference is made to case law precedent on gay Ugandan asylum seekers - but the wrong case law is cited. And this is not the first time this 'mistake' has been made in rejecting the claim of a gay Ugandan asylum seeker.

In another Ugandan case we reported in February Home Office lawyers argued that a 2008 ruling ('JM') applied. This said that LGBT could be safely returned to Uganda if they relocated and lived 'discreetly' and that Uganda's sodomy law was not used to jail homosexuals. In January 2011 Home Office lawyers on the Home Secretary's behalf were still arguing that in Uganda:
"while there may be disapproval of homosexuality, instances of violence and discrimination, there is no persecution."
The correct legal precedent is 'SB 2010', which overturns 'JM' on how gay Ugandan cases should be considered. In this case a judge accepted a mountain of evidence from NGOs and other experts of gay men - and crucially in this case also of lesbians - being arrested in Uganda just because of their sexual identity. This rejected Home Office lawyers arguments of an absence of persecution, particularly of lesbians. 
Refusing the Home Office and allowing the judicial review, [Immigration Judge] Hickinbottom wryly noted that the presentation of the previous judgment [JM] once again by [then Home Secretary] Alan Johnston's representative as an argument for deportation - despite all the subsequently available evidence of persecution of lesbians in Uganda - could not be used as "a trump card for the Secretary of State".
In SB, Hickinbottom dismissed Home Office lawyers resorting to JM 2008 precedent writing that:
"The 'climate has changed' [in Uganda], 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."
In rejecting Segwanyi's case again, the Home Office quotes Judge Hembrough's use of JM precedent - he said:
"Even if I am wrong as regards the Apellant's homosexuality I see no reason to depart from the country guidance in JM which states: "Although there is legislation in Uganda which criminalises homosexual behaviour there is little, if any, objective evidence that such is in fact enforced. Notwithstanding a prevailing traditions [sic] and cultural disapproval of homosexuality, the evidence does not establish that in general there is persecution of homosexuality in Uganda"."
but the Home Office omits the inherent legal error ('SB' is the precedent) and says:

"It is not considered that the treatment of homosexuals in Uganda has significantly worsened since the date of the Immigration Judge's determination" (my emphasis).
This bizarre twist in logic ignores that the judge's decision was based on incorrect precedent relating to 2008 - not to November 2010 - never mind that it ignored the great mass of evidence of increased persecution since 2008

No evidence of 'penetrative sexual acts'

In February this year, lawyer Mohammed Ayub of Chambers Solicitors in Bradford, who represented a Ugandan lesbian in a case where Home Office lawyers quoted 'JB' and argued that she would be safe because there is no repression of lesbians in Uganda, told me that if an asylum claimant doesn't have a competent lawyer a judge will often adopt the view of the Home Office. We've previously reported that it's been shown the judges can ignore or even be ignorant of legal precedent.

Segwanyi's torture scars, including from burning plastic
In Segwanyi's case, the Home Office lawyer before Hembrough last November argued that even if Robert was gay, gay people are not at risk in Uganda. Hembrough's determination follows the Home Office lawyer's arguments.

The question of why Home Office lawyers are still using 'JB' precedent and why they are still arguing that there is no repression of LGBT in Uganda is one likely to be followed up as it has yet to be satisfactorily answered.

There are numerous other reasons for concern at Judge Hembrough's determination, such as his treatment of the evidence of a leading psychologist, Professor Cornelius Katona, particularly the judge's claim that the psychologist had said Segwanyi was not gay which was not the case, as the psychologist has repeatedly and loudly insisted, and his rejecting of Katona's finding that Segwanyi suffered Post Traumatic Stress Disorder, something Katona said could not be faked.

Another might be the judge rejecting the November appeal in part on the basis of a lack of medical evidence "which might show that the Appellant had engaged in penetrative sexual acts" - a comment which is reminiscent of the ‘virginity’ tests given to South Asian brides by the British authorities in the 1970s or the use of phallometry, a method used by the Czech authorities to judge gay asylum seekers that involves attaching electrodes to the penis to measure sexual arousal.

The new rules

Last July's ruling of the Supreme Court took 'SB' and overthrew the Home Office's 'discretion' and relocation argument at the highest level, for every country.

Barrister S. Chelvan explains:
"The Court expressed in clear language, that the correct test .. involves firstly making a finding that an individual is gay, lesbian or bisexual, or will be perceived to be. This importantly recognises the risk to those who do not live what I term a ‘heterosexual narrative’, ie living, or being perceived to live, a straight life, by engaging in a socially expected heterosexual gender sex role. Secondly, an assessment will be required of what would occur to a gay, lesbian, or bisexual person, if they lived ‘openly and freely’ in the country of origin. If, as a result of living openly, there would be persecution, then the fear is well-founded. Thirdly, if it is found that they will live ‘openly’ and consequently be subjected to a real risk of serious harm, then they are entitled to refugee status. Nevertheless, if, on the other hand, they are discrete, due to this fear of persecution, then they are also a refugee."
The Supreme Court laid down new rules, which were subsequently codified by the Home Office in a new Asylum Policy Instruction (API) published in October 2010 on sexuality-based asylum claims and which UKBA officers are supposed to be trained to follow.

This guidance says that consideration should be made of the traumatised state in which someone may be telling their story. This is especially relevant as the rejection of Robert's account of his relationships in the UK and in Uganda as inconsistent and 'not credible' was because of language issues and Professor Katona said that

"Mr Segwani's Post-Traumatic Stress Disorder [means that] there is a strong possibility that his high levels of fear and stress may have led to his assenting to be interviewed in English without taking fully into account the disadvantages of doing so."
That July 2010 interview which is picked apart for inconsistency and on which basis Segwanyi's case is still being rejected was conducted mere weeks after he escaped from prison and fled with the Ugandan police looking for him and putting up 'wanted' notices. Judge Hembrough explicitly rejected the idea that he should be re-interviewed.

In his letter to UKBA, Segwanyi's MP, Mike Hancock, writes that Hembrough's findings about Segwanyi being interviewed in English, about his Post-Traumatic Stress Disorder and his homosexuality:

"Are at best based on somewhat prejudiced views and not in line with the evidence. Indeed if Mr Segwanyi had wanted to mislead the immigration authorities he would surely have acted in a different way."
The UKBA API says that officers are supposed to ascertain why someone claiming asylum on grounds of persecution because of sexuality will be 'discrete'. The Supreme court rules include four tests, three concerning why someone gay would be 'discrete'. If it is not their own choice, if they are saying they'd be 'discrete' because of societal or state pressure, they are a refugee the rules say.

In rejecting Segwanyi's claim reference is made to a supposed comment in his interview in July 2010 that he would be discrete because his family would want him to be. As noted, there are serious questions regarding the translation of his answer as English is not his first language and the interview was conducted in English, but if current guidance was being followed this claim on how he would behave would be directly asked, rather than being extracted out of context from other testimony, as it has been.

Different department, different Uganda policy
As well as the instructions and rules having changed, the UKBA's own 'country information' on Uganda changed in February this year, after much criticism of the slowness by which such information was updated. This now recognises the persecution of LGBT in Uganda, in particular it points decision makers at an Amnesty International report from last year.
"Amnesty’s 2010 Report 'I Can’t Afford Justice' published on 6 April 2010 commented “…section 145 of the Penal Code Act has been and continues to be used by the police and other law enforcement officials to subject lesbian, gay, bisexual and transgender (LGBT) people in Uganda to arbitrary arrest and detention often resulting in torture or other cruel, inhuman and degrading treatment.” [10b] This comment is contrary to that made by UHRC at 19.04 and should be considered accordingly. [This means that this information should be prioritised over prior information.]"
Any claim that the sodomy law is not enforced and that LGBT are not persecuted in Uganda, such as by Home Office lawyers representing the Home Secretary, actually mirrors the argument of those pushing for the so-called 'Kill gays' bill. Its advocates say that a new law is needed in Uganda precisely because LGBT are not now persecuted and new law is therefore needed to persecute them.

Other parts of the British government are heavily engaged with critiquing the same growing persecution of Ugandan lesbians and gays that is detailed in evidence presented in 'SB', the February case and Bishop Senyonjo's evidence regarding Segwanyi.

UK Ministers have made statements against the 'Kill gays' bill and state-sanctioned persecution. The Foreign Office is "concerned" and is reportedly privately lobbying Ugandan politicians. The previous Prime Minister even pulled aside the Ugandan president at an international conference and told him to stop the bill.

But another part of the government, in August 2011, thinks differently if it is still using the same argument on the lack of persecution of Ugandan LGBT advanced in 'JM', and supported by Judge Hembrough in Segwanyi's case before him last November, as it appears to be in its latest argument rejecting Segwanyi.

Robert's case has now been reported (picking up from the BBC report) in the respected Ugandan newspaper The Monitor (see scan of their report at the beginning of this article). It is cited in a section covering mentions of Uganda in foreign media, as often occurs in media in other countries which picks up on mention of them elsewhere - see Australia's media for other examples of this.

The Home Office (and immigration judges) routinely discount media coverage on the basis that it is sought "for the sole purpose of of attempting to increase any perceived risk he may face on return" as the latest rejection letter for Segwanyi puts it. BBC reports and other coverage is not considered part and parcel of normal civil society investigation of how the Home Office works. Any journalistic or campaigning challenging of Home Office decisions which results in media coverage must be 'manipulation' personally orchestrated by the asylum seeker - according to their own words there cannot be any other reason for it.

Another argument used is that such coverage, usually African coverage, has been bought and deliberately placed. It remains to be seen if this will be used regarding the Monitor coverage, given that the Monitor is Uganda's equivalent of The Guardian or The New York Times

Mike Hancock MP will be protesting his treatment regarding his interventions on behalf of Segwanyi. He was written to by UKBA asking for further information and then the next day written to again to be told that they'd already made a decision.

Hancock's office say that he is currently considering putting down an Early Day Motion in the House of Commons concerning Segwanyi's treatment.

Segwanyi's lawyer is submitting an appeal today.

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