Another Ugandan asylum seeker is about to be removed from the UK in part because of a flawed legal process. Misquoting legal precedent, the Home Office said Uganda is safe for gay people so long as either they are discreet or they relocate.
This is the third case this year which we are aware of where a lesbian or gay Ugandan asylum claim has in part been refused on this incorrect basis. The precedent ignored by the Home Office is a 2010 High Court decision - 'SB' - which accepted a mountain of evidence from NGOs and other experts of gay men - and crucially in SB's case also of lesbians - being arrested in Uganda just because of their sexual identity and their being persecuted within society.
The case of David Mugwera was considered by Judge AW Khan in Birmingham 3 August. In his decision refusing Mugwera's asylum claim Khan quotes the Home Office saying:
As to risk of return, if the Appellant was found to be credible, he was not at risk in line with decision in JM (2008) UKAIT 0065. Matters have not changed so dramatically that one could depart from JM as a country guidance case in accordance with what was said in SI Ethiopia  UKAIT 0012. One could only depart from country guidance cases in strictly limited situations. The appellant could live discreetly in Uganda out of his own choice. He had claimed asylum because of fear from his family and not from fear from the authorities. He could relocate to another part of Uganda.The JM decision was 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 another Ugandan case we reported in February it was Home Office lawyers quoting 'JM' and arguing that:
"while there may be disapproval of homosexuality, instances of violence and discrimination, there is no persecution."In the case of another Ugandan, Robert Segwanyi, the Home Office repeatedly cited a decision on his case by Judge Hembrough last November, which also incorrectly quotes JM as precedent, as the reason for rejecting Segwanyi's case - and crucially the Home Office 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).Any reference to either discretion or relocation is wrong as the 2010 Supreme Court decision specifically rules this out as a reason for rejecting LGBT asylum claims.
Although the UK Border Agency (UKBA) rejected that Mugwera was gay they did nevertheless suggest that he could relocate to the North of Uganda.
21 year old Mugwera came to the UK last year as a law student and claimed asylum before the end of his visa. His claim has been rejected, he is now without a lawyer and he is due to be removed on Wednesday 28 September at 8pm on Kenya Airways flight KQ410.
He walked in unprepared to the Croydon UKBA office in March and documents we have seen show that there is little physical evidence for his case, it almost entirely relies on his testimony.
We understand that he does not 'present' as gay.
His testimony is that his teenage relationship with another boy in Uganda was discovered and he believes that an aunt used it to blackmail his father (who has since died). When he was discovered with his boyfriend he was beaten by relatives, although this beating is not mentioned in the documents for his case (apparently because he was never asked a direct question regarding this treatment by the UKBA case officer).
His father paid for him to study law in the UK and this was also to 'keep him out of harm's way'. Mugwera had been told that he was possessed by the devil, a common occurrence in Africa. His remaining family has sent him letters disowning him and warning that he should not return. His mother's house was defaced with graffiti after his sexuality became known in the middle-class suburb of Kampala in which he lived.
Mugwera says he decided to claim asylum after receiving the threatening letters. Because of his father's death, Mugwera did not receive the fees to cover his continuing study - Judge Khan suggests that this was why he submitted the asylum claim.
Since he came to the UK he has had only one brief relationship with a married man who he is not in contact with any more. He says he went to the Hoist club in Vauxhall, London, on a few occasions.
Mugwera is not believed to be gay by UK Border Agency because of minor discrepancies in his testimony, primarily because of the dating of his relationship with the boy. He explained the difference was between when they got to know each other and when they started a serious relationship but this difference was taken to seriously undermine his credibility.
Another issue was with the letters from his family disowning him and telling him not to return, one of which had an incorrect date and in which the blackmailing aunt was not mentioned. Although explanations were offered they were not believed and this was taken to undermine his credibility by UKBA.
His previous lawyer's have pointed out that Mugwera "has not exaggerated his case and had not bolstered his asylum claim by saying that he had been to the Hoist Club on more than two occasions and that he had only one relationship in Uganda and another one in the UK."
But the Judge noted that he had not been given evidence that Mugwera had been persecuted in Uganda and that there was no evidence of the blackmail of his father.
He said that the verbal testimony of Mugwera was not enough and that he could have been to the Hoist Club "out of simple curiosity". He rejected the letters as evidence.
The Judge dismisses Mugwera's claim as "contrived". He suggested that as Mugwera would live discreetly in order to not upset his family, therefore the Supreme Court rules were invoked and protection was not needed.
Since the 3 August decision, Mugwera has submitted two letters from friends testifying to his brief relationship with a man whilst in the UK - and therefore to his sexuality - but these were dismissed 18 September by UKBA because they were not submitted with photo ID or other evidence about the friends testimony. We understand that there are others willing to testify about his sexuality.
One of those testifying was Burundian Sherinah Mukasi, whose identification we have sighted. Her sister is a friend of Mugwera's mother and she has been friends with him since he arrived. She knows he is gay and met Mugwera's then boyfriend at a party thrown by her sister.
Mugwera says that he has not been well served. He says that on making his claim he was dispersed (sent) to live in Birmingham and a lawyer provided who did not make efforts to secure evidence which could potentially have convinced a judge, as shown by Mugwera's efforts subsequent to the Immigration Tribunal appearance, by himself, to secure evidence as to his sexuality.
It is unclear from the evidence available to me that Mugwera is gay however it appears that he may not have been well-advised and has not been given a sufficient opportunity to support his claim. Both the judge's decision and the UKBA's makes assumptions about what Mugwera would provide with his claim which Mugwera appears to not realise.
Stonewall's report 'No going back' details why LGBT asylum seekers may be fearful of authorities and in interview not present a complete story. UKBA guidance (see Asylum Policy Instruction (API) published in October 2010) reflects these findings and says that consideration should be made of the traumatised state in which someone may be telling their story:
A common element in the experience of many LGBT applicants is having to keep aspects and sometimes large parts of their lives secret. This may be in response to societal pressure, explicit or implicit hostility and discrimination, and/or criminal sanctions.The judge's decision was that Mugwera would live discreetly in order to not upset his family - therefore the Supreme Court rules were invoked and protection was not needed. The UKBA guidance states that:
Lesbian and gay applicants may feel a strong sense of shame and stigma about their sexual orientation and may feel that persecution they have experienced was caused by this identity. They may also come from cultures where they have never openly discussed their sexual orientation.
For these reasons lesbian and gay asylum seekers may struggle to talk openly about their sexual orientation. An open and reassuring environment will help to establish trust between the interviewer and the claimant, and should help the full disclosure of sensitive and personal information
If an individual chooses to live discreetly because s/he wants to avoid embarrassment or distress to his or her family and friends s/he will not be deemed to have a well founded fear of persecution and will not qualify for asylum. This is because s/he has adopted a lifestyle to cope with social pressures and not because s/he fears persecution due to his or her sexual orientation. If an individual chooses to live discreetly because s/he fears persecution if s/he were to live as openly gay, lesbian, bisexual or transgender then s/he will have a well founded fear and should be granted asylum.The judgment that Mugwera would be voluntarily discreet is not based on any statement by Mugwera in documents we have sighted.
Given the serious question mark over whether Mugwera is gay and given the threats claimed from his family and community, within the context of a worsening and deadly situation for gay people in Uganda, I believe it is unsafe to remove him. He needs new advice and another opportunity to present his case.