Monday, 23 May 2011

How one gay Tanzanian's asylum rejection shows the UK system's unfairness

Eddy Cosmas (centre) at NUS LGBT conference
By Paul Canning

A gay Tanzanian activist has had his asylum case rejected at the first hurdle because he's not been accepted as gay. His case has been determined as one which can be quickly decided and he's therefore been placed in the 'fast track' process and immediately detained.

His treatment sets up an unnecessary battle with the Home Office, is a textbook example of how not to judge a gay asylum claim and undermines the promises of change made by the British government.

Edson “Eddy” Cosmas is a young black openly gay man originally from Tanzania. He was attacked at a club in Zanzibar and then by police. His father threatened to kill him when he was discovered to be gay. He sent him for counselling and eventually sent him away, to the UK. After being here for a few years and after overstaying his visa he took the advice of others and applied for asylum.

Homosexuality carries up to life imprisonment in Tanzania and, although there is not much coverage in human rights reports of the situation for gay people what exists is similar to that elsewhere in sub-Saharan Africa showing the risk of discrimination, blackmail, violence from the community and the state. The experience Eddy relates isn't uncommon and it is near impossible in Tanzania as elsewhere for a gay man to live openly.

Following last July's Supreme Court decision, which ended the 'go home and be discrete' approach to gay asylum claims, UK Border Agency (UKBA) developed guidance for decision makers which highlights that they must apply the test which the justices laid down:
a)  Is the applicant gay or someone who would be treated as gay by potential persecutors in the country of origin?

b)  If yes, would gay people who live openly be liable to persecution in that country of origin?

c)  How would the applicant behave on return?  If the applicant would live openly and be exposed to a real risk of persecution, he has a well-founded fear of persecution even if he could avoid the risk by living discreetly.

d)  If the applicant would live discreetly, why would he live discreetly?  If the applicant would live discreetly because he wanted to do so, or because of social pressures (e.g. not wanting to distress his parents or embarrass his friends) then he is not a refugee.  But if a material reason for living discreetly would be the fear of persecution that would follow if he lived openly, then he is a refugee.
They are also told:
When interviewing an applicant, before assessing the credibility of an account and before deciding whether there is a need for protection, decision-makers should have an awareness of  the status and treatment of LGBT individuals in the applicant’s country of origin.
They are told to look at Home Office Country of Origin Information (COI) on LGBT in that country. None exists on Tanzania but they are also told not to take that to mean that LGBT are not persecuted just because no COI exists.

Their guidance explains how LGBT from countries like Tanzania:
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. 
Greater understanding of LGBT asylum seekers is supposed to have been reinforced through compulsory full day training which all Border Agents received earlier this year.

The guidance also explains that:
Although an individual’s appearance or demeanour may have a bearing on the persecution suffered in the country of origin, stereotypical ideas of people – such as an ‘effeminate’ demeanour in gay men or a masculine appearance in lesbians (or the absence of such features) should not influence the assessment of credibility. Nor should an adverse judgement be drawn from someone not having declared their sexual orientation or gender identity at the screening phase.
Because of the Supreme Court tests, interviewers are supposed to ascertain what would be the applicant's behaviour on return, i.e. would they 'live discretely' and if so why.

It appears that in Edson's case much if not all of this guidance has been ignored.

In looking at the situation of LGBT in Tanzania the agent, in the letter rejecting his claim, attempts to paint the existence of bars where gay men are known to be found and other gay meeting places and gay organisations as indicating that it is possible to be gay, albeit 'discretely'. Also, a lack of prosecutions is mentioned, presumably to suggest a lack of formal state repression and that it is 'safe' to return a gay man.

In interview, minor discrepancies in Eddy's statements are taken as totally undermining his credibility. Many relate to his sexual history.

Damningly, his attempts to explain how he would meet men for sex, in the words of the interviewer "in a conservative society like Tanzania", are taken as lacking credibility and - worse - taken as evidence which undermines his asylum claim based on the persecution and lack of state protection for gay men in Tanzania.

Here is what the decision maker wrote:

Edson tries to explain to the interviewer how disowning him meant that his family moved him away, ultimately paying for him to study in the UK. But for the interviewer this is unbelievable because, in his opinion, "one of the main motivations of 'disowning' someone is to announce to the wider world that the family has cut all ties to the person concerned and therefore should not be associated with the acts of the person concerned." So that opinion of the interviewer, based in no knowledge of Tanzanian or African methods of 'disowning' a gay man, is - again - taken as undermining his credibility.

Another point against him is that he didn't immediately claim asylum on sexuality grounds, because, as he puts it, he wasn't sure if he could. This isn't accepted and, of course, not understood, despite the reasons why African gays may not immediately claim forming part of the training written by Stonewall and UK Lesbian and Gay Immigration Group and delivered by UKBA that this officer presumably underwent.

Here's another one. He says UKLGI rather than UKLGIG for the acronym for the UK Lesbian and Gay Immigration Group, the London based group which supports LGBT asylum seekers, and could not remember the door number of the building where they met. This 'damages the credibility of your claim'.

He went to London and Brighton Pride but because he couldn't remember the month they were held that 'damages your credibility'.

They then come to the eleven witness statements about his sexuality, including a past boyfriend's, and the lot are dismissed because of the previous minor discrepancies or major cultural misunderstandings 'undermining your credibility'. The fact that one of his brothers was now prepared to write in support of him and write about the treatment of gays in Tanzania is taken as undermining his credibility, in part because he typed up rather than hand-wrote his letter.

One of his ex-partners wrote in his letter:
I for one know what it means to be gay and living in a community where it is totally not acceptable, and to be sent back to Tanzania would mean him having to struggle to protect himself as there is no law as far as I understand in Tanzania protecting gay people, and as a gay person myself from Nigeria, I know what it means to be living in a community where you are despised. Survival in a community where gay is unacceptable is one of the hardest thing anyone can deal with as it is almost impossible to function as a normal person.
This letter is dismissed out of hand.

He is an active member of the Movement for Justice, a radical international group, but this is undermined, apparently, because he could not recall whether the group has a chairperson or secretary. He's also active in National Union of Students LGBT group - but the photo evidence of this (such as at the top of this post) is completely discounted. The officer assumes he must be some sort of straight student impostor.

Earlier this year the Minister Damien Green rejected the idea that LGBT asylum claims are complex and should not be placed in fast track (some other types of asylum claim are excluded). 'Fast track' dramatically reduces the claimants rights to challenge their removal.

Ironically, Edson's claim should not be complex because he is gay and enough evidence was provided to show this. But now it is complex because the adversarial system and pernickety treatment of his evidence by this officer means that legal wheels must turn and the job of Home Office lawyers will be to continue to try to undermine him.

The behaviour of the person interviewing him, which appears to have taken little to no account of the guidance, sets up an unnecessary battle. Those who know him are fighting for him, demonstrating and petitioning for their gay friend. I'm sure they will eventually win but after much cost.

None of this should have happened.

The consideration of Edson's claim appears to be a textbook example of how not to judge a gay asylum claim. He is well-known as gay by a large number of people who have worked with him to submit evidence about his sexuality because they know the system is adversarial, but to no effect.

Simply put: if Edson's case isn't waved through then what cases would be?

Many of those who work with LGBT asylum seekers believe that the attitude of border agents has shifted now they cannot say 'go home and be discrete' anymore. Instead they say 'you're not gay'.

Erin Power of UKLGIG told the Guardian that since the Supreme Court ruling 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."
LGBT asylum seekers still expect, with good reason, the sort of treatment which has happened in Edson's case. This is not a system which is living up to the promise of change made by the new government one year ago.

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