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10 March 2015

“Guilty until proven innocent“: the trial of LGBT asylum seekers detained in the UK

Gay people who seek asylum in Britain and end up in detention centres continue to face the "reverse of justice" and the threat of deportation.

By Tom Batchelor

Sitting in the visitors’ hall of high-security Colnbrook immigration removal centre, Eric cuts a feeble figure beside two burly security guards who are keeping a watchful eye.

Eric was just 20 when he fled death threats in his native Ghana. The son of two farmers, he says since his village in the conservative African nation discovered he was gay, neighbours are no longer buying crops from his family’s smallholding, and now his relatives are struggling to survive.

Eric manages just a few of minutes of talking – whispering, almost – before he winces in pain and slowly lifts himself out of his chair. “I was beaten by men with sticks and nails,” he mutters. “It hurts to sit down. It hurts to talk and it’s painful even to breathe.”

“I fear going back because my life would be in danger. My parent’s used to call me but now they’ve stopped. They say they are in financial ruin because people aren’t buying their produce anymore.”

His story is not uncommon. Eric is one of a growing number of gay and lesbian asylum seekers trapped in the UK’s labyrinthine asylum system, which increasingly sees vulnerable people from some of the world’s most repressive countries locked up indefinitely, given scant time or resources to prepare their case, and ultimately threatened with deportation at short notice.

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The arduous process for gay men and women seeking asylum in the UK comes despite a pledge by the government, spelled out in the coalition agreement, to “stop the deportation of asylum seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution”.

The promise, repeated by the Home Secretary Theresa May, was backed by a Supreme Court ruling in 2010 that two gay men, from Cameroon and Iran, could remain in the UK. Their cases had initially been rejected on the grounds that the men could conceal their sexuality by behaving discreetly. However the court agreed that this contravened the 1951 Refugee Convention, which governs how countries are supposed to treat asylum seekers, and the case was quashed.

“To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour . . . is to deny his fundamental right to be who he is,” read Lord Hope, in giving his judgement. Research by the UK Lesbian and Gay Immigration Group (UKLGIG) found that prior to this ruling, 98 to 99 per cent of asylum claims made by lesbians and gay men were rejected, compared to 73 per cent of general asylum claims.

The test now applied to lesbian, gay, bisexual and transgender (LGBT) asylum seekers has been extended to assess whether they would face persecution if they lived freely and openly, a landmark victory for campaigners and for those caught up in the system.

Yet still, LGBT asylum seekers are being routinely threatened with deportation, booked on flights and forcibly removed from the UK – including the recent high-profile cases of Anne Nassovi and Prossie N. More still are undergoing the same gruelling process, only to launch last-minute judicial reviews that clog up the system and, in doing so, buy them valuable time.

Eric faces an uncertain future, and while he awaits the decision on his asylum application, he says he can never return to his homeland. He was outed as gay after being caught kissing his then boyfriend on an abandoned construction site on the outskirts of town – the only place he says he felt safe to do so – and was forced to flee his home. Having applied for a tourist visa for the UK and twice been refused, he was eventually granted one and arrived at Heathrow in 2012.

Eric spent his first weeks in the UK sleeping rough at Hatfield train station. Not long after, he was picked up by police and was then arrested for outstaying his visa. Since being held at the detention centre, Eric has suffered from depression and is unable to sleep at night because of the pain caused by the beatings he suffered in Ghana. He has been separated from his partner, Foster, who was moved to neighbouring Harmondsworth detention centre, and has complained about limited access to both medical and legal help.

Yet despite all this, and regardless of the fact that Eric has since been recognised as a victim of torture – which statements by both the Home Office and High Court make clear should exempt him, and others like him who were tortured before claiming asylum in the UK, from being detained – he remains in a high-security immigration centre, locked in his room between 9pm and 8am each night, and still faces the prospect of deportation with little warning.

Homosexuality in his birthplace of Ghana is illegal, and LGBT people face widespread discrimination, police harassment and extortion attempts. It is no wonder that people like Eric flee to countries such as the UK, but human rights activists believe what greets them on their arrival is often not much better.  

Proving you’re gay

According to Paul Dillane, a former expert in refugee issues at Amnesty International, one of the biggest problems for asylum seekers in gaining refugee status is credibility – simply, proving that they are gay.

“Consistently, we see cases where the answer that the Home Office is giving is ‘no, you’re lying, you’re making it up’. The Supreme Court has been very clear that if somebody is openly LGBT and from a country where they face a real risk of persecution, they should be given refugee status. The government agrees with that position, but in practice, years after the Supreme Court’s judgement, we’re still seeing cases that raise serious concerns about how the credibility assessment takes place.”

Dillane highlighted “inappropriate, shocking and highly sexualised questions”, as well as assumptions about what it is that “genuine” gay people should be doing.

“Asylum seekers survive on about £5 a day, and yet civil servants at the Home Office find it bizarre if they’re not going gay clubbing in their local community. There are assumptions about what it is that a ‘good’ gay applicant should be doing. These inappropriate questions need to end. Stereotypes are finding their way into the asylum system, partly due to a lack of training. Civil servants’ own assumptions and prejudices seem to be featuring in the asylum system, and that has no place,” he added.

Harriet Nakigudde, a victim of “corrective rape” – a hate crime used to try and “convert” lesbians to heterosexuality – by her family in Uganda, said her asylum claim was refused partly on the grounds that she had not had a partner in the UK for five years. Detained in Yarl’s Wood immigration centre, Harriet claimed she has been denied adequate counselling and, like so many others, was forced to launch a judicial review. In the meantime, a removal direction was issued, and Harriet was taken to the airport, however she collapsed while boarding the plane and the process was halted. If deported, she could face 14 years in prison.

Hassan, a 24-year-old asylum seeker from Bangladesh, has witnessed first-hand the intrusive nature of questioning that some are subjected too. He fled his rural village after starting a relationship with another man, and now says he fears what would happen to him if he was to return home.

“The Home Office don’t believe me. They asked me over 200 questions, personal questions. They asked me if I had sexual relations with my boyfriend. I was nervous but I answered them, but I’ve never been questioned like that in my life before. I was scared, I didn’t realise I would face a situation like that in my life.” Hassan says he even feared revealing his sexuality in front of his Bengali interpreter, in case the information was passed on to others in the Bangladeshi community.

Twice he was given a ticket to fly home – on each occasion he applied for a review of his case and the ticket was cancelled. Speaking from inside Harmondsworth, as he awaits the outcome of a judicial review on his case, Hassan wonders whether his experience points to a more worrying trend. He says immigration officials periodically threaten asylum seekers with imminent deportation, regardless of whether they are likely to be removed. “Some of my friends told me it could be their policy, they want to warn you, don’t do anything that will make you have to go back.”

Jackie Pierce, a solicitor and trustee for UKLGIG, is clear that the system is failing lesbian and gay asylum seekers. “People have started being refused in very large numbers on the basis that they were not the sexual identity they were claiming,” she says. “It’s a difficult thing to prove.”

And Labour MP John McDonnell, whose west London constituency includes two immigration removal centres in the shadow of Heathrow, has been a leading voice in the campaign to reform the asylum and detention system. He says: “The failure to monitor asylum claims is a reflection of a system in turmoil, in which large numbers of innocent people are detained for no just reason and others have their lives put on hold by delays in decision making.

“The monitoring undertaken by individual detention centre monitoring boards has demonstrated that a large percentage of even those held more than 12 months are released and eventually given leave to remain. Brutal and unfit for purpose, this system destroys lives.”

Where is safe?

Pierce believes part of the problem lies in how the Home Office evaluates countries that are “safe” for LGBT asylum seekers who lose their case to be sent back to. “People are still being told that despite being lesbian or gay, they are not at risk in their home country. The Home Office have to be dragged into a position where they accept that a country is dangerous. There’s a real tendency to assume that if there are no news reports that say these [homophobic] incidents have occurred, that that means there is no problem.

“That’s a dangerous assumption to make for a country where it is dangerous for anyone to know you are LGBT. People will be hiding their identity. You get the feeling that if it’s going to make it easier for asylum seekers to prove their case, it gets resisted by the Home Office.”

The situation is even more complicated for bisexual people, she adds. This is particularly true if you’ve had children, which Pierce says is, “taken as a clear sign that you must be straight”.

“You get very difficult assertions made that if you’re attracted to both men and women, then why not just limit yourself to the opposite sex when in your home country. It’s a lack of understanding about the complexities of people’s lives.”

Aderonke Apata faced a similar hurdle in proving her sexuality when interviewing officers discovered she had a husband in her native Nigeria. She now lives in Manchester and is awaiting a judicial review on her case – ten years after she first arrived in the UK. “My application was refused because I’ve had relationships with men in the past,” she said. “They didn’t believe I was a lesbian.”

The Home Office says it has worked with the gay rights campaign group Stonewall, the UKLGIG and the United Nations High Commissioner for Refugees to provide specific guidance on assessing asylum claims brought on the grounds of an applicant’s sexual orientation. Yet campaigners claim it is not the policy that is lacking – rather the oversight and scrutiny of those implementing it. And while the Home Office has responded with mandatory training sessions, and there has been a small rise in the proportion of applicants granted asylum  up from 28 per cent in 2009 to 37 per cent in 2013  LGBT people are still facing deportation in growing numbers.

In December 2013, Prossie N was flown from the UK to Uganda, a country which has one of the worst gay rights records in Africa. Its president, Yoweri Museveni, recently passed an anti-homosexuality bill, increasing the tariff for gay sex or marriage to life imprisonment, while simultaneously closing down much of the country’s LGBT support network and outlawing the promotion of homosexuality. Gay rights campaigners here in the UK say that Ugandan organisations they have worked with in the past are now in crisis, and that Prossie herself has had to escape to the capital Kampala using money wired to her by mobile phone after her situation became unsafe.

David Hanson MP, shadow minister for immigration, warns that the government isn’t doing enough to safeguard vulnerable asylum seekers in the UK. “It’s important that people are treated with dignity and humanity when applying for asylum, and there are worrying allegations about the Home Office’s treatment of those fleeing from persecution because of their sexuality.

“Ministers made a commitment to reform this area of immigration but have done nothing, so they urgently need to look again at how these applications are dealt with, and ensure that the cases are treated efficiently, but with respect and sensitively.

“High profile cases that seem to be unjust undermine public confidence in our immigration system and send the wrong message about the way we treat those seeking protection in the UK.”

The fast-track system

The apex of anger directed towards the system by campaigners – and those passing through it – is the fast-track procedure, which civil rights group Liberty says is being employed on the basis of “administrative convenience” and which is leading many asylum seekers to be “denied the right to a full and fair consideration of their claim”.

Although most asylum seekers are not detained during their application, if the UK Border Authority believes a quick decision is possible, a process known as Detained Fast Track can be used by officials to hold a person in detention while their case is decided. It has led to criticism that those seeking asylum are not given the time or resources to compile enough evidence to support their claim.

Isadore, a gay man from Cameroon currently being held in Colnbrook, claims he was unable to present as evidence, an article published in his home country which had outed him as gay. Speaking through a French interpreter, he says the fast-track procedure meant his case had been rushed through the courts, leaving the judge unable to adjourn the trial to allow further evidence to be obtained. Isadore only managed to get hold of the newspaper containing a picture of him attending a gay conference in Cameroon in 2012 after the trial had concluded, and he now faces deportation.

Quoting his flight reference number, Isadore’s lawyer, Hani Zubeidi, explained he had been booked onto a plane back to Cameroon two weeks ago, which had been cancelled at the last minute. He is now working on a pro bono basis, as Isadore had not qualified for legal aid: “Invariably, they [legal aid firms] tend to pick and choose, because budget cuts have restricted the amount of files that they can open. So they won’t pick the harder cases such as his,” Zubeidi says.  

“This situation is quite normal though, quite run-of-the-mill. It highlights the weakness of a fast-track determination process. To try and get all your evidence from Cameroon in a limited amount of time is not that easy.”

A separate legal practice, Wilson Solicitors LLP, which is not working on Isadore’s case, says that it was on a shrinking list of firms offering asylum seekers advice, as the legal aid budget has been reduced and providing assistance to those negotiating the asylum system has been made “very unprofitable”.

Another of the system’s pitfalls is that it places the burden of proof firmly on the asylum seeker. According to Anthony Gard, a campaigner with Movement for Justice, a group that defends the rights of asylum seekers in detention, “it’s the exact reverse of any normal court, where you’re innocent until proven guilty. In asylum cases, you’re guilty until you find some way, after you’ve fled from a country, often without papers, to prove you are genuine.”

“They go into a long gruelling interview, often in a state of shock, sometimes denied an interpreter, sometimes for up to ten hours of constant questioning, all designed to get you to contradict yourself. This is a completely unjust system, it’s a denial of human rights, and the only purpose of this is to maximise the number of deportations. It’s traditional divide and rule politics.”

“The case of LGBT asylum seekers is a double problem – you’re asked to prove that you are gay, it’s frankly a demeaning, dehumanising, vulgar exercise, and it comes close to a pornographic line of questioning.”

Liberal Democrat MP Julian Huppert, who sits on the Home Affairs Select Committee, says there has been “a total inefficiency and a complete lack of control in dealing with asylum cases for years. We have been given incorrect figures and people have been left languishing in the system for huge amounts of time – over ten years in some cases waiting for decisions to be made.”

The Home Office refused to comment on individual cases, but did add: “The UK has a proud history of granting asylum to those who need it and we do not remove anyone at risk of persecution because of their sexuality. We provide dedicated guidance and training to those dealing with such asylum claims, and all applications are carefully considered in line with our international obligations.”

The names of some people have been changed to protect their identities.

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