NO SAFE PLACE

Xav Judd looks at the plight of LGBT asylum seekers…

According to the UK Border Agency’s (UKBA) website, “The UK has a proud tradition of providing a place of safety for genuine refugees. However, we are determined to refuse protection to those who do not need it, and will take steps to remove those who are found to have made false claims.”

A statement, in itself, which seems just and simple enough and does not appear to contradict the European Convention on Human Rights, which prevents us from returning anyone to their nation if there is a substantial chance they will be subjected to torture, or inhumane or degrading treatment.

Nonetheless, a few weeks ago I attended an event where the UKBA and a few others were “in conversation” regarding LGBT asylum. Speakers included Bill Brandon, Deputy Director for asylum, John Manuell, who is in charge of the Immigration and Asylum hearing centre at Sutton and Ruth Hunt, representing Stonewall.

Unfortunately, what transpired during this meeting highlighted the various problems with current migration protocols.

Before I arrived at the mini-conference, I did not know so much about immigration or the related, but much smaller – in sheer numbers anyway – issue of asylum. What I had gleaned, though, was just how much the tabloid press had been stoking-up the subject.

For example, in a Daily Mail headline from November last year the paper had reported that “White Britons will be a minority by 2066 if immigration continues at the current rate.” Meanwhile, seven months earlier the Sun told us about “Voter’s anger over immigration”.

In such a fervid climate and with the ongoing hackgate scandal showing what depths our country’s body politic will plummet to court the media, it is no surprise that Labour and the Conservatives want to be seen as tough on immigration.

Indeed, earlier in the year, Ed Miliband let it be known that his party “got it wrong” in respect of this matter and in February 2010, David Cameron even appeared on the front of flyers saying “the floodgates had been opened to mass immigration”.

One can posit if such an unsympathetic and unbending strategy is their parties’ priority rather than equitableness with regards to asylum.

Therefore, it is no surprise that Stonewall’s 2010 in-depth report No Going Back – Lesbian and gay people and the asylum system stated, “The treatment of one group of asylum seekers is materially less fair than that of others simply on the grounds of their sexual orientation.”

Figures from the UK and Immigration Group’s 2010 annual statement back up this suspicion: between 2005 -2009 73% of asylum claims were rejected at the first decision stage; for LGBT cases in 2009, it was significantly higher at 98%.

You might wonder why it is of such vital importance for some people to claim asylum overseas. Distressingly, homosexuality is still illegal in over 80 member states of the United Nations, and in several of them it can result in deportation, flogging, or lifetime imprisonment.

Countries such as Mauritania and Saudi Arabia will even execute us, just for being who we are.

Some countries such as Mauritania and Saudi Arabia will even execute us, just for being who we are. But it is not just the government that gay people fear in these places. Often, they can face severe persecution and torture from sections of their own community, if their secret is discovered.

At the outset of the conference, Bill admitted that there had been and still were various problems with the British asylum system. One early point discussed was the quandary of the initial screening process – a fuller evaluation of a person’s right to stay follows afterwards.

Initially, those seeking asylum can either apply at their port of entry, or in Croydon’s asylum screening unit at Lunar House. Here, they face a basic interview to ascertain who they are and the country they have left.

Then, a reason has to be given as to why that individual is making an application. At this juncture, they are expected to open-up and disclose that they are fleeing due to their sexuality.

This is in direct contrast to some countries such as the Netherlands and Sweden where claimants are given the benefit of the doubt about their orientation. This is important because it can be extremely difficult for an asylum seeker to admit their preferences.

They are in an alien environment; may not even recognize or have accepted their orientation; could be deeply ashamed of who they are and may fear authority figures especially if they were persecuted back home etc.

Indeed, as panellist Sarah Humphreys from ELOP, a holistic and gay centre in London, pointed out they might actually be suffering from Post Traumatic Stress Disorder if they’d experienced severe abuse like rape.

Despite such factors, if a claimant does not reveal their sexuality at first instance it will probably count against them later on in respect of their wish to stay. Added to which, an asylum seeker must apply for sanctuary as soon as they possibly can, or this can also prejudice their case.

But this might not be the first thing on their mind when they arrive. Or, maybe, they do not even know if asylum exists or what grounds to appeal for it in their new country.

“I don’t mind your being killed, but I object to your being taken prisoner”, Lord Kitchener once told the Prince of Wales during the Great War.

Frighteningly, it is generally accepted that spending time in an asylum detention camp is akin to being incarcerated, if not in some cases, a fate almost worse than death, “The people there bullied me and made my life hell…I actually wanted to die”, a Nigerian asylum seeker, who wishes to remain anonymous, told me at the conference.

Certainly, as in his example it is unbelievable that a law-abiding citizen, who has never done anything wrong, can be put in such surroundings. And, what if as in many instances, they are ‘locked-up’ with people from their own country or community who are homophobic.

As in the initial evaluation and for many of the reasons already mentioned, gay claimants can often be reticent when talking about their sexuality during the full screening process.

Lamentably, their best chance of being able to remain here is to form some sort of rapport with their caseworker. Otherwise, as Robert, a UKBA caseworker opines, it is hard to get them to be “open and honest”.

Of course, if an applicant does not disclose all of the relevant or vital facts, it makes them much less likely to be successful. What undoubtedly hinders this process is that UKBA staff admit that they receive no specific training or guidance on how to interview gay applications and often lack confidence where sexual orientation is a key element (No Going Back).

Peter Tatchell, the veteran gay rights campaigner, asserts: “Asylum staff, translators, barristers and adjudicators ought to receive obligatory sexual orientation and transgender awareness training. They currently receive race and gender training but no training at all on sexual orientation and gender identity issues. As a result, they often make stereotyped assumptions: that a feminine woman can’t be a lesbian or that a masculine man cannot be gay. They sometimes rule that a person who has been married must be faking their homosexuality.”

Furthermore, Peter continues: “Home Office and asylum staff who have religious or other objections to same-sex relations should be required to exclude themselves from handling LGBT asylum claims. Currently, homophobic Home Office officials are allowed to deal with LGBT asylum seekers and there is some evidence that they make biased, anti-gay judgements; being more likely to order detention and fast-tracking and taking a more sceptical, even hostile, attitude towards refugee applications by LGBTs.

Likewise, Home Office-employed interpreters often come from the homophobic culture that an LGBT refugee has fled and they share the same homophobia. Some are clearly uncomfortable with, or bigoted regarding, LGBT issues. Anecdotal evidence indicates that their translations are consequently partial and inaccurate. All translators should be required to undertake a test designed to ascertain their accuracy and impartiality when translating for LGBT asylum claimants, and only those who pass this test should be permitted to translate in LGBT cases.”

As with any component of government – it is part of the Home Office – the UK Border Agency is under pressure to get results. This, plus a heavy caseload and the intricate nature of LGBT actions, means they are seldom apportioned adequate time.

This can lead to poor decisions, “The temptation is to refuse and let a judge decide” (Sarah, UKBA caseworker). In fact, some applicants whose proceedings are meant to be straight-forward are even fast-tracked – a method where the whole appeal can be dealt with in its entirety, in two weeks. Such an inadequate procedure only leads to more mistakes.

However, it is paramount that this process is corrected. As one of the panellists pointed out, some asylum seekers have stated they would prefer to kill themselves then be returned to their country of origin.

 

Of course, any system is open to abuse and, regrettably, there are always people willing to take advantage. Nonetheless, this does not mean that bone fide claims should be prejudiced by bogus ones.

It may seem like a godsend that if a person is refused asylum by the Home Office, they have another chance to appeal – before a judge in the First Tier Tribunal (Immigration and Asylum Chamber).

Notwithstanding, such adjudicators are almost exclusively white, upper class, heterosexual gentleman who have received a privileged education. Consequently, they are often diabolically out-of-touch with society in general, and in particular with the LGBT community.

And it shows; members of the panel drew our attention to some of the absurd questions arbiters had asked asylum seekers to determine whether they were gay, “Do you read Oscar Wilde?” and “Have you listened to Kylie Minogue?” and so on and so forth.

Even more insensitively others on the Bench have tried to ascertain a gay asylum seeker’s orientation by asking if they commit buggery. Indeed, in 2005, Judge Freeman repeatedly used this term when quizzing a gay Iranian, as well as referring to their ‘unseemly activity’ inter alia.

In such an adversarial environment, where a client might be emotionally undermined, this could lead them to make errors or clam up entirely.

Peter contends that another major area of disquiet with regards to the asylum system concerns a financial aspect: “Legal aid funding for all asylum claims – including LGBT ones – needs to be substantially increased. Existing funding levels are woefully inadequate. Government cuts in legal aid funding for asylum applications mean that most solicitors acting for LGBT refugees are unable to present properly prepared submissions at asylum hearings. Solicitors don’t get paid enough to arrange the necessary witness and police statements, medical reports, affidavits from expert witnesses and human rights groups and other vital corroborative evidence.”

Despite some of the aforementioned problems with the asylum system, there was something of a breakthrough last July. Up until then, the Home Office had a ridiculous assertion that it was “reasonable and tolerable” that LGBT claimants fleeing from persecution could be returned home to their country of origin, if they behaved “discreetly”.

This, the branch of government contended, meant they could evade oppression. However, a Supreme Court ruling involving two cases of gay men (HJ from Iran) and HT (from Cameroon) seeking sanctuary here, said that it was incorrect that LGBT people should be returned home under such conditions.

But what about the 21 recommendations in Stonewall’s No Going Back report? How many of these have been addressed?

Ruth said that the UKBA did look into many of the recommendations. One success was with regards to Country of Origin Information (COI). Decision-makers in the UKBA are supposed to use this (along with an Operational Guidance Note) to determine what it is like in the nation an asylum seeker has fled from and if it is safe for them to return.

Albeit, in the past, it was not up-to-date, nor did it offer a full enough understanding of the situation back home, etc. But the UKBA said this shortcoming will be addressed.

They have also intimated that their staff will receive better training in relation to LGBT cases. As well as this, according to Ruth, the judiciary was very responsive and allowed her to have an audience with them.

Another move in the right direction is that the UK Border Agency has started collating data on the numbers of asylum claims based on sexual orientation. Nevertheless, in respect of Stonewalls’ report, many recommendations have not been adhered to, for instance that LGBT people should not be fast tracked.

One can say then, that although the system is gradually improving, it is far from perfect. Let’s hope that progress continues to be made – we don’t expect special treatment, just equal treatment.

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