Wednesday, July 7, 2010

Good news for LGBTs seeking asylum in UK

From the BBC

Gay asylum seekers from Iran and Cameroon win appeal

Wednesday, 7 July 2010 12:07 UK

Two gay men who said they faced persecution in their home countries have the right to asylum in the UK, the Supreme Court has ruled. The panel of judges said it had agreed "unanimously" to allow the appeals from the men, from Cameroon and Iran.
They had earlier been refused asylum on the grounds they could hide their sexuality by behaving discreetly. Home Secretary Theresa May said the judgement vindicated the coalition government's stance. Under the previous government the Home Office had contested the case, saying it had taken sexuality into account when making its decisions.

*Fundamental right*
The five Supreme Court justices were asked to decide whether a gay applicant could be refused asylum on the grounds that he could avoid ill treatment by concealing his sexuality. Previous attempts by the men to stay in the UK had been rejected by judges at the Court of Appeal who ruled that if the men could conceal their sexuality, their situation could have been regarded as "reasonably tolerable". But the applicants said this tolerability test was contrary to the Refugee Convention, to which the UK is a party. The Supreme Court agreed and ruled that the men's cases could be reconsidered. Lord Hope, who read out the judgement, said: "To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny his fundamental right to be who he is. "Homosexuals are as much entitled to freedom of association with others who are of the same sexual orientation as people who are straight."

The court said it would be passing detailed guidance to the lower courts about how to treat such cases in the future.
The applicant from Cameroon, who is only identified as HT, had been told he should relocate elsewhere in his country and be "more discreet" in future. He had been attacked by an angry mob at home after being seen kissing his partner. He has been fighting removal from the UK for the past four years. "Some people stopped me and said 'we know you are a gay man'," HT earlier told the BBC. "I cannot go back and hide who I am or lie about my sexuality."

The other application was from a 31-year-old Iranian gay man, who was attacked and expelled from school when his homosexuality was discovered. Like HT, he had been told he could be "reasonably expected to tolerate" conditions back home that would require him to be discreet and avoid persecution. Punishment for homosexual acts ranges from public flogging to execution in Iran, and in Cameroon jail sentences for homosexuality range from six months to five years.

= = = = Analysis from the BBC = = =


Clive Coleman, / BBC News

Today's decision marks a complete change in the approach that will be taken by tribunals and courts to applications for asylum by gay people. The Supreme Court has unanimously and unequivocally demolished the previous approach, whereby it was acceptable to return gay asylum seekers if it was considered that by being discreet about their sexuality, they could lead a life that was "reasonably tolerable".

The Supreme Court has made clear that to compel a homosexual person to pretend that their sexuality does not exist, or to require them to suppress the manifestation of it, is to deny them their fundamental identity. Gay people should be entitled to the same rights of freedom of association and expression as straight people.

All future applications in the UK, which relate to countries that sponsor or condone the persecution of homosexuals, will have to apply the Supreme Court's guidance.


IT said...

One would like to think our courts would also read this, and think of the applicability of strict scrutiny.

I am confident that they will not, however, and will continue to enable the mindless bigotry and heterosexism.

In fact, I expect it only to get worse in this country--to the extent i wonder when Americans from some red regions of the US will start going to the UK to ask for asylum.

JCF said...

I wish the US SC would take note. [As far as the UK goes, I would have thought the asylum of Davis Mac Iyalla in 2008 had set a precedent, if there wasn't one already?]