Comment: One year on from gay asylum ruling, have things changed?

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One year ago, the Supreme Court unanimously handed down a landmark decision in LGBT human rights.

It said that it was wrong that gays and lesbians fleeing persecution should be forced back because of the Home Office’s argument that it was “reasonably tolerable” that they ‘behave discreetly’. This, the Home Office argued, would mean they’d avoid the persecution they had fled. The two cases they were considering were from the violently anti-gay Iranian theocracy and from the African country of Cameroon, where gays are arrested and imprisoned.

Lord Roger, who passed away last week, famously wrote in his comments about gays and lesbians’ right to “live openly and freely”, comparing the example of a gay man’s right in the UK to go to a Kylie concert, drink exotically coloured cocktails and talk about boys with their female mates to the rights of straight males.

Yet one year on from this major legal shift, many working to support LGBT asylum seekers believe that the situation for them is actually getting worse.

The Supreme Court’s four new rules on how asylum claims should be judged start by asking if a claimant is gay – and it is this point on which many claims are floundering.

This is not always for lack of evidence. UK Border Agency (UKBA) rejection letters I have seen have dismissed up to twelve witness statements as well as other evidence. One woman pictured and named as lesbian in an infamous tabloid newspaper from a dangerous African country is still fighting to stay here.

Most fair-minded people would be amazed at UKBA attitudes to someone’s ‘credibility’ and the lengths some officers go to dismiss claims. The test officers are supposed to apply is “reasonable likelihood”.

Not all officers appear to have this approach. One lawyer, who has successfully won numerous LGBT asylum cases, told me it “depends of the case worker”. But others have “become hardened”, perhaps because the Supreme Court decision has led to more cases coming forward as it gave them hope of being judged fairly.

After the court decision, the UKBA said it would collect data on LGBT asylum but immigration minister Damien Green said earlier this year that this wouldn’t happen because of “disproportionate cost”. So we have no hard facts on which to judge whether the promise made 13 months ago in the coalition government’s agreement to stop removing LGBT asylum seekers “at proven risk of imprisonment, torture or execution” has been met.

Unfortunately, in May, Nick Clegg proudly claimed that his promise had been met. Yet all that has been done is one day’s training for border agents, new written guidance and a session for immigration judges on who lesbians and gays are.

The government has refused to take LGBT cases out of ‘detained fast track’, which is supposed to be for straightforward cases from ‘safe’ countries, despite most LGBT ones not being simple and the places they are fleeing – like Uganda – not being safe. Last week, the government lost a test case for Jamaican lesbians where the Home Office lawyer made many of the same arguments on ‘discretion’ it has been making for years.

As Jamaica is now legally not ‘safe’ for lesbians, neither should be Ghana, Nigeria and Uganda. But don’t expect Mr Green to change the rules without a fight.

Last week, Kenneth Clarke’s department announced a change in how deportation cases are handled, moving them from the High Court to the Immigration Tribunal to ‘save money’. This will, I am told, disproportionately affect LGBT people.

When the UK Lesbian and Gay Immigration Group reviewed 50 cases last year, it found that all bar one was rejected by UKBA. This means asylum seekers are disproportionately reliant on safeguards like review by the High Court because immigration judges “make mistakes”, a lawyer told me. Cases could end up back before the same judge who previously rejected someone or judges are, essentially, to be asked to rule that their mates got it wrong. The lawyer I spoke to believes this move is another marker of how things are getting worse for LGBT asylum seekers.

When Stonewall released its ‘No Going Back’ report in May 2010, it made 21 recommendations because there are a wide range of issues which affect LGBT cases. These include being housed with homophobes or being “dispersed” to some remote town with no LGBT community. Only three have been acted on and we have no evidence – and neither does the government – that anything is actually improving.

According to the front line, the Supreme Court decision has had little impact and my feedback is that for an LGBT individual fleeing persecution, their chances of sanctuary here are more down to luck than design and, if anything, the indications are that they’re getting worse.