By Paul Canning
A Ugandan lesbian, known at this stage only as 'SB', has won an asylum court case in the High Court against Home Office arguments that she could safely be deported.
The 24 February case before Mr Justice Hickinbottom, which will now go to judicial review, featured strong evidence of the persecution of lesbians in Uganda. The government's defence highlights how the UK asylum system will make every effort including breaking and twisting both rules and evidence to deport lesbians and gays.
It remains to be seen whether the Home Secretary, Alan Johnson, will continue to insist that it is safe to return her to Uganda.
Fleeing from Uganda
SB had been briefly detained by police for her lesbianism in September 2003 in Mukono, just west of Kampala (which has ties to Guildford), and again in Kampala in May 2004. Released, she was put on bail but because she had not complied with their reporting conditions she was put on a 'wanted list'.
That November she traveled on a visitor visa to the UK. She overstayed the visa and was discovered during an immigration sweep. Found to have a false Ugandan passport she was arrested and sentenced to 12 months’ imprisonment.
Many LGBT asylum seekers do not immediately claim asylum for a variety of reasons, including shame or simply a lack of awareness that they can claim asylum. False papers are often used to escape oppression but lead to criminal charges.
In June 2008, SB claimed asylum. This was refused point blank by the Home Office: they did not believe either that she was a lesbian or that she had been detained by police.
She appealed before an immigration judge in March 2009 but asylum was again refused on the basis that "there was no evidence that she was at risk of ill-treatment of such severity [once deported] as to amount to persecution."
That judge agreed with the Home Office's case that there was only ever one case of persecution of lesbians in Uganda, which had involved the high profile chair of a gay group. Because, the judge said, SB was "a very discreet person, and had conducted her sexual relationships discreetly in the past - and would continue to" she could be safely deported.
However the judge did accept the fact that she was a lesbian, that she had been detained by the police and ran the risk of being detained again.
She filed another appeal in July 2009 but on 2 November a caseworker issued an order to seize, detain and then deport her.
On 5 November further representations were made which included far more detailed and up-to-date evidence on the position of lesbians and gays in Uganda. But these were again rejected out of hand by the Home Office who plowed on with their drive for deportation.
Justice Hickinbottom described this decision as "irrational".
The evidence Hickinbottom had before him came from Dr Michael Jennings of The School of Oriental and African Studies, University of London, Paul Dillane from Amnesty International UK, who works with the AI Office in Kampala, and Dr Chris Dolan, Director of the Refugee Law Project in Uganda, a community project of the Faculty of Law, Makere University.
Dolan provided over 350 pages of recent background material, including work on the treatment of returnees, particularly at (Kampala's) Entebbe Airport.
This showed that there is a check on failed asylum seeker returnees by Ugandan police and that, given the current hostile attitude towards homosexuality, it would be more difficult for SB to bribe her way out of detention (as John Bosco, who was returned by the Home Office, was forced to do), and it's likely that any bribe would be for a considerable sum.
Amnesty International said that her history of arrest and detention would mean she would be “at real risk of harm should she be forcibly returned." Evidence presented of the abuse suffered by lesbians in Ugandan police detention ran the gamut from touching of intimate parts to the threat of being put into a male cell with the consequent risk of rape.
Prossy Kazzoza, who finally won UK asylum in 2008, was marched naked to a Ugandan police station and subjected to horrific sexual attacks and physical torture after she was discovered by her family. She escaped to the UK after her family bribed the guards to release her — as they wanted to deal with their family shame by having Prossy killed.
The original immigration judge for Prossy's case believed her claim to having been raped and tortured but felt it would be safe to return her to a different part of Uganda.
The evidence Hickinbottom had showed that identified gay men and lesbians can be the subject of ill-treatment, by both the public in terms of lynching and 'corrective rape' and by the police — without them being otherwise 'high profile'. (Thus arguing against the Home Office claims that only one lesbian who was a group leader has ever been persecuted in Uganda).
Because SB is unmarried and without children, the evidence showed, it would - apart from the police attentions - be extremely difficult for her to maintain the sort of 'discretion' which Home Office policy dictates should allow for 'safe' deportation for lesbians and gays even to countries where persecution is known to occur (for example Iran).
Given this evidence - much of which post-dates the determination of Immigration Judge Grimmett last year - it is perhaps surprising that the Secretary of State took the view that this material, taken with the material the Claimant previously relied upon, was not such as to give the Claimant any chance at all of succeeding with her new asylum claim before a tribunal.
Never mind the evidence
All of this was blithely dismissed by the Home Office representative who wanted deportation because he continued to claim that evidence "lacked specific examples of ill-treatment of identified gay men and lesbians in Uganda". Home Office minister Alan Johnston's representative claimed:
• that the ill-treatment of gay men in Uganda was limited to discriminatory legislation that was not enforced
• SB would only be at risk of arrest in Kampala because the record of her bail infringement was only kept there (evidence showed otherwise, Ugandan police do share the 'wanted list')
• she could internally relocate and live discreetly, as a lesbian, without fear of persecution
• even if arrested in Kampala, she would not face the risk of persecution because the harassment she suffered at the hands of the police when she was arrested in 2003 and 2004 was not sufficiently severe to amount to persecution
• there was evidence of only one incident in which lesbians had suffered ill-treatment during detention
All this is in line with the Home Office country-specific operational guidance notes available to case workers and judges on Uganda - it makes no mention of lesbians. (A series of reports - including one last month - have decried the quality of these reports.)
Refusing the Home Office and allowing the judicial review, Hickinbottom wryly noted that the presentation of the previous judgment once again by Alan Johnston's representative as an argument for deportation - despite all the subsequently available evidence of persecution of lesbians in Uganda - could not be used as "a trump card for the Secretary of State".
He also decided that the brief detention of SB on the orders of a case worker in November was unlawful. He said a number of mistakes were made by the case worker, such as falsely claiming that SB was liable to abscond, and that an Judge's order saying she could not be deported due to a judicial review and must be released was ignored.
It is not over for SB. The Home Office could still fight the case at its next stage. It can keep trying to pull out trump cards rather than live up to its solemn obligations under international laws which the UK is signed up to.
Other parts of the British government are engaged with critiquing the same 'crack down' on Ugandan lesbians and gays that's detailed in evidence presented in SB's case. Ministers have made statements. The Foreign Office is "concerned". The Prime Minister has pulled aside the Ugandan president and told him to stop.
Perhaps those ministers who tell off Uganda for its attitude to Ugandan lesbians could have a quiet word with their fellow minister, Alan Johnson, about his own treatment of Ugandan lesbians?
[Court's decision published in the post]