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UPDATE: see proper post here with analysis.

Sorry for the headline, which is in fact an accurate description of what has happened. Although from the half of the judgment I’ve managed to read so far, their Lordships prefer to refer to ‘practising homosexuals’. A bit like the apocryphal ‘popular beat combo’, I guess.

More to follow when I have time, but the judgment is here and the press release here. Bizarrely, I’ve seen a quote from Thersea May welcoming the judgment as a vindication of the coalition government’s stance. I had not heard that they attempted to withdraw their refusals and they did seem to argue the case on the day, so that looks pretty dishonest at first appearances.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


23 Responses

  1. Lord Rogers went out on a lovely little limb to illustrate his hip credentials about gay men’s rights to “go to Kylie concerts, drink exotically coloured cocktails and talk about boys.” The legal equivalent of watching your dad dancing at a wedding.

    Overall I was very impressed with the judgment – although cynically, I’m sure the only effect will be that UKBA redraft their standard refusal letter from “go away and be discreet” to “we don’t believe you’re gay and you can’t prove it.”

    1. Holidays do have to come to an end, sadly, and I was back at work today. Still lots of catching up to do, though.

  2. The other members of that panel were probably thinking ‘Kylie who?’!

    The Home Ofice probably will say ‘we don’t believe you’re gay and you can’t prove it’. But I guess it works both ways; an asylum seeker can say ‘I am gay [when he’s not] and you can’t prove I’m not’!

    IJs have a tough job on their hands in these types of cases.

    1. I really can’t imagine that happening so much. There are a million other false claims a claimant can make, if they’re so minded, which wouldn’t involve claiming a history which would be enormously stigmatised.

    2. There is of course the Iranian ‘christian’ who forgot to mention to his pastor attending court what he claimed the previous time he claimed asylum…. It was all going so well until they started going on about how honest he was.

      Counsels face was a picture when I started with “So about your homosexuality….”

      In 8 years I have seen a lot of people pretending to be gay….like the 2 month pregnant lesbian who got drunk one night and ‘forgot’ she liked girls. The judge was curious in his determination as to why the UKBA representative didn’t question this….but if they weren’t going to challenge it it wasnt his job.

    3. I have to say this all makes me rather uneasy. It sounds a lot like an advocate giving evidence, in effect, and I wouldn’t like to think any advocate is simply relying on gut instinct for something so intimate, potentially leading to an effective ‘outing’ in court. It all sounds a bit gung ho.

    4. Freemovement,

      I only did this after a full evaluation of the evidence,and I admit I might have sensationalised it a bit. But as you said in your latest post this is a blog so not completely serious.

      There was no outing of this man because he was not gay, he was unfortunately trying a trick that seems common with Iranians and other certain nationalies of climbing what is most likely to get them status. Such as how all the Eritrean Jehovahs Witneses were suddenly replaced by pentecostalists when the case law changed.

      In any case the previous determination finding him to be a liar was in the home office bundle so the issue was before the court. The fact that someone who claimed to be homosexual had joined a homophobic church was not particularly believable.

      I relied on the evidence before me, asked a couple of questions in cross before ht ‘big’ one and counsel, who knows me and knows I have no compunction in asking questions others might be embarrassed to, had every opportunity to stop me had he seen where I was going.

      He did object, but as the judge pointed out the determination was in evidence beforentge court so I was perfectly able to ask the questions I had.

      I have always been aware of the fact that I have to be careful not to give evidence, so rether use my knowledge and experience to allow me to frame my cross in such a manner that it takes advantage of that, and I always have objective evidence to hand in case an objection is made.

      This was the reason I carried ruined a copy of the manual for an AK47 with me when questioning an appellant who claimed to be a trained soldier on the positioning and operation of certain parts of the weapon. Many IJs are aware of the fact that I used to be a platoon commander in the TA when I was at University and have the technical knowledge to back up my questioning, and they are always careful to warn me about getting close to giving evidence to let opposing counsel know they are paying attention.

      This is the problem working in the UKBA as a Presenting Officer, you commonly get a file which is often falling apart and disorganised maybe a day before the hearing after the opportunity to submit additional evidence has passed, so you are at an immediate disadvantage compared to the other side.

      If you have the time (remembering a PO is not paid by the hour and gettin overtime to do what is seen as your normal job is impossible) and the commitment you can put a supplementary bundle together and try to get it before the court and I often did this, with a skeleton argument or written submissions attactched.

      I have always been praised when I do this and wish like counsel I had had the time and resources to do this on every case I was working on. But when you have to prepare between 2 and 12 cases the day before you go into court, as well as all the post-case work from the previous day, and the you are possibly in court 2 days in a row, it is sometimes hard to be bothered.

      POs do this and then have to put up with judges and opposing representatives attacking them for not trying harder, is it any surprise that sometimes we might get arsey or become intemperate. There are some members of the bar who are lucky not to have been punched by a HOPO, but then that’s why we have our own space away from everyone else so that we can vent in private. It is also why many people will get told to go away should they disturb us in the PO’s room ( I have had to and seen others physically eject a presumptuous baby barrister who has walked into the room more than once).

      We do all this for a pittance in comparison to what those around us are paid (I was on £27999 after 8 years), the people who get the bonuses are not the POs who perform the best in court as that is not how the system is structured.
      So despite being praised by IJs and SIJs for being “an exceptionally skilled PO”, for “acting with conspicuous fairness” or for being “the first person in the home office to take the time to get a handle on this case ” on top of all the extra duties I did that some who got bonuses didn’t, I only ever took home my basic pay and a pension that was always under attack.

      On top of all this we are faced with seeing resources taken away from the POUs and redistributed to more important areas like the new asylum model, so we end up with a situation like last week where in I think 27 courts at Taylor House there were 2 HOPOS.

      So to those of you who enjoy attacking HOPOs please bear this in mind before you next attack a PO for not trying hard enough.

      Not that it doesn’t mean that there aren’t some bloody awful HOPOs out there but most are trying hard to work within an organization which is broken and disfunctional and run by people without the ability to fix it.

      It is farcical that the people who are making the evaluation of where the cuts should come from in the UKBA are the people who should be cut themselves. As one Law Lord commented in a decision the situation within the UKBA is nothing if not Kafkaesque.

      So thank you Messers Blair, Brown, Straw, Reid, etc we had a system of representation at the Tribunals that was almost starting to work and you allowed some incompetent senior civvil servants pull it apart so they could have examples of ‘change management’ when they go for their next promotion.

  3. Thank goodness that is finally over it’s been a long time coming, when I was instructiing Treasury Solicitors as Senior Iran HOPO on HJ in the past I was terrified that we would never get to thie stage, which as a gay woman made my role even more distasteful particularly as my efforts to change things from the inside had little effect.

    Personally I think what Lord Rogers said was sweet, it is clear he is angling for some backstage passes for her next concert, why else the obvious product placement.

    When the most senior judges in the country feel able to express these opinions that says a lot about how far the UK has come….. maybe next year we will have them all invited onto the main stage at pride to allow the LGBT people of the UK to thank them.

    I couldn’t be any happier about this and have to say the Supreme Court Justices have more than earned the respect

    Now it’s down to the hard task of testing peoples sexuality, I am terrified to see what sort of questions the interviewers come up with….. Who is Dorothy?….. Is Lady Gaga a man?….. And of course following on from Lord Rodgers comments any man who can’t describe what Kylie was wearing at her last concert in great details or at least provide his ticket stubs will be disbelieved.

    I was one of the few people in the UKBA who had credibility when I challenged someone’s sexuality as I was perfectly willing to say to a judge when I knew someone was gay and when they were trying it on. The fact I was openly gay helped a bit also, my ‘gaydar’ being honed by my experience working as a HOPO. But the majority of people in the UKBA do not have the knowledge and confidence to make such an assessment properly, and they decided to give me a nice big lump of money rather than make the effort to keep me in the organisation.

    So I guess I’ll use this thread to come out as it seems an apt place to do so as I know some people who know me read this blog.

    My name is Kay Foulkes and I am a recovering Presenting Officer.

    1. Kay,

      Illuminating post. I agree as well the decision is fantastic, but am concerned that the UKBA and IJs in turn will just close the door by applying an even more arbitrary and artificial test on what it is to be gay.

      By the way, my undersatanding is that Dannii Minogue is more popular in the gay community than Kylie (having once or twice been to the Astoria and seen G.A.Y posters).

    2. Mike,

      I can point you to at least one gay male admin assistant at my old unit who is a huge Kylie fan( even he admits it is scary).

      Personally I think Lord Rodgers might possibly have a lot more experience of the gay scene than we think.

      In a purely professional research role of course. :D

    3. I just realised they also need tests for lesbians.

      Comfy shoes?
      Complete works of Germaine Greer?

      We have all seen similarly bizarre comments in asylum decision letters, unfortunately it was my job to try and justify them.

    4. Interesting post Kay – did IJs accept your gaydar? I’m on the other side of the table & so I can’t ask them to accept my own!!

      I tried to explain gaydar to a very bemused IJ in Manchester recently, and I’m pondering the inclusion of “gold star lesbian” in a forthcoming skeleton…

    5. One of our DIJs was happy for me to declare a potential conflict of interest when cross examining a Sudanese man as I didn’t want to be seen as giving evidence.

      That said this is the same case I used a Peter Verney report to convince the Judge that everything was fine in Darfur and that if someone had problems they were perfectly ok in Khartoum.

      So My gaydar is also to blame for all the cases that came from the resulting change in HO policy!!

      Another case as soon as I saw the appellant outside court I knew he was gay, I also spotted his clearly married older boyfriend hanging around. Counsel didn’t believe me when I explained what was going on and who his appellants ‘friend’ was but was impressed when the evidence backed up everything I had said.

      As to how to approach one of these cases, I have some ideas on how to structure a case so as to take advantage of the new ruling if you ever wanted to discuss it?

      Also you might as well take advantage of the fact that most people on the UKBA side are to embarrassed or lacking in knowledge to do a real in depth examination of someone’s sexuality.

      Me….I had no boundaries in court as several ill looking barristers, judges and interpreters can testify ;)

  4. Oh I also forgot to mention something, I was ‘Jody’ in the stonewall report….but as I no Longer work for the UKBA I can be open about that now.

  5. Kay, if you’d like to write about your experience for LGBT Asylum News you’d be more than welcome! I have been trying to find out just what the LGBT staff group in the Home Office has actually achieved vis LGBT asylum but no-one’s talking to me, though with their huge Pride float they seem to want to flaunt ‘achievement’.

    I am equally cynical about the Home Office’s reaction and very mindful that a far more complete package of demands for change is needed than seems to be the ask at present from those asking. There is also a real possibility of complacency because the decision content is so good – it has implications way beyond just UK LGBT asylum seekers.

    As for why he included Kylie … I too have heard rumours. But I like the one about it being a deliberate provocation to the right-wing press – it has ended up after all proving the point about how they use stuff out of context.

    1. I’d be up for it but would need to get someone else to read over it and make sure I don’t say anything that could adversely affect me either legally or in relation to my potentially wonderful new career…. But then I have never been shy of expressing my views, even in court ;)

      You mean Spectrum? I was actually on the executive committee for a while before leaving due to ‘differences.’ you won’t get them to speak to you unless they have approval form the UKBA board or ministers, but given the Home Secretarys comments maybe now Is the time to try. You will note that despite the close relationship Spectrum has with stonewall there were no quotes from them in the report, so don’t hold out to much hope.

      People seem to forget that judges have a sense of humour too, I am sure there are others in here who have struggled to keep a straight face in court or had to ask for a toilet break because of something a judge has said.

      At the moment I have to say Lord Rodgers is my hero, I can’t wait to see what he comes up with next.

    2. Hee. Agree with Rodgers. He has actually set the tabloids up for a potentially PCC ruling because the coverage literally was ‘inaccurate, misleading or distorted information’, Editor’s Code 1 i}. ‘Potential’ because it’s the PCC of course …

      Of course you can contribute anonymously and in such a way that nothing identifiable could damage you – as much as that’s possible, let’s talk. I am as you might imagine used to dealing with this need for cover with campaigns for LGBT asylum seekers!

      Yes, I do mean Spectrum. There was a piece in some gay media outlet about their ‘behind the scenes’ work so I emailed them to find out what *exactly it was. No response.

      I’ve heard lots about discreet lobbying. What exactly it has achieved I’ve yet to hear fleshed out.

      I think your contribution could be extremely useful because, as I said before, change which actually helps people is about far more than this decision and is a lot more complicated than just ‘awareness raising’ and ‘more training’. I think you may be add some illumination here Kay.

  6. Kay, your openness is appreciated and welcome, but I’m concerned that you are not necessarily casting yourself in a very flattering light. Cross examination of a suspected gay (isn’t just writing that enough to sound McCarthyite?) on the basis of your own ‘gaydar’ and bringing an old AK-47 manual to court to use for cross examination make you sound pretty fanatical, frankly. Suggesting that a Law Lord is gay on the basis of a light-hearted deployment of a stereotype seems a tad… reckless. A lot of what you write comes across as self justificatory.

    While I’m aware I may well cause myself problems through this blog, I’d urge others to be cautious.

    On an entirely separate subject, you also seem to be unaware of the constraints of running cases under legal aid. We certainly do not have the time and resources you refer to! RMJ just went under with a loss of 350 jobs because they DID spend a long time preparing their cases and the fixed fee system simply does not cater for that.

    1. Sorry I will fully admit I get a bit over excited at times, the fact that having been out of court for almost a year I now may have the opportunity to be back in when I had given up on the option, coupled with various other issues have put me in a really good mood, and not being in somewhere as constrained as a court may make me say more than I might normally and not maybe as clearly thought out or expressed.

      I promise that I have always approached my cases with respect and as impartial a viewpoint as I can, something that has been commented on by those who have appeared against me or had me appear before them.

      I always take a holistic view and make sure that anything I ask can if needed be backed up by objective evidence, the ak47 manual only ever came out in cases where having evaluated the evidence in prep I had serious concerns about the appellants knowledge and wanted to test it. Sometimes this worked out for the appellant as it cleared up the only area of doubt in there case and adde to their credibility, for others it showed they were clearly embellishing their claims. The manual was only there for the judge and opposing counsel to see that the appellant could not accurately describe the rifle they claimed to have been trained to use, and only in cases where someone claimed to be a trained professional soldier rather than a mujahid or African fighter.

      I of course do not think that Lord Rodgers is gay nor anyone else, it was an ill thought out comment that if I was able to edit I would have removed but having written it I am stuck with it and can only apologise.

      Maybe when I am not I’ll and stuck at home on bored on enforced bed rest I might come across a lot better.

      Again I can only apologise for getting carried away.