An interesting judgment has been handed down today: NR (Jamaica) v SSHD [2009] EWCA Civ 856. It touches on a thorny issue on which I have to say some immigration judges have not exactly covered themselves with glory. Sadly, the Court of Appeal fails to name the responsible senior immigration judges in this case.

One of my very first asylum appeals as an advocate was back in 2001, when I was representing a Kenyan professional who said he was gay. He claimed that he had experienced some very unpleasant difficulties as a consequence of being out-ed. There was absolutely no reason to think that he was lying, either about his sexuality or his account, which was completely consistent with the available country information. However, the adjudicator found that he wasn’t really gay, he was just making it up. What was he supposed to do, I thought? Pander to stereotype and turn up in a tutu? How on earth is a man who has recently arrived in the UK supposed to prove he is gay, and more importantly how bizarre and, frankly, rude and unpleasant is it that his word for it is doubted? No-one would doubt it if he had claimed to be heterosexual with only his own word for it. I think it is a classic example of the culture of disbelief.

Well, some senior immigration judges followed a similar approach in NR (Jamaica). Get this:

We find that on coming to London, as a teenager [the Appellant] experimented with different types of sexual identity. She then found herself imprisoned in all-female institutions. The Appellant told Renee Cohen [the psychologist] that while in prison she had become more socially confident and had been sexually active and that she had been lost and frightened in the years between leaving Jamaica and being imprisoned: see the second and third paragraphs of page 6 of her report. We find that as a healthy, healthy, energetic and engaged young woman in such institutions she had and took the opportunity to continue her experimentations with her sexual identity: indeed, there was no alternative except celibacy.

So far as Angela is concerned we accept what she says about how she sees her relationship with the Appellant. We note that while detained the Appellant became a trained prison listener and increased her self-confidence and we find the Appellant was and is well able to manipulate her relationship with Angela. Consequently, we find the evidence on the Appellant’s side shows that so far as she is concerned her relationship with Angela is not genuine. We are led to the conclusion she is using Angela as a means of bolstering her claim for international surrogate protection.

Basically, the tribunal conclude that a girl with a history of four years of lesbian relationships is actually just ‘experimenting’, isn’t really a lesbian at all and is just using her lesbian relationships to manipulate the asylum system to get status. The subtext, of course, is that lesbianism is abnormal. It might also be said that the senior immigration judges here had in mind some sort of scheming, lying lesbian stereotype – it is all deviant, immoral behaviour as far as they are concerned.

Unsurprisingly, the Court of Appeal has sent the case back to the tribunal to have another go.

A well-known and rather zealous Presenting Officer at Taylor House also gets a mention in the judgment. On the day of the hearing, with no prior notice, he withdrew the previous concessions made in the case (including the refusal letter) that the Appellant was a lesbian. Bizarrely, he suggested one of his colleagues has been under duress when making the concession and that the concession was not in the refusal letter, which in fact it was. It would appear he sought to argue that she wasn’t really a lesbian at all. This surely would have effectively prevented her from producing evidence that she was a lesbian, as she and her reps thought the issue was not being argued until the morning of the hearing.

This kind of last-minute ambushing is not uncommon, and I’ve had a few examples recently of documents being served by the HOPO on the day of the hearing or during the hearing in clear breach of directions, but they have resisted adjournments to enable us to take proper instructions or seek counter-evidence.