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Sexual identity


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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.

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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.


9 Responses

  1. FM

    The “culture of disbelief” in the HO exists in the arena of all relationships.
    eg. my uncle and aunt from Africa had been living and working in the UK for several years. They both applied for ILR. The uncle succeeded and a year later naturalised.
    The Aunt’s application was lost by the HO, her passport turned up on some-one elses file 3 years later, and she was served with deportation notice. She made another application on the long standing basis of her marriage. That application failed because they said she could not prove they were “legally” married. They were married in African culture. Soon after she was taken back to Africa. They were married in the eyes of God and man, but not the law. (Their marriage has now been registered in law in Africa, and she is now back in the UK.)

    For government, law courts, lawyers, politicians, and judges, only the reality of law concerns them. I am reminded of what Lord Falconer said on TV, “The law is the law is the law, and they just have to accept it”. For the rest of us, there is justice, culture, religion, tradition, family, community etc.

    FM – now the bit I disagree with you on:
    “The subtext, of course, is that lesbianism is abnormal”.
    The legal position – Lesbianism is normal (in UK).
    But consider:
    World’s Cultural position – Lesbianism is abnormal.
    Biological position – Lesbianism is unfruitful, therefore unnatural/abnormal.
    Religious position – Lesbianism is forbidden, therefore abnormal.

    The “culture of disbelief” is destructive to family life where it is administered “inaccurately”, which is where HO incompetence has an immoral outcome.

    1. Many, myself included, would disagree with your analysis of sexuality, but this isn’t the place for that discussion. My point is that I would expect or at least hope that immigration judges would know better and would not discriminate against anyone on the basis of sexuality.

    2. Presuppositional Fallacy.

      If that computer hacker came to you, your advice may include to claim asylum in one of the Asian countries signed up to the Hague convention. Their lack of laws on computer hacking and piracy may deem him a victim of western Governmental discrimination.

    3. Your argument is at best odd. Let this rest. You and others may well hold different, entirely relativist views, which is fine. My point is that immigration judges should not discriminate on the basis of sexuality.

  2. I think, from a human rights perspective, allowing a few people who pretend they are gay to get through immigration, while at the same time ensuring that nobody who really is gay and really is suffering persecution, is denied, is successful.

    If judges feel they have the ability to decide a person’s sexual orientation for them, innocent people will be denied the asylum they are entitled to, and it will be based on the prejudiced whims of that particular judge.

    How exactly do you prove that you’re gay? Beyond active sexual relationships? It’s like you said, do you have to show up in a tutu or conform to the major gay stereotypes? A lot of my friends would fail if they had to prove they are gay, some of their friends don’t even believe them! Of course, they live in London, they aren’t suffering at the hands of a rigid, unadaptable state that does not tolerate, or even recognise, the fundamental right to remain the way you are.

  3. Having seen many cases where the tribunal has made similar decisions this is unsurprising, but having also talked to many HOPOs on this issue it is clear that a lot of them find this one of the more difficult parts of their job. (FM – You should be aware though that you have the sympathies of many of those on the other side in particular those of a pink persuasion). How is a HOPO supposed to prove that someone is not gay? It’s not like someone claiming to be a Christian where there are particular things they can be expected to know.

    Any asylum seeker claiming to be gay is immediately starting off on the back foot as there is still a serious undercurrent of homophobia in the UK, people are just better at hiding it these days. Many immigration judges though bring these personal opinions into court, which was clearly demonstrated by Mr Freeman in one of the Iranian cases, making it much harder to succeed in one of these cases than on any number of other different types.

    The position that those who can prove that they are gay pretty much proves that these attitudes are prevalent, the courts finding it is reasonable to say that a gay person can act with discretion if returned back to their country of origin. This is contrary to the position in many political opinion cases and to the finding that someone who is returned home cannot be expected to lie to their countires authorities when returned home, but unfortunately until someone can do something to change the underlying attitudes of the judiciary it is the position we are stuck with.

    I have witnessed a serious lack of imagination in the approach that representatives take in gay cases, rather they just rehash the old arguments ‘stamping their feet’ and telling the judge it is unfair. An example woud be a particular well known homosexual member of the bar who specialises in gay cases does his clients a serious disservice in the pissy attitude he takes towards both HOPOs and IJs. This man is clearly very clever but his arrogance and self righteousness gets in the way of doing the best job for his client, but then this is just the way he is in general (clearly this is just my opinion and not a fact).

    There is a possible tack to take in theses cases that might be successful and which has not been tried yet as far as I am aware, but then I’m not in a position where I could try making this argument.

    The position that the HO takes is ironic when you consider the amount of money it spend supporting its own LGBT staff and that it is the top govt department in the stonewall equality index. Hell, they even had a float at pride this year.

    1. I was interested in the reply, you mention a ‘possible tack to take in these cases that might be successful’ but do not elaborate further – what tack would that be?

      In relation to counsel you mention, what is it about his style of representation that you believe is lacking – purely out of professional interest?

    2. My suggestion would be to take advantage of the informal nature of the tribunal and the more relaxed approach to the type of evidence that can be put forward.

      Use some of the techniques that are used in really good diversity training, get the personal experiences of gay British people put before the judges, many/most of whom have no experience of the gay world (there are only one or two out gay IJs even those who are hold their cards very close to their chests).
      The Judges have no idea of how difficult it is for many people even in a progressive country like the UK to be open about their sexuality, and what it is like for many people to spend their lifes hiding who they are from the world around them.

      Has anyone ever tried suggesting to the tribunal that they go away before making their decision and try to hold a conversation about their partner with someone else without using any gender pronouns or giving any hint as to if they are male or female, this is something that can be incredibly effective, maybe it would help in showing the IJ’s that to ask someone to go back and be discreet about their sexuality (in other words hide it and lie about who you are everyday)is a breach of their article 3 rights or at the very least a disproportionate interference with their family/private life.

      It takes a representative who has the ability to ‘think outside the box’ which unfortunately many seem unable to do so.

      As to counsel in my opinion he takes things to personally and acts as if he is on a crusade to change the world, but instead just ends up p***ing people off.
      His approach can be to personally attack the HOPO sat across from him, in fact he has been seen to make clear implications about a HOPO being homophobic to the tribunal without seeming to realise that said HOPO is actually very out about being gay and the judges mostly know this. You can guess whose submissions had more credibility with the judges.

      The problem is that many people turn to this man as he is seen as an expert in the area, but they don’t seem to realise that the approach he takes very often alienates the IJs he is before who are won over by the much more ‘reasonable’ HOPOs.

  4. When persecution based on things such as religion, political opinions, and sexual orientation is used as grounds for asylum, some pretty thorny issues can come up. It’s been addressed in the U.S., as well, with Chinese citizens claiming to be recent converts to Christianity coming into immigration court, and being unable to answer basic questions about their religion.