Why the Supreme Court ruled against the deportation of gay asylum-seekers

'Male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates'

Robert Verkaik
Sunday 23 October 2011 05:12

Gay and lesbian asylum-seekers have won the right to live in Britain after the Supreme Court ruled yesterday that the Government was wrong to return refugees to countries where people had to choose between homophobic persecution or hiding their true sexual identity.

The ruling by Britain's highest court ends the Home Office's controversial policy of refusing asylum to gay refugees on the grounds that they could avoid persecution abroad by pretending to be heterosexual.

Lord Hope, deputy president of the court, who headed a panel of five justices who heard the case of a man from Cameroon and a man from Iran, said that to compel a homosexual to pretend that their sexuality does not exist or can be suppressed was to deny him his fundamental right to be who he is.

Lord Rodger said the normal behaviour of gay people must be protected as it was for heterosexual people.

"What is protected is the applicant's right to live freely and openly as a gay man. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates."

Lord Hope said persecution of gays and lesbians was not seen as a problem when the United Nations Convention on the Status of Refugees 1951 was drafted because countries denied homosexuality even existed.

He said a "huge gulf" had opened up in attitudes towards gay people: "It is one of the most demanding social issues of our time. Our own Government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years."

The judge said more and more gays and lesbians were likely to have to seek protection here if it was denied in their home countries.

Ben Summerskill, chief executive of the campaign group Stonewall, said: "We are pleased that the Supreme Court has recognised the reality of life for many gay people overseas. We are also delighted that the Government intends to take notice of the judgment."

Jill Roberts, chief executive of Refugee Action, said: "We are relieved that the Supreme Court has acknowledged that the discretion test is unacceptable and was effectively asking gay people to deny their own identity and live with the daily threat of discovery."

In one case, John Smith, not his real name, said he was a victim of violent homophobia in Uganda before he sought asylum in Britain this year after becoming "tired of running and hiding".

Mr Smith was attacked and "left for dead" by a gang of nine men who "were holding sticks and shouting and yelling abuse at me". He said: "I couldn't run, they just attacked me. They hit me on the head and I fell down. They were saying, 'it's the one'. I was bleeding and they hit me on the eye and I became unconscious. They continued attacking me; they stabbed me on the right-hand side of the stomach and tried to cut my big toe off. I have lost sight in my left eye because of the attack." Smith sought asylum in the UK after feeling it was unsafe to stay in Uganda where homosexuals have to be reported to the authorities.

In an interview with the UK Border Agency he claims immigration officers asked him to go home and "pretend to be normal" and "hide in a different village". "It was like asking a woman to pretend to be a man; I can't change who I am," he told The Independent.

Theresa May, the Home Secretary, said: "I welcome the ruling of the Supreme Court, which vindicates the position of the coalition Government. We have already promised to stop the removal of asylum-seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution. I do not believe it is acceptable to send people home and expect them to hide their sexuality to avoid persecution."

"From today, asylum decisions will be considered under the new rules and the judgment gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case.

"We will, of course, take any decisions on a case-by-case basis looking at the situation in the country of origin and the merits of individual cases in line with our commitment."

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