DW (Homosexual Men – Persecution – Sufficiency of Protection)
| Jurisdiction | England & Wales |
| Judge | P R Moulden,Senior Immigration Judge |
| Judgment Date | 28 November 2005 |
| Neutral Citation | [2005] UKAIT 168 |
| Court | Asylum and Immigration Tribunal |
| Date | 28 November 2005 |
[2005] UKAIT 168
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr P R Moulden (Senior Immigration Judge)
Mr R Chalkley (Senior Immigration Judge)
Ms S E Singer
For the appellant: Mr S Chelvan of Counsel, instructed by Southwest Law
For the respondent: Mr M Blundell, Senior Home Office Presenting Officer
DW (Homosexual Men — Persecution — Sufficiency of Protection) Jamaica CG
Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given.
The appellant is a citizen of Jamaica who was born on 19 December 1982. We heard both the first and second stage reconsiderations of his appeal against the determination of an Adjudicator, Miss J M Harries, dismissing his appeals on both Refugee Convention and human rights grounds against the respondent's decision to give directions for his removal from the United Kingdom following the refusal of asylum.
The appellant arrived in the United Kingdom on 31 March 2001 and claimed asylum on 1 October 2001. The notice containing the decision against which he appeals is dated 6 November 2001. The Adjudicator heard the appeal on 26 August 2004 and permission to appeal was granted by a Vice President of the Immigration Appeal Tribunal on 23 November 2004.
The Adjudicator outlined the facts of the case in paragraphs 8 to 11 of the determination in the following terms,
“8. The appellant claims that he fears persecution in Jamaica because of his sexual orientation; he claims to be homosexual. The appellant says that he was born and lived in Kingston, Jamaica, all his life until he departed for the United Kingdom. He never knew his father and lived with his mother, stepfather and siblings until his mother left Jamaica for the United Kingdom in February 1999. The appellant then remained in Jamaica with his stepfather. His stepfather had a violent manner, treated the appellant badly and threw him out of the family home.
9. The appellant says that he was continually taunted and accused of being gay in Jamaica. He says that two serious incidents were the cause of his departure from Jamaica. The first was in early 2000 when the appellant was leaving a gay club with a male friend in New Kingston. They were on foot when a car pulled up in front of them. A man got out of the car and shouted “batty man” and “gay” at the appellant and his friend. He punched and kicked the appellant and his friend; the friend ran away. The man then pulled out a gun and pointed it at the appellant before getting back into the car and driving away.
10. The appellant claims the second incident occurred in December 2000, at around 11.00 pm when he was waiting at the roadside for a friend he was going to a club with. The appellant claims a man came up behind him and held a knife to his throat. The appellant claims this man made him walk with him to an open place of land nearby where he forced the appellant to perform oral sex on him whilst he held the knife to his throat before releasing the appellant.
11. The appellant says he reported neither incident to the police because they would not provide protection and are known to be corrupt and homophobic. The appellant claims that homophobia is endemic in Jamaica; he says hostility towards gay men and lesbian woman is rife throughout the country and there is nowhere he could safely be returned to.”
The respondent did not believe the appellant's account of events or that he was homosexual. The respondent took the view that those who harassed the appellant were not agents of persecution and any failure on the part of the police to apprehend the perpetrators did not show complicity in or support for such attacks. The respondent was also of the view that there were other parts of Jamaica to which the appellant could reasonably go.
Both parties were represented at the hearing before the Adjudicator, the appellant by Mr Chelvan, who appeared before us. The appellant gave evidence, as did his witness, Mr B.
The Adjudicator's findings of credibility and fact merit inclusion in full. In paragraphs 25 to 40 of the determination she said,
“25. In reaching a decision I have applied the burden and standard of proof previously set out in this determination.
26. The appellant gave oral evidence that his sexual orientation is homosexual and the respondent is wrong to reject the fact that he is gay. He described his own demeanour as feminine. The appellant said that it is obvious that he is gay, not straight, and said that he wears tight tops to show off his shape. The appellant says in his statement, dated 18 August 2004, that he has known since the age of 11 years that he is gay. The appellant says he always liked the company of girls and had more in common with them than boys; he enjoyed dancing, shopping and chatting.
27. The appellant said in oral evidence that his witness, Mr B, is a friend, but not a boyfriend, who has been known to him for 3 years. The appellant gave evidence of homosexual relationships he had formed in the past; he named a former boyfriend as C and a more recent one as H. Mr B confirmed his own personal knowledge of these relationships and said he had been introduced to both C and H by the appellant. Mr B said that it is within his own knowledge that the appellant is gay and described him as very effeminate; he said that both he and the appellant are very involved in the gay community in a city in the UK, where they live.
28. In relation to the issue of the appellant's sexuality I accept his evidence. I am satisfied that he is homosexual. I find his evidence about this to be consistent throughout his claim, credible and supported by a reliable witness and plausible detail. I accept the evidence given by Mr B.
29. I accept the evidence of the appellant that he had a difficult time in Jamaica; he was verbally abused because of his presumed sexual orientation. He describes being referred to as “batty boy”, a well known slang term for homosexuals in Jamaica. I find the evidence given by the appellant in relation to the incident in early 2000, when a man alighted from a car, beat him and his friend and pointed a gun, to be credible. The appellant gives a consistent account of the incident. In the circumstances of the incident I am satisfied to a reasonable degree of likelihood that the appellant was attacked because of his homosexuality. It is reported to have happened in an area where male prostitution is practised.
30. Questioned about the incident in December 2000, the appellant said that he was not injured, just “boxed and stuff like that”, meaning he had been slapped to the face. I accept that this incident happened but I am not satisfied that there is a sufficient amount of evidence to show that the attack was because of the appellant's perceived sexuality, although he says he could have been identified as gay because he was dressed to go out.
31. I am not satisfied that the two major incidents complained of by the appellant posed a serious threat to him. In respect of the two most serious incidents he describes the opportunity was there, but not taken up, to do him considerably greater harm. I am not satisfied that there was a serious intent on the part of his assailants to do him serious harm. I accordingly do not agree with the appellant's assessment of these two incidents as being occasions on which he “almost lost his life”. Nor, as set out above, do I accept that the second incident is proved to be motivated by the appellant's sexual orientation. That is in no way to diminish the unpleasantness of the treatment received by the appellant or to condone such entirely unacceptable behaviour. The incidents, must, however, be assessed within the framework of asylum and human rights law and the general situation in Jamaica.
32. I am not satisfied that the appellant was genuinely in fear for his life when he left Jamaica or that he has a well-founded fear of persecution if returned to Jamaica. I consider there to be merit in the submission made on behalf of the respondent that the appellant's claim is undermined both by his delay in leaving Jamaica and his delay in applying for asylum after arriving in the United Kingdom. The delay in departing from Jamaica is not consistent with the appellant's claimed fear for his life. The appellant was cross examined about the 4 month delay in his leaving Jamaica; he said that he had been staying at a friend's house and was waiting for his mother to send him money.
33. I do not consider the explanation the appellant gives for the delay in applying for asylum to be adequate or credible. He applied at the end of the period when his visa expired, apparently because he had not been advised to apply for asylum. These are not, in my view, the actions of a person arriving in the United Kingdom in fear of his life, regardless of the advice he did or did not receive.
34. The appellant says, in effect, that he did not report the incident to the police in Jamaica because of their bad reputation and there would have been no point. It does not assist his claim, in spite of this explanation, to seek international protection before he looks for help...
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