R (B) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] EWHC 338 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2010 |
| Docket Number | Case No: CO/13525/2009 |
[2010] EWHC 338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Hickinbottom
Case No: CO/13525/2009
S Chelvan (instructed by TRP Solicitors) for the Claimant
Vinesh L Mandalia (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 18 February 2010
Mr Justice Hickinbottom:
Introduction
The Claimant is a lesbian, and a Ugandan national.
Homosexuality is a matter of sexual orientation or identity rather than behaviour ( DW (Homosexual Men—Persecution—Sufficiency of Protection) Jamaica CG [2005] UKAIT 168: see also Regulation 6(1)(e) of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006 No 2525)). For asylum purposes, homosexuals in Uganda form a particular social group, and a member of that group is entitled to refugee status if he or she has a well-founded fear of persecution if returned to Uganda ( Islam v Secretary of State for the Home Department [1999] 2 AC 629, and Jain v Secretary of State for the Home Department [2000] Imm AR 76).
The proper approach to the question of whether a gay man or lesbian will suffer such persecution was considered in Jain, in which (at pages 82–3) Schiemann LJ said:
“As it seems to me there is now a broad international consensus that everyone has a right of respect for his private life. A person's private life includes his sexual life, which thus deserves respect. Of course no person has a right to engage in interpersonal sexual activity. His right in this field is primarily not to be interfered with by the state in relation to what he does in private at home, and to an effort by the state to protect him from interference by others. That is his core right. There are permissible grounds for the state interference with some persons’ sexual life—e.g. those who most easily express their sexual desires in sexual activity with small children, or those who wish to engage in sexual activities in the unwilling presence of others. However, the position has now been reached that criminalisation of homosexual activity between consenting adults in private is not regarded by the international community at large as acceptable. If a person wishes to engage in such activity and lives in a state which enforces a criminal law prohibiting such activity, he may be able to bring himself within the definition of a refugee. That is one end of the continuum.
The other end of the continuum is the person who lives in a state in which such activity is not subjected to any degree of social disapprobation and he is free to engage in it as he is to breathe.
In most states, however, the position is somewhere between those two extremes. Those who wish to engage in homosexual activity are subjected to various pressures to discourage them from so doing. Some pressures may come from the state—e.g. state subsidised advertising or teaching to discourage them from their lifestyle. Other pressures may come from other members of the community, without those members being subjected to effective sanctions by the state to discourage them. Some pressures are there all the time. Others are merely spasmodic. An occasional interference with the exercise of a human right is not necessarily a persecution. The problem which increasingly faces decision-takers is when to ascribe the word “persecution” to those pressures on the continuum.”
Schiemann LJ went on to stress that, for there to be “persecution”, there must be ill-treatment of some severity in terms of persistence and seriousness, without just cause. He also noted, in the context of unenforced legal prohibitions of homosexuality, that a policy of non-enforcement may be subject to change and that the very existence of such a prohibition is capable of adversely affecting a person's private life.
Factual background
The Claimant arrived in the United Kingdom on 24 November 2004 on a visitor visa valid until 9 February 2005. She overstayed without attempting to regularise her immigration status until, on 8 May 2008, she was arrested during an immigration operation. She was found to have a false Ugandan passport and, on 28 May 2008, she was convicted of possessing the identity document of another, and sentenced to 12 months’ imprisonment. She was also recommended for deportation.
On 25 June 2008, she claimed asylum on the basis that, as a lesbian, she would be at risk on return to Uganda. The Defendant did not accept the Claimant's credibility, specifically not being satisfied either that she had been twice detained in Uganda on account of her sexual identity as she claimed or indeed that she was a lesbian at all. Her claim was refused on 17 December: and a deportation order was issued on 22 December 2008.
The Claimant appealed the decision to deport and, as part of that, she challenged the underlying decision refusing her asylum. The appeal was heard on 23 March 2009 by Immigration Judge Grimmett who, in a determination dated 6 April 2009, found:
(i) The Claimant was a lesbian.
(ii) The police in Uganda had no right to detain the Claimant because of her sexuality, because the Ugandan anti-homosexual laws were restricted to males.
(iii) However, the Claimant had been arrested in Kampala in May 2004, and had been briefly detained by police in September 2003 in her home town of Mukono, both on account of her sexual identity.
(iv) Having been arrested in Kampala in 2004, she was granted bail but failed to comply with the reporting requirements. There was consequently a record in Kampala of that failure to report, referred to in the evidence as a “wanted list”. However, although that record would have been known to the police in Kampala, it would not have been notified to other forces. The Claimant would therefore not have been at particular risk of arrest except in Kampala. Even if arrested there, the Immigration Judge found that there was no evidence that she was at risk of ill-treatment of such severity as to amount to persecution, the ill-treatment she had received when arrested in 2003 and 2004 not being of that severity.
(v) The Claimant had exaggerated the risk on return, her decision to stay in the United Kingdom being less to do with a fear of return to Uganda and more to do with supporting her family through difficult times by working here and sending money back to Uganda. The only evidenced problem in a specific case involving lesbians in Uganda concerned the high profile chair of a particular gay group. The Claimant was a very discreet person, and had conducted her sexual relationships discreetly in the past—and would continue to be discreet if she returned to Uganda; for example, she would not talk to anyone about her sexuality, except those who were close to her whom she could trust.
The Immigration Judge consequently found that the Claimant could return to Uganda and continue her discreet homosexual life, without fear of persecution. Her appeal was refused. Reconsideration was refused by a Senior Immigration Judge on 27 April 2009 and by this Court (Burton J) on 15 July 2009.
On 23 July 2009, the Claimant made further representations, in the form of a new application for asylum and discretionary leave, which was treated by the Secretary of State as an application to discharge the deportation order. The application was refused on 31 October, and was certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as being clearly unfounded. On 2 November, the Defendant's Criminal Casework Directorate made the decision to remove the Claimant, the relevant caseworker and decision-maker (Ms Sharon Peet) recording:
“There are no barriers to [SB's] removal. It is intended to detain her when she reports on 6 November 2009 and to arrange for removal directions to be set for the earliest available flight.”
In the course of this judgment, I shall have to consider that decision and the events that were consequent upon it in some detail. However, at the time of that decision (2 November 2009), Ms Peet was correct. There was no outstanding representation or application, nor any other barrier to removal, and the Defendant had appropriate statutory powers to detain the Claimant pending removal.
The Claimant failed to report on 6 November, telephoning the centre to say she was ill. She was asked to report on 9 November, but did not do so. A direction was therefore made by Ms Peet that day (9 November) for her to be detained when she reported on 13 November.
However, in the meantime, on 5 November further representations had been made on behalf of the Claimant, with additional objective evidence including evidence relating to the Anti-Homosexuality Bill which had been tabled in the Ugandan Parliament in October. Those were again treated as an application to discharge the deportation order. The application was refused and certified as clearly unfounded that same day.
Further representations were made on behalf of the Claimant the following day, 6 November, particularly expanding upon the new Bill.
On 12 November, before any response had been received to those latest representations, the Claimant issued this judicial review, seeking to challenge the Defendant's decisions of 31 October and 5 November 2009 to certify the Claimant's asylum claims as clearly unfounded. The claim was accompanied by an application for urgent consideration and interim relief in the form of an injunction to prevent removal. That day...
To continue reading
Request your trial
-
K (J) (Uganda) v Minister for Justice
...398, (Unrep, HC, Clarke J, 21/12/2004); I(CO) v Minister for Justice [1007] IEHC 180, [2008] 1 IR 208; B(S)(Uganda) v Home Secretary [2010] EWHC 338 (Admin), (Unrep, QBD, Hickinbottom J, 24/2/2010); U(MA) v Minister for Justice, Equality and Law Reform (No 2) [2011] IEHC 95, (Unrep, HC, Hog......
-
R JN v Secretary of State for The Home Department
...persecution of homosexuals in Uganda. Plainly things have moved on. I was referred to a decision of Hickinbottom J in the case of SB [2010] EWHC 338 (Admin) in which Hickinbottom J reviewed the position as it then was in Uganda. That does not mean they have moved on so that there is general......