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posted Friday, July 9, 2010 - Volume 38 Issue 28
Brits OK asylum for Gay refugees
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Brits OK asylum for Gay refugees

by Mike Andrew - SGN Staff Writer

Britain's Supreme Court ruled on July 7 that Gays and Lesbians seeking asylum have a right not to be deported if they would be in danger in their home countries.

The unanimous ruling came in cases involving Gay men from Cameroon and Iran.

Both men had previously applied for asylum on grounds of their sexual orientation and had been turned down. Officials informed both that they could escape persecution by behaving discreetly.

One of the men, called "T" in court documents, was appealing a lower court decision that he should return to his native Cameroon even though he had been attacked by a mob after he was seen kissing his boyfriend.

The other, called "J," had been told by a lower court that he could reasonably be expected to cope with conditions in his native Iran if he were discreet.

In Cameroon, prison sentences for same-sex relations range from six months to five years. In Iran, punishment ranges from public flogging to hanging.

Lord Hope, deputy president of the Supreme Court and chair of the panel of five judges who ruled in this case, said that forcing a Gay man to pretend his sexual orientation does not exist or should be suppressed was a breach of his fundamental rights.

The court also laid down a framework for determining future asylum claims by Gays and Lesbians.

The international Convention on the Status of Refugees provides that members of social groups have a right to asylum if they can establish a well-founded danger of persecution if they were returned to their home country.

Lord Hope noted that persecution of LGBT people was not regarded as a problem when the convention was drafted because it was the practice in some countries to deny its existence.

"This was manifest nonsense," Lord Hope said in his ruling, "but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that rightwing evangelical Christian churches indulge in throughout much of sub-Saharan Africa is another."

More and more LGBT people are likely to seek asylum in Britain if they continue to be at risk in their home countries, he added.

"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."

Another member of the court, Lord Rodger, said the normal behavior of Gay people must be protected just as it is 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 colored cocktails, and talking about boys with their straight female mates." The justices said immigration courts should decide on the evidence whether an applicant was Gay and whether he would face persecution if he lived openly in his own country.

If this is the case, then he would have a well-founded fear of persecution, even if he could avoid the risk by living discreetly.

If a court found the applicant would have to live discreetly to avoid persecution, then his application for asylum should be allowed, the judges said.

If the applicant chose to live discreetly because of social pressure - not wanting to distress his parents or embarrass his friends, for example - then the application should be rejected.

The judges added that courts should follow the same approach for Lesbians.

The ruling was welcomed by British Home Secretary Theresa May, whose ministry oversees immigration issues.

"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," May said.

The Supreme Court of the United Kingdom was established by the Constitutional Reform Act of 2005, and began work in October 2009. It replaced the House of Lords as the final court of appeal in Britain.

The U.S. is also a signatory of the Convention on the Status of Refugees, and is therefore bound by its provisions.

The U.S. has established a complex priority system for admitting asylum seekers. None of the categories explicitly address sexual orientation or gender identity. Typically, refugees from countries the U.S. considers hostile - Iran, for example - get priority over those from countries considered friendly to the U.S., like Saudi Arabia.

There is no definitive right to asylum in U.S. law.

Refugees do have a procedural right to ask the attorney general to make a discretionary determination whether they should be admitted into the United States.

Applicants for asylum are also entitled to mandatory "withholding of removal" if they can prove that their life or freedom would be threatened upon return to their country of origin.

Disputes in U.S. asylum cases would initially be litigated before the Executive Office of Immigration Review. Subsequently, federal courts would decide whether the immigration courts acted properly in rejecting an applicant's claim.

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