EK (non overt - homosexual) Uganda  UKIAT 00021
Date of hearing: 22 January 2004
Date Determination notified: 12 February 2004
|Secretary of State for the Home Department||RESPONDENT|
(a) Was the Adjudicator right to come to the conclusions on the facts that he did as to the claimant's sexuality and
(b) If he was wrong, does that mean that the claimant would, even on his own account be someone who was at real risk of persecution were he to be returned to Uganda.
In order to analyse that, and before we turn to the facts of the case, it will be necessary to consider whether the laws of Uganda as far as we are made aware of them are laws that prohibit homosexuality. It seems to us abundantly plain that they are. We have been assisted by citation from two reports, the first being a CIPU report of October 2003 which states in its relevant paragraphs as follows:
"6.103 Under the Uganda Penal Code homosexuality is illegal for men. Homosexual acts between women are not mentioned. The maximum penalty for homosexuals in Uganda is life imprisonment. Section 140 of the Penal code criminalises "carnal knowledge against the order of nature" with a maximum penalty of life imprisonment. Section 141 "attempts at carnal knowledge with a maximum penalty of 7 years imprisonment". Section 143 punishes acts or procurement of or attempts to procure acts of gross indecency between men in public of private with up to 5 years imprisonment. In September 1999 President Musevene called for the arrest of homosexuals for carrying out "abominable acts" following the wedding of two gay men.
6.104 In March 2002 while accepting an award for his government's successful campaign against HIV/AIDS President Musevene said "we do not have homosexuals in Uganda so this is mainly heterosexual transmission". In December 2002 the Bishop of Mukono Diocese cautioned Christians against homosexual organisations that want to join the church in the pretext of funding them."
"Discrimination against lesbian, gay and bisexual and transgender LGBT Ugandans continued. Legislation discriminating against gays and lesbians remained in place. In March President Musevene said in a speech to the Commonwealth heads of government meeting in Australia that the relative success of fight against aids in Uganda was because the country has no homosexuals. On 30 August the Ministry of Ethics and Integrity ordered police to arrest and prosecute homosexuals. Security agents continued harassing members of the LGBT community throughout 2002 and seven were arrested because of their sexual orientation. In December the police arrested and released on police bond a prominent member of an association of gay men and lesbians who went to a police station to enquire about two members of the association, arrested him allegedly because of their sexual orientation. "
"Mr Blake submitted that whatever the submissions which the ECHR had currently reached this Court was free to develop its case law under the Human Rights Act. So it is. The question thus arises whether this court should Rule that no immigration policy considerations could justify the return of an individual to accompany where his expression of his sexual desires with another adult in private is in anyway inhibited.
For my part I would not rule in such broad terms. This is a difficult area. Consider a proposed expulsion of a heterosexual man to a destination state which has, and enforces laws which would inhibit that man from marrying or founding a family or more than say, 1 child - for instance laws which prohibit marriages between persons of different races or laws which place it as a severe disadvantage for those who have more than 1 child. These are fanciful examples and I consider that we should develop the law on a case by case basis in the light of the facts of that case rather than rule on the points in the abstract."
"The essence of his claim is that it would be a breach of his human rights and in particular Article 8 were he to be returned to the jurisdiction of Jamaica where homosexual activity is a criminal offence. Not just because of that factor but becau8se he will suffer an element of persecution and disruption to his life in the jurisdiction."
"This appeal is concerned with Article 9, our reasoning has however wider implications. Where the Convention is invoked on the sole ground of treatment which an alien refused the right to enter or remain is likely to be subjected by the receiving state and that treatment is not sufficiently severe to engage Article 3. The English court is not required to recognise it. Any other article of the Convention is or may be engaged. Where such treatment falls outside Article 3 there may be places which justify the grant of exceptional leave on humanitarian grounds."
"After referring to the case of N & Z
"49. It simply cannot be the more in my judgment that merely because the law of Jamaica has a criminal statue it criminalises homosexual behaviour, that mere fact cannot of itself be sufficient to require this country to grant immigration status to al practicing homosexuals in Jamaica. On that basis anyone who is a homosexual could come to this country and claim asylum.
50. Therefore the matter must be fact sensitive and the applicant must show something in addition to the mere fact that he his homosexual. In my judgement the over whelming weight of the authorities is that an applicant in the position of this applicant has to bring himself either within Article 3 or at least show some substantial sub-stratum fact that he is going to be subject to substantial discrimination and/or violence and abuse."
(a) that he would be identified as being homosexual on his return and
(b) whether he would be at real risk on return because of any conduct that he might be likely to engage in after he returned to Uganda.
His Honour Judge N Ainley