JM (homosexuality: risk) Uganda CG  UKIAT 00065
Date of hearing: 30th November 2007
Date Determination notified: 11 June 2008
|Secretary of State for the Home Department||RESPONDENT|
Although there is legislation in Uganda which criminalises homosexual behaviour there is little, if any, objective evidence that such is in fact enforced. Notwithstanding a prevailing traditional and cultural disapproval of homosexuality, the evidence does not establish that in general there is persecution of homosexuality in Uganda.
"REASONS FOR THE DECISION THAT THERE IS AN ERROR IN THE DETERMINATION:
This appeal came before an adjudicator (Mrs P Wellesley-Cole) on 12 March 2003. The adjudicator dismissed the appeal and an appeal against the determination of the adjudicator was dismissed by the Immigration Appeal Tribunal on 30 April 2004 following a hearing on 28 July 2003. The reasons for the delay are unclear. The appellant appealed successfully to the Court of Appeal who in a consent judgment quashed the decision of the Immigration Appeal Tribunal and remitted the appeal before a differently constituted Tribunal.
Unfortunately the reasons given by the parties in the consent order are not before the Tribunal but the representatives told us it revolved around the question of the Tribunal's approach to the British High Commission letter dated 20 July 2000.
The discussion before us centred on the interpretation to be given to the adjudicator's findings about the appellant's homosexuality. In paragraph 16 of the determination the adjudicator said "Whilst I accept this sensitive young man who nervously gave his evidence in barely a whisper is quite possibly homosexual, I believe that this application which was made some eighteen months after his entry to the United Kingdom and a year after his leave had expired does to some extent damage his credibility to be in need of international protection. Despite his explanation that he needed to gather the necessary evidence, I am of the opinion that if genuinely fearing persecution in Uganda to which he returned after a sojourn in Kenya, he would have applied for asylum at the earliest opportunity and not ostensibly when he had no further leave to remain in this country." One particular sentence in paragraph 22 of the determination was interpreted by Mr Chelvan for the appellant as evidencing an error. Having referred to the appellant's belief that it would be a matter of time before his homosexuality was discovered on return to Uganda, the adjudicator observed:
"However, in my view this is mere speculation on his part if he indeed is in a discreet homosexual relationship which I consider he could be in."
Mr Chelvan submitted that the adjudicator was in effect requiring the appellant to be discreet on return to Uganda. However, an alternative interpretation was that the adjudicator was simply making a finding that the appellant was being discreet in a relationship in the United Kingdom.
We gave Mr Chelvan the opportunity to take further instructions about whether further findings of fact were necessary because of an arguable lack of clarity in the adjudicator's findings. The adjudicator appeared to have had at least reservations about the appellant's general credibility and there are at least question marks about whether the appellant had a subjectively held fear at all. Having had the opportunity to speak both to his instructing solicitors and to the appellant counsel accepted that the case should be adjourned for a fresh hearing to enable clear findings of fact to be made. Mr Gulvin for his part accepted the need for fresh findings but stated that the appellant's homosexuality would not appear to be in contention.
We do not find the adjudicator's determination to be clear on what may prove to be a central issue. If the adjudicator was finding that the appellant was discreet in the United Kingdom then there would be no particular reason to suppose he would not be discreet in another country. In so far as it was necessary to be "discreet" in Uganda the appellant would not arguably be required to modify his behaviour and so it might be difficult to argue that his human rights had been infringed, although we appreciate there are other issues that require investigation.
This is an appeal where the issues are not limited to issues of law. We find the adjudicator's findings to be lacking in clarity. Accordingly it is necessary to have fresh findings of fact and the Tribunal can then consider the up-to-date background material in addition. In view of Mr Gulvin's statement as to the Secretary of State's position, the Tribunal is unlikely to disturb the finding that the appellant is a homosexual."
"Is it possible to be openly gay in Uganda?"
Professor Furley said,
"It would be unwise and dangerous to show this in public, which might lead to arrest, or worst still by mob action. The only place they may be open about it is in the gay bars in Kampala, of which I am told there are a few."
(1) What is the current situation facing homosexuals in Uganda?
(2) How did the appellant behave as a homosexual in Uganda before he left the country?
(3) How will the appellant behave upon return?
(4) If he acts in that way will that expose him to persecution, harm or a breach of his protected rights?
(5) If not, is it reasonable to expect him to continue to act in that way?
What is the Current Situation for Homosexuals in Uganda?
"It is impossible to describe the depths of the ugliness, rage, revulsion, disgust and malevolence exhibited by the vocal homophobic public".
That statement made in 2003 stands in sharp contrast with that of Dr Furley in his report of January 2007 which indicate that issues of homosexuality were little discussed in Uganda until recently.
"The Court would not rule out that the silence imposed on the appellants as regards their sexual orientation, together with the consequent and constant need for vigilance, discretion and secrecy in that respect with colleagues, friends and acquaintances as a result of the chilling effect of the Ministry of Defence policy, could constitute an interference with their freedom of expression."
"Is it possible for a person to have an open gay relationship without suffering adverse consequences?"
The answer was in these terms:-
"It would be very risky. Ugandan society consists of very close-knit family groups, neighbours, as well as clans and other networks such as work mates or former pupils of schools. In any locality, everybody knows everybody else's business, and privacy is hard to come by. If you are discovered to be a homosexual then there is a risk of arrest and imprisonment, in addition to violence and discrimination. As explained there is no protection available."
"What steps would a gay man have to take in order to avoid the risk of serious harm in Uganda?"
Professor Furley replied:-
"His best chance to avoid risk would be to hide himself in a big town where he might avoid notice (Kampala being the only sizeable town) or possibly in some very remote region."
How Did the Appellant Behave in Uganda and What Will Be the Situation Facing Him
How Will the Appellant Behave on Return?
Is It Reasonable for the Appellant To Continue to Behave in the Way in Which he Will?
EK (non-overt- homosexual) Uganda  UKIAT 00021
YL AND RL (Kosovo – Risk to homosexuals) Serbia and Montenegro CG  UKIAT 0005
MN (Findings on Sexuality) Kenya  UKIAT 00021
(Homosexuals: Minors, Risk on Return) Iran  UKAIT 00120
(Homosexual Men – Persecution – Sufficiency of Protection) Jamaica CG  UKAIT 00168
LD (Article 14: same-sex relationships) Brazil  UKIAT 00075
Jain v Secretary of State for the Home Department  Imm AR 76
Z v Secretary of State for the Home Department  EWCA Civ 1578
Amare v Secretary of State for the Home Department  EWCA Civ 1600
RG (Colombia) v Secretary of State for the Home Department  EWCA Civ 57
J v Secretary of State for the Home Department  EWCA Civ 1238
"As it seems to me there is now a broad international consensus that everyone has a right to 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 the core right. There are permissible grounds for state interference of 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 these 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-makers is when to ascribe the word "persecution" to those pressures on the continuum."
".. will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for 'discretion' before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether 'discretion' is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to 'matters following from and relevant to, sexual identity' in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at para 83 [5395/002  HCA 71]). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the 'discretion' which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that are 'related to or informed by their sexuality' (ibid, para 81). This is not simply generalisation; it is dealt with in the appellant's evidence."
"The question that will be before the AIT on remission will be whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB (Iran) CG  UKAIT 00117. The Tribunal may wish to consider whether the combination of these two circumstances may have an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."
(2) Although the President and government officials have made verbal attacks upon the lifestyle of homosexuals and have expressed disapproval of homosexuality in the strongest terms, the evidence falls well short of establishing that such statements have been acted upon or would be provoked or should provoke in themselves any physical hostility towards homosexuals in Uganda.
(3) Although a number of articles have been published, in particular the Red Pepper article identifying areas where the gay and lesbian community meet and indeed identifying a number by name, the evidence falls very short of establishing that such articles have led to adverse actions from either the authorities or non-state actors and others in the form, for example, of raids or persons arrested or intimidation.
(4) Although it is right to note a prevailing traditional and cultural disapproval of homosexuality, there is nothing to indicate that such has manifested itself in any overt or persecutory action. Indeed there was evidence placed before us that a substantial number of people favour a more liberal approach to homosexuality.
(5) A number of support organisations exist for the gay and lesbian community and their views have been publicly announced in recent months. There is no indication of any repressive action being taken against such groups or against the individuals who made the more public pronouncements.
Senior Immigration Judge King TD
|APPENDIX 1: LIST OF BACKGROUND MATERIALS BEFORE THE TRIBUNAL|
|Undated||Report from Dr Paul Semugoma (additional report): Additional Answers to Questions raised (Behind the Mask article)|
|Undated||Immigration Appeal Tribunal: Grounds of appeal to Immigration Appeal Tribunal for permission to appeal to the Court of Appeal appendices.|
|1||Undated||Statement from Appellant|
|2||Undated||Witness Statement of Mr Christopher Kalyango Senteza (with accompanying documents)|
|3||Circa 2000||British High Commission letter 2000.|
|4||Circa 2002||Extracts from A Criminal Justice Baseline Survey of the Justice Law and Order Sector of Uganda - 2002|
|5||Circa April 2003||Immigration and Nationality Directorate - Country Information and Policy Unit: Uganda - Country Report|
|6||Circa October 2003||Immigration and Nationality Directorate - Country Information and Policy Unit: Uganda - Country Report|
|7||Circa April 2004||Immigration and Nationality Directorate - Country Information and Policy Unit: Uganda - Country Report|
|8||Circa 2005||Amnesty International: Report on Uganda for period January to December 2005|
|9||7 July 2005||Behind the Mask: 'Ugandan lawmakers pull the plug on homosexual activities' - Article by Musa Ngubane. (www.mask.org.za)|
|10||12 July 2005||Human Rights Watch: "Uganda: Same-Sex Marriage Ban Deepens Repression In Uganda, Colonial-Era Sodomy Law Already Mandates Life in Prison". (www.hrw.org)|
|11||2 August 2005||Amnesty International: Public Statement 'Uganda: Intimidation of lesbian and gay activists', News Service No. 208 (www.amnesty.org)|
|12||13 October 2005||International Gay and Lesbian Human Rights Commission: 'IGLHRC Condemns Uganda's Targeting of Lesbian and Gay Men; Calls Ban on Same-Sex Marriage "Legislative Overkill". (www.iglhrc.org)|
|13||March 2006||Bureau of Democracy, Human Rights and Labour: US Department of State Uganda: Country Reports on Human Rights Practices 2005'. (www.slate.gov)|
|14||April 2006||Home Office: Extracts from Home Office 'Country of Origin Information Report Uganda', April 2006 and October 2005 editions.|
|15||1 May 2006||Behind the Mask: 'We need to regulate IT laws in East Africa, says Buturo" - Article by Al-Mahdi Ssenkahirwa. (www.mask.org.za)|
|16||3 May 2006||Topix.net: Transcript of 'topix.net' website posting by Muhumuza Gerald, dated 3 May 2006, regarding article in The News Watch dated 27 April 2005
Re: treatment of homosexuals in Uganda.
|17||3 July 2006||Behind the Mask: "Buturo slams gays" - Article by Ronnie Kijjambo. (www.mask.org.za)|
|18||Circa 2007||Amnesty International: Report|
|19||4 January 2007||Directions dated 11 December 2006 and amendments to those Directions|
|20||15 January 2007||Home Office: Home Office Operational Guidance Note - Uganda|
|21||18 January 2007||Expert Report of Professor Robert Wintemute|
|22||18 January 2007||Expert Report of Professor Oliver Furley|
|23||21 January 2007||Letters from Wesley Gryk Solicitors to AIT and HOPOU since 21 January 2007|
|24||21 February 2007||Behind the Mask: "Christians warned on homosexuality"|
|25||6 March 2007||US Department of State: Report|
|26||20 March 2007||Afrol News: "Uganda's gays left out of HIV/AIDS strategy"|
|27||23 March 2007||Africa News: Uganda; Lesbian Survives Deportation From the US|
|28||April 2007||International Lesbian and Gay Association : "State sponsored homophobia"|
|29||29 June 2007||Behind The Mask: "Anti-gay Ugandan minister receives hate mail"|
|30||11 July2007||Afrol News: "Fears of enhance gay repression in Uganda"|
|31||17 August 2007||BBC News: "Uganda rejects a gay rights call"|
|32||17 August 2007||Behind the Mask: "Homosexuals demand acceptance in Society"|
|33||21 August 2007||Christian Today: "Christian Groups hold anti-gay protest in Uganda"|
|34||21 August 2007||New Vision Newspaper: "Religious group demonstrate against homosexuals"|
|35||21 August 2007||Pink News.co.uk: "Ugandan churches demonstrate against gay acceptance"|
|36||23 August 2007||Human Rights Watch: Letter to Ugandan President|
|37||23 August 2007||Human Rights Watch: "Uganda: State homophobia threatens health and human rights"|
|38||24 August 2007||Behind the Mask: "Ugandan government accused of state homophobia"|
|39||27 August 2007||ABC Premium News (Australia): Gays, Lesbians fight for rights Uganda|
|40||28 August 2007||Behind the Mask: "Tabliqs plan squad to fight gays",|
|41||29 August 2007||Behind the Mask: "Migrate, Buturo tells gays"|
|42||30 August 2007||Gay Republic Daily: "Anti gay censorship in Uganda"|
|43||31 August 2007||Behind The Mask: "Anti gay group hits back at rights activists"|
|44||31 August 2007||New Vision Newspaper: "Anti Gay group hits back at rights activists"|
|45||31 August 2007||New Vision Newspaper: "Parents start campaign against homos"|
|46||9 September 2007||Sunday Pepper: "Homo terror: we name and shame top gays in the City"|
|47||11 September 2007||International Gay
and Lesbian Human Rights Commission: "Threats of Arrests and State-Sponsored Violence Against Gay Men, Lesbian, Transgenders' in Uganda"
|48||12 September 2007||Africa News: Uganda; Court Agrees to Hear Lesbian Case|
|49||13 September 2007||Doug Ireland: "Uganda's anti gay witch hunt continues"
|50||13 September 2007||Letter from UK Lesbian and Gay Immigration Group|
|51||14 September 2007||Pink News.co.uk: "Ugandan newspaper continues outing strategy"
|52||1 October 2007||Report of Dr Paul Semugoma with enclosures|
|53||15 October 2007||Report of Maxim Anmeghichean with enclosures|
|54||16 October 2007||African Veil: Gay Sympathiser Attends Mass (www.africanveil.org)|
|55||17 October 2007||Human Rights Watch: Uganda: Rising Homophobia Threatens HIV Protection|
|56||17 October 2007||Letter from Chistophe Dendaletche: Re: JM|
|57||17 October 2007||Letter from Alexander Robertson|
|58||16 November 2007||Letter from Laura Willett: Re: JM v SSHD|
|59||16 November 2007||Letter from Barry O'Leary: Re: JM, Country Guidance case|
|60||20 November 2007||Letter from Barry O'Leary: Re: Letter of support for UK asylum case.|