Dr Bernard Andonian, consultant solicitor at Gulbenkian Andonian solicitors, discusses judicial independence involving the case of a Ugandan lesbian national who was deported after found sharing a bed with a man who must now be returned to the UK by the order of the High Court.
A 26-year-old lesbian whose name has been anonymized (and will be referred to as “PN”) to protect her interest as a vulnerable adult, is to be returned to the UK by the order of the High Court, after she was discovered by immigration officers in bed with a man and thereafter deported on the basis that she had lied about her sexuality.
The Geneva Convention on the status of refugees 1951 and its 1967 protocol allows those persons who are considered to be members of a particular social group in their country of nationality or residence, and who fear persecution as a result, to claim asylum in a third safe country, in this case, Britain.
Being gay or a lesbian is illegal in Uganda and those caught in such acts or in same-sex relationships can be punishable with the death penalty as a result of legislation passed in that country in 2014.
PN came to the UK approximately 10 years ago. She attended the Home Office for an asylum interview and informed the interviewing officer that she faced persecution imprisonment and potential execution if she were returned to Uganda because she was a lesbian. She also claimed therefore that she will suffer inhuman and or degrading treatment or punishment at the hands of the authorities, contrary to article 3 of the European Convention on Human Rights 1950, were she to be deported.
Due to her wrongful removal as found by Mr Justice Lewis in the High Court, PN is also claiming financial damages from the government because she was unlawfully detained and deported.
The High Court concluded that PN had been denied the opportunity to present evidence to show that she was in a lesbian relationship in Uganda and the only reason why she was with a man that night was because she was considering getting pregnant because she wanted a child, but she had not had any sexual relationship with the man. This did not mean that she was not a lesbian. She also said that her relationship with the man for this purpose was just a recent development.
The Home Office rejected PN’s claim for asylum as they did not accept that she was a lesbian. They told the High Court that when they raided PN’s London flat to arrest her for remaining in the UK unlawfully she was found to be in bed with a man.
The Home Office had told the judge that the decision to deport PN was based on the view taken that she had not provided any evidence of her alleged same-sex relationship either in Uganda or in the UK. She had not shown evidence that she had visited gay bars and clubs in London or that she had anyone to support her application for asylum on the basis that she was a lesbian.
PN’s case was one of those cases that had been fast-tracked under the short timescale rules at one time imposed by the Home Office for certain cases which prevented her from producing evidence of her previous relationships in time, resulting in a fast-unlawful appeal process. Needless to say, therefore her appeal had been dismissed but the High Court judge quashed the decision to deport her and ordered that the Home Secretary Sajid Javid now uses his best endeavours to facilitate the return of PN to the UK to enable her to continue with her appeal. The High Court judge also said that the PN was entitled to damages. This was for false imprisonment for the period from and including 6 August 2013 when she was detained to 10 September 2013 as the legal justification for her detention was flawed.
At present, it is unclear when the Home Office will be in a position to make arrangements for the return of PN to the UK, or the amount that will need to be paid in damages on behalf of the UK government. However, it is likely the Home Office will return her in due course to proceed with her appeal.
The case described above, illustrates the independence of the judiciary in the UK from the Government and Parliament, to come to its own reasoned decisions without outside influence.
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