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System design, International, Courts, UK Parliament, Children and young people, Immigration and asylum, Initial decision-making, Human rights/equalities, Prisons/detention centres, European Union

How the UK’s Illegal Migration Bill turns its back on persecuted LGBT people

As Human Rights Watch’s 2020 global report on LGBT rights illustrates, LGBT people still face significant prejudice, discrimination, and even violent persecution around the world. For LGBT people able to flee, the right to seek asylum offers the hope of safety. But under the Government’s Illegal Migration Bill – which imposes a ban on seeking asylum in the UK for almost all refugees – LGBT people will be denied much-needed protection here.  

Let us take the hypothetical but sadly not atypical example of a 21-year-old Ugandan gay man, Mukisa. After Uganda’s Anti-Homosexuality Bill, Mukisa faces life imprisonment for having sex with a man and lengthy imprisonment even for publicly stating the truth: that he is gay. Rejected by his parents and forced to sleep on the streets, Mukisa is kidnapped and held captive, forced to perform domestic labour under blackmail: work or be handed over to the police.

Against the odds and with the help of Ugandan LGBT networks, Mukisa manages to escape and is smuggled to the UK. This country was chosen because Mukisa’s only European language is English and because he has a sister studying at a British university who can support him. Countries neighbouring Uganda are not an option because of comparable homophobia.

Under the Illegal Migration Bill, the Home Secretary must immediately disregard Mukisa’s asylum claim (Clause 4) and remove him from the UK as quickly as she can (Clause 2), because he arrived without getting the Home Office’s permission first. But getting that permission would have been impossible. There is no scheme through which Mukisa could have applied for asylum in the UK while still in Uganda. These schemes only exist for a limited number of Ukrainians and Afghans.

The Government’s own figures demonstrate the strength of asylum claims with a sexuality-based element like Mukisa’s: in 2021, in 64% of cases the Home Office granted asylum. In the same year, 41% of appeals against initial denials of asylum with a sexuality-based element were also successful, making the true success rate over two-thirds. If this Bill passes, the Home Office will be denying protection to LGBT people who need it.

Worse, this Bill bans Mukisa from using his experience of modern slavery to avoid removal and denies him any support to recover from the abuse (Clause 21-28). This ban is a particular threat to LGBT young people, who are at a disproportionate risk of being trafficked because of rejection by family members and wider society.

While Mukisa could not be returned to Uganda under the Bill, he could be removed to a list of countries where homosexuality is a criminal offence, including Rwanda, Nigeria, Malawi, Liberia, Ghana, and Gambia. Even where homosexuality is not criminal, the list contains several countries where being LGBT is a serious social taboo with discriminatory and sometimes even violent consequences, such as Serbia (Clause 5(8)-(9)).

In the Bill’s list of 57 countries where refugees can be removed to, Rainbow Migration – an organisation that supports LGBT asylum seekers – estimates that 17 raise concerns for LGBT people. This is almost one third of the list.

The chances of Mukisa being removed to one of these countries is not trivial. The UK has no agreement with the EU to remove asylum seekers and currently the Government has only secured an agreement with one country outside the EU: Rwanda. And as a priority the Government is attempting to negotiate agreements with countries with similarly bad LGBT records, such as Ghana.

If Mukisa cannot be removed because the Government fails to secure agreements, the Home Secretary has the power to detain him indefinitely (Clauses 11-13). Research has demonstrated that LGBT people face particular risks in immigration detention, such as bullying, intimidation, and assault by fellow detainees.

If Mukisa wants to challenge his removal because he would suffer serious harm in any of these countries, he would have only 8 days (Clause 40(7)). But given the stigma and brutality suffered by gay men in Uganda, he will struggle to be so open about his sexuality with a government official. Failing to admit his homosexuality could prevent him from providing compelling evidence that he would suffer serious harm, which Mukisa needs to do to resist removal (Clause 40(5)).

Even if he does reveal his homosexuality, the Home Secretary would have only 4 days to consider the evidence (Clause 40(7)) – despite past practice indicating that the Home Office is incapable of such assessments in such a short timeframe. Even without the asylum backlog of 143,000 people and even with the increase in asylum caseworkers, it is absurd to suggest that Mukisa’s claim can be considered accurately in only 4 days. There will need to be a nuanced assessment of evidence to determine whether Mukisa faces serious harm in, say, Rwanda or Ghana. More likely is a culture of refusal: reject the challenge and hope for the best.

If, in the likely event that Mukisa fails in his claim after these rushed and unfair procedures, he took his case to the European Court of Human Rights in Strasbourg, the Home Secretary can also deny him that protection. Under the Bill, she is able to prevent the Strasbourg Court’s temporary protection orders – called interim measures – from taking effect (Clause 49).

For example, even if the Strasbourg Court thought that Mukisa faced serious harm and ordered the Home Secretary temporarily not to remove him while his case was considered in more detail in the UK, the Home Secretary could ignore this and remove him to Rwanda, Nigeria, or any of the other countries listed.

All of this may well be news to the Government. Phrases like “LGBT”, “gay” and “lesbian” are not even mentioned in the Government’s Human Rights Memorandum – the document designed to examine the Bill’s risk to people’s human rights. As well as being bad law, this Bill is fundamentally inadequate as evidence-based policymaking.

If the Illegal Migration Bill passes, this is what awaits Mukisa and all LGBT people in his situation. That would be a very sorry day, indeed. The UK should be capable of much better.    

Lee Marsons is a Senior Researcher at Public Law Project and Research Officer for the Constitutional and Administrative Justice Initiative (CAJI), Essex Law School


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