How the system is failing asylum-seekers
On 8 December, sitting in Heathrow Airport, holding a ticket provided by the Home Office, Judith Twikirze was scared. She was being deported back to Uganda, which she had fled in 2009, after being tortured and exorcised for being a lesbian.
Ten weeks earlier, on 29 September, she had applied for asylum. She was taken to Colnbrook Immigration Removal Centre. After three days, Judith was transferred to Yarl’s Wood Immigration Removal Centre and held there unlawfully.
Three weeks after being detained, Judith was interviewed for six hours. Two days after her interview, on 27 October, she got a letter stating that the authorities had decided to deport her.
Her friend Abbey Kiwanuka, co-founder of Out and Proud Diamond Group, an organization that helps lesbian, gay, bisexual and transgender (LGBT) asylum-seekers, was not surprised: ‘As we expected, they did not believe that she was a lesbian. We have had to get used to that.’
Judith appealed the decision, which then went to court on 12 November. However, Judge Bird, at the First-tier Tribunal, ‘did not allow all the witnesses to be heard or all the medical records to be seen, as [he] said they had not been submitted in the right way’, Judith explains. The fact that the evidence relied on two men was not to the Judge’s taste either. The appeal, which had relied on just one witness, was unsurprisingly rejected.
Judith applied to the Upper Tribunal, which upheld the decision and issued her a ticket to Uganda. She believes the Home Office impeded her: ‘Because they put me on to the fast-track system, I didn’t have enough time to get all the evidence together. Another delay was that they said my doctors and councillors were not qualified, so we had to send in their medical qualifications, even though they had been working with victims for over five years.’
Peter Tatchell, Director of the Peter Tatchell Foundation, who has worked with LGBT asylum-seekers for 20 years and has helped over 200 refugees, knows the situation well. ‘The system of detention and fast-track seems deliberately designed to fail as many refugees as possible. The lack of freedom and the time limit means it is impossible for any refugee to gather the evidence to prove their claim.’
This may be why the Refugee Council found that in 2013, 63 per cent of initial decisions by the Home Office were refusals. Out of these, only 25 per cent of subsequent appeals were granted.
The Home Office policy, however, is that ‘any asylum claim, whatever the nationality or country of origin of the Claimant, may be fast-tracked where it appears after screening to be one that may be decided quickly.’
In July, the High Court found that the Detention Fast Track (DFT) was operating unlawfully for vulnerable people, including torture survivors, who did not have sufficient access to legal advice. This was ruled to be so unfair as to be unlawful. This means that those who have been tortured should not be eligible for DFT.
On 29 September, Judith told the detention nurse of her torture in Uganda. It took her 14 days to see the detention doctor. Dr Rebecca Ward reported to the Home Office that the marks were consistent with sharp cuts and lacerations. When the Home Office received the report, nothing was done to release her.
On 15 October, the Home Office, in its official refusal statement, said: ‘It is accepted that you may have been taken to a witchdoctor whilst you were a child and you were subjected to bleeding, and you may have been attacked by school students. For the reasons outlined in paragraph 9 above, it is rejected that you are a lesbian and as such it is not accepted that you received this ill treatment because of your sexual orientation.’
Essentially, while denying the link to Judith’s sexuality, the Home Office accepted that she had been tortured.
Abbey spoke to the Helen Bamber Foundation, which agreed to examine her and provide a full medical report. The appointment was set up for January 2015, meaning that the Home Office had to release her, but they refused.
Medical Justice, an NGO specializing in bringing medical assistance to immigrants held in detention centres, did all it could to liaise with the Home Office and get Judith released. Even when it finished the medical report and handed it over to the Home Office, however, nothing happened.
‘The system of detention and fast-track seems deliberately designed to fail as many refugees as possible. The lack of freedom and the time limit means it is impossible for any refugee to gather the evidence to prove their claim.’
Jerome Phelps, director of Detention Action, the charity which mounted the legal challenge against the Home Office, says that torture survivors have never been considered suitable candidates for detention.
But there’s another reason why Judith should not have been detained on the DTF system. On 16 December 2014, the Court of Appeal found that the detention of asylum-seekers who are not at risk of absconding while their appeals are pending is unlawful, a policy that had been in place since 2008. Judith’s case had a judicial review pending in the Upper Tribunal at the time.
Peter Tatchell, who worked closely with Judith on her case, stressed that she ‘was at very low risk of absconding. She has been open and transparent with the Home Office from the outset. The onus is on the authorities to produce evidence showing that Judith is at risk of absconding. They have failed to do so. There is no such evidence. She’s being locked up because that’s the way the system operates, not because she personally poses a risk.’
Indeed, Phelps argues that ‘depriving someone of their liberty for administrative convenience is a grave step under any circumstances.’
The solicitor acting for Detention Action, Sibak Ghelani, puts it simply: ‘The Home Office has been detaining asylum-seekers unlawfully for their appeals for the last six years. It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain the opponent when the effect of detention is to make the appellant’s conduct of the appeal much more difficult and therefore, to make it less likely that he or she will be successful.’
Paul Dillane, Executive Director of the UK Lesbian and Gay Immigration Group, says that ‘although detaining asylum-seekers is not necessarily unlawful in domestic law, we disagree with it in practice – it is unnecessary, very damaging to an individual’s physical and mental health, impedes decision-making and is extremely costly. Seeking asylum is not a crime and, as the UN Refugee Agency says, there are generally few reasons to warrant the detention of an asylum-seeker who is potentially, like many of our clients, fleeing human rights abuses.’
This is a tactic the Home Office has devised in order to cut asylum numbers rather than objectively examine the individual merits of each case, Tatchell says. ‘It has a presumption that every claimant is a fraudster and con man, even when the evidence is to the contrary. An LGBT asylum applicant can present clear evidence that they are in a same-sex relationship, with letters, photos or attendance at LGBT organizations, and the Home Office can still say: “We don’t believe you.”’
They did not believe Judith. On Tuesday 2 December, the Home Office issued her the removal ticket, with deportation scheduled for Monday 8 December. Two days later her lawyer dropped the case and closed her file.
This gave Abbey and Judith one day to find a lawyer – on a Friday. The Home Office assumed it was an impossible task, and took her to Heathrow Airport on Monday. But a new lawyer had been found, and by Friday 5 December, the doctors had managed to finish the medical report. On Friday at 10.30pm, the new lawyer submitted a fresh claim which included the completed medical report.
On Monday, while Judith was at the airport waiting for her flight, the Home Office dismissed her fresh claim. A Judicial Review was submitted to the Upper Tribunal in Holborn. The Home Office rejected that as well, but because it was directed to the Upper Tribunal, an official response was needed from the Upper Tribunal, not the Home Office.
Meanwhile, staff at Heathrow tried to usher Judith on to the plane. She refused. ‘If I go back, I am facing death. I would rather be locked away here.’ They told her that if she got on the plane, they could disembark her before take-off if they received new information. She said no.
They told her that if she complied, it would make any future application for a visa here easier, but if she did not, they could make it difficult for her. Still, she did not move.
Judith gave them the Judicial Review number that said the case was still open. She was subsequently taken back to Yarl’s Wood, despite being in desperately poor health.
At first, she had an iron deficiency that required medication. The prescription soon ran out, and couldn’t be renewed, even though it was prescribed by a doctor based in Britain. Her friends now believe she also needs to see a mental-health expert, adding to her general health problems.
Judith musters enough strength to explain that ‘the authorities took my blood test when I complained of medical problems, and [the results] showed up clear. I tried to explain it has nothing to do with my blood, but they dismissed me and have not let me see a doctor. I am sick and I need medication which they are not giving me here.’
Peter Tatchell says that this is not uncommon: ‘In detention centres there is heavily restricted access to medical staff, solicitors and councillors. The Home Office seek to justify this on grounds of it being under-resourced and overstretched. This is not an excuse; justice must be fair.’
He also highlights how tough it is for LGBT asylum-seekers due to the ‘culture of homophobia in detention centres’. And this does not just come from the other detainees. ‘Home Office asylum case workers and interpreters sometimes come from the homophobic countries that LGBT refugees have fled. They share the anti-gay prejudice of those countries. I have recently been supporting a gay Syrian man who said his caseworker was a Muslim woman in traditional dress. As soon as he mentioned that he was claiming asylum because he was gay, her attitude towards him changed for the worse. He feels that he hasn’t received a fair, objective assessment via his caseworker on account of her religious belief.’
‘The Home Office have made the situation worse’, says Judith. ‘The way they have handled [my case] means that everyone in Uganda knows me now. They also know that I am an LGBT campaigner, so even if I could deny being a lesbian, they would kill me for campaigning.’
After being told she would not be deported, Judith says in a weary voice: ‘I cannot put it into words how happy I am to be free. I just wish I didn’t have to go through that process. I wish that others didn’t have to either.’
Abbey believes that she was released due ‘to public interest and pressure from well-known people like Lord Michael Cashman, Crispin Blunt MP and Peter Tatchell’.
Judith now awaits the official decision from the upper tribunal and is expected to be granted asylum. While her case is a victory, there are many people like her at genuine risk of persecution who do not get the same chance because no-one knows about their plight.
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