Rome Workshop Cooperation between state officials and NGOs

Transcription

1 Rome Workshop Cooperation between state officials and NGOs I understand that participants are expecting to engage in this workshop, so I do not intend to speak initially for very long. l will briefly introduce our organisation, talk about the work we have done co-operating with decision-makers in the UK and suggest some areas we might want to discuss further. I am aware that there are representatives from a number of European countries, all of which will have slightly, or perhaps widely, different systems for making decisions on LGBTI asylum claims, but my only expertise is with the UK system. I cannot therefore provide specific suggestions for other systems, but can talk about broad issues that will, hopefully, be relevant to everyone. UKLGIG began 20 years ago, primarily as an organisation assisting lesbians and gay men with a foreign partner who wanted to live together as couples in the UK. For the first 10 years of our life, this was our work and we only occasionally provided assistance to asylum seekers. Just a note for your understanding, in order to differentiate between those granted, and those seeking refugee status, we refer to those yet to be granted as asylum seekers and those who have been granted as refugees aware that in the broad sense they are all refugees. Our organisation eventually achieved the first legislation in UK history to recognise lesbian and gay relationships and this ultimately led to Civil Partnership the equivalent of marriage. During the time that we worked for this equality with heterosexual couples, we established relationships that have been important in assisting our subsequent work with asylum seekers. The first and perhaps most important link we made was with lawyers. Over the years, we have had the voluntary support of dozens of immigration lawyers who have advised clients for free and supported our work both lobbying for change at government level and in fighting for change through the courts. Some, but by no means all of these lawyers are LGBTI themselves. The next important link we made was with other LGBTI organisations, particularly the large and influential one in the UK that lobbies for LGB rights, Stonewall. And the final useful link 1

2 we made was with members of Parliament both in the then government and in the opposition. In 2003, having achieved equality in immigration law for lesbian and gay couples, the organisation decided that it could use its reputation and contacts, and the resource of numerous immigration lawyers wanting to volunteer, to assist LGBTI people coming to the UK to seek asylum. For the last 10 years, this has been our focus. In that time we have learnt a great deal and I am very pleased to have the opportunity to share that with you. I should make it clear that we are a very small, but nonetheless influential organisation. For our first 7 years we had no staff, relying on volunteers to do our work. For the next 5 years we had one part time person and in 2005 employed a second part time person. We have gradually grown since then and are currently the biggest we have ever been with one part time and two full time staff members. I say this only to illustrate that as an NGO, you do not have to be big to have influence. UKLGIG provides quality legal advice, referral to expert immigration solicitors, mental and emotional support and social interaction to LGBTI asylum seekers. The organisation trains refugee support and LGBTI organisations, and solicitors. We work with members of parliament and Lords, the Home Office, in the Courts and in conjunction with other NGOs to influence positive change in policy and legislation. In April 2010 we produced a piece of research, Failing the Grade because we were extremely concerned that the Home Office was refusing 98-99% of our clients. Although there was, and still is, a focus on refusing asylum to as many people as possible, 25% of the general asylum seeking population was being granted. That suggested that there was a problem specific to our clients. When we published this research, the organisation for LGB staff within the Home Office was so shocked, that they requested the LGB lobby group Stonewall to do something about it. Stonewall came to us, interviewed our clients, interviewed Home Office decision-makers, asked us what recommendations to make and produced a report No Going Back. At this point, luck came into play. The UK had a change of government in May 2010 and the new government was keen both to show that it was different from the previous government and to allay fears that it was too conservative. They therefore announced that something had to be 2

3 done about Home Office decisions in relation to LGBTI asylum seekers. Immigration is currently one of the most political and explosive issues in the UK and a cynical person might suggest that the government could afford to be big on equalities in this respect without risking a big rise in the numbers of people being granted asylum. Only a tiny proportion of LGBTI people persecuted worldwide come to the UK to seek a safe haven, and most come only as a last resort. In 2009, research into the housing issues of LGBT asylum seekers produced the only estimate so far of the possible numbers coming to the UK. The report, Over Not Out, states that a conservative estimate of the number coming to the UK each year is between 1,300 and 1, UKLGIG supports around 1,000 LGBTI asylum seekers each year. We have worked with people from 66 different countries over the last 5 years. The result of the government s interest in LGBTI asylum seekers was that the Home Office was required between October and December 2010, both to produce guidance for decision-makers and to train their staff. We had been requesting guidelines for more than two years, and when we attempted to sneak them in the door by adding a large section on lesbians to the Gender Guidelines, on which they had consulted NGOs, they responded by deciding that specific LGB guidelines were indeed required. It was therefore, not too difficult to convince them to adopt the UNHCR guidelines that had recently been produced. The training of staff was more problematic. Although we had been presenting short, one-hour sessions to their new staff during their induction, the Home Office does not allow outside agencies to train their staff. We therefore worked with them to produce training. We started the negotiation process by suggesting a two day training and they started with two hours. We ended up with a compulsory full day training for all decision-makers and their managers, that was in the end fairly good. Interestingly, staff who had resisted attending said in feedback that although they had thought they knew how to assess a sexual or gender identity claim, they had learnt a lot. The deputy director of asylum policy at the time, who has subsequently retired, sent me an recently where he said: What I found really interesting about the whole LGBTI stuff was that, even at that late stage of my career, I found a subject where I personally and professionally found so much to still 1 3

4 learn. That's partly why I was so engaged with it all I guess (apart from it being right of course). Additionally, in July 2010, the UK Supreme Court ruled that what was called discretion, that is, requesting LGBTI people to return to their home countries and hide their sexual or gender identity for the rest of their lives, could no longer be used to refuse protection. 2 Since decision-makers were trained, the numbers recorded by UKLGIG of claimants who have contact with our organisation clearly show that things have improved, with only 18 LGBTI people granted asylum in 2008 and 25 in This figure jumped in 2010, undoubtedly due to the change in the law on discretion, to 70 LGBTI people granted asylum. In 2011 and 2012 the numbers decreased to 49 and 55 respectively, with 59 LGBTI people granted asylum so far this year. Although the system in the UK is difficult for all asylum seekers, LGBTI people face specific difficulties not faced by other asylum seekers: shame and secrecy about who they are, lack of knowledge that their identity is a ground for asylum, lack of support from either their home community in the UK or the LGBTI communities, lack of independent evidence about both their identity and about what happens to LGBTI people in their home country, and abuse in detention and accommodation provided by the Home Office. Without an organisation to assist them, many LGBTI asylum seekers would continue to be ignorant of their rights or be too afraid to be honest about their sexual or gender identity. Overcoming these very specific obstacles involves spending a large amount of time with asylum seekers helping them to prepare to tell their life stories when they have seldom, if ever, discussed their secret life, and explaining what external evidence they might have, or be able to get. Now that discretion can no longer be used in the UK to refuse asylum, almost all of the people we work with who are refused, either by the Home Office or the courts, are refused because their identity is not believed

5 As some European countries still insist that LGBTI asylum seekers can return home and be discreet, I would like to point out, in non-legal terms, what discretion actually is. Someone who has grown up in a country where they are despised for their sexual or gender identity learns both to despise themselves and to hide who they are they learn to be very successful liars, as that is their only way to survive. When they approach the authorities in Europe for protection, they are told that they must at all costs tell the truth and we and other NGOs that support them spend a great deal of our time, helping them learn to feel safe telling the truth and explaining why the truth is the only way that they have a chance of being granted asylum. The authorities then say to them, thank you for telling me the truth, I believe that you are LGBT or I, but I am telling you to go back to your home country and become a liar again. How absurd and cruel is that? Becoming a liar again, for many of those we work with means in practice an absolutely non-negotiable insistence on getting married to someone of the opposite gender of course. The experience of UKLGIG is, that in order to build a system where LGBTI asylum seekers are treated fairly, you need: A government committed to it s obligation to protect refugees and in particular committed to protecting LGBTI asylum seekers, A decision-making agency within that government committed to its responsibility to make fair and well-informed decisions, Judges in the courts, either independent as in the UK, or who are part of government decision-making, who are committed to their responsibility to make fair and well-informed decisions, NGOs committed to representing and supporting LGBTI asylum seekers. The most important thing I can say to you today is that TRUST between all these groups is the most vital factor. A fair and just system can only be created when that trust exists. If that trust does not exist, then it is part of your responsibility to build it. We have just produced our second piece of research as a follow-up to Failing the Grade looking at both judges decision-making and Home Office decisions 3 years on from training. It is to be launched on Monday, but I have a few copies if anyone would like to see it. In keeping with the relationship we have built with the Home Office, we sent them a pre-release copy and the Deputy Director, Operational Policy replied: 5

6 We both thought it was a good and balanced report which provides us with a sort of road map for some of the improvements we would like to make going forward. I am very grateful to you for the open and productive way you have been prepared to work with us - it has been really great to have a positive relationship with you. It cannot be expected that decision-makers, whether they are the government authorities or the courts, will understand what the numerous issues are for LGBTI asylum seekers coming from countries where they are persecuted, and from cultures so different from European cultures. When Stonewall interviewed lesbian and gay decision-makers within the Home Office, it became apparent that they were no more aware than their straight colleagues and sometimes, had bizarre expectations that asylum seekers would know things that are very specifically part of UK LGBTI culture. Neither can we expect NGOs, even LGBTI NGOs, to understand what life is like and has been like, for these people. It has taken us many years of working with hundreds of people from across the globe to develop that understanding. There is therefore an essential need for all decision-makers and those working with LGBTI asylum seekers to be trained. I would like to read you what some judges in the UK have said about our organisation and our clients: The organisation has in place a screening process in order to identify those who may not be genuine..in light of her general experience and the Appellant s responses to questions put, Ms Power believed that the Appellant is a gay man. That belief carries a degree of force, in my view. She also confirms that the Appellant has attended all UKLGIG legal and social events since December This is indicative of someone with a genuine commitment to the organisation and its aims. I am prepared to accept that it was his introduction to UKLGIG which prompted the Appellant to gain confidence and find his feet as it were, here in the United Kingdom. UKLGIG is there precisely to offer support to asylum seekers and would-be asylum seekers. It is plausible that the Appellant would have met other gay men through his attendance at meetings. It is credible that his new social life coincided with his involvement in UKLGIG. There is nothing suspicious about the Appellant not having had sexual relationships in the United Kingdom between 2008 and Gay men are not required to have sexual relationships in order to prove that they are gay, in the same way as heterosexual men are not so required in order to show that they are straight. Before us we heard the evidence of the Executive Director of UKLGIG which largely we found credible. The issue of how the assessment of a person s sexual orientation is made is complex and whilst it is accurate that there can be no simple test, what was described to us was a format upon which the organisation supported claims such as the Appellant s and the basis upon which others are rejected. 6

7 we are prepared to accept in light of the various reports.that people who have been working with her over the last 18 months or so (people in our opinion who have the necessary expertise) have formed the opinion that the Appellant is a lesbian. It is noticeable that the UKLGIG have not assisted the Appellant in his claim. The Appellant sought to explain this in oral evidence to me by saying that they do not carry out one-to-one work. That is plainly false as can be seen by the which the organisation sent to the Appellant s solicitors. UKLGIG are obviously careful not to be used by people seeking to make false claims. They are not prepared to give out letters to confirm that someone has been to one of their meetings, as that is of no value in indicating someone s sexual orientation. What they are prepared to do in genuine cases is offer one-to-one support. I am now going to say something that some people might find difficult. If you as government authorities and immigration judges are going to engage with NGOs to have a better understanding of how to do your job well, then you should choose the NGOs you work with carefully. The best NGO is one that is regularly and over an extended period, engaging directly with LGBTI asylum seekers. That might be an organisation made up of asylum seekers and refugees or one like ours that is a combination of lawyers, refugees, volunteers and experienced workers. The motivation of any organisation that government and court decision-makers decide to work with should be, to be the voice of asylum seekers if no such organisation exists in your country, use the informal groups that asylum seekers themselves build. Watch out for NGOs where: an individual is seeking a reputation, the organisation is seeking a reputation, the organisation has a political agenda of its own that is not about protecting LGBTI asylum seekers, genuine organisations with a belief that anyone who says they are LGBTI should be protected, organisations that are making money out of LGBTI asylum seekers, organisations that do not trust the decision-making system and assist people to present false stories believing that is what is needed, organisations that exist to lobby for LGBTI rights but do not have any direct contact with asylum seekers. A note too about lawyers, although they are extremely useful in assisting organisations and LGBTI asylum seekers, they must defend any client, even when they have suspicions about their genuineness. 7

8 When we started out, we were certain that those who were not genuine were a very tiny proportion of those claiming asylum as LGBTI people. Sadly, the better your asylum system becomes at assessing LGBTI claims, the more open to abuse it will be. It makes us, and genuine LGBTI asylum seekers, very angry that the rights LGBTI people have fought for over hundreds of years, and sometimes lost their lives for, are being abused by straight people - particularly by straight people from cultures where they hate us, and who by doing so, make the system tougher for genuine people. Training to both understand LGBTI asylum seekers and beat this abuse can be done. If decision-makers understand, then they can ask the right questions. As we have become aware of an increase in false claims, we have had to become more and more sophisticated and reached a point where we are able to say that, despite the fact that there are many similarities in the stories of those who come from countries where LGBTI people are persecuted, if a person includes all the details we suggest they do, no two stories are the same. When bogus people attend our statements workshops, they become obviously angry when we say this. It no doubt also makes those selling stories angry to hear that this is our message the current value of a Ugandan story being 2,000. I am happy to discuss in detail anything I have talked about or additional issues such as Country of Origin information 3, Interpreters, Detention, Fast track decision-making, Relocation. However, if you want to understand exactly how to enquire into someone s sexual or gender identity, I should say that it takes us two hours simply nto tell asylum seekers how to write a statement and to explain everything that should be in there. It takes at least a one day training to understand what all the issues are for LGBTI asylum seekers and to know how to enquire into their sexual or gender identity sensitively but also in a way that enables a decision to be made as to their credibility. 3 COI Home Office has COI reports for 28 countries all containing LGBTI sections and Operational Guidance Notes for 32 countries all with LGBTI sections 8