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Asylum seeker held not ‘effeminate’ enough to be gay had partner accepted as gay by same court

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Immigration judges accused of inconsistency

An asylum seeker told by a judge that he didn’t seem “effeminate” enough to be gay has a partner already accepted as gay by the same immigration tribunal, his barrister has said.

Rehana Popal of 10 King’s Bench Walk said that the case demonstrated the inconsistency of immigration judges in such cases.

Popal’s client, whose identity is confidential, hit the headlines this week after Legal Cheek revealed that he was deemed to have an insufficiently gay “demeanour” by an immigration judge.

According to Popal, the First-tier Tribunal judge compared the man unfavourably to another asylum seeker who “wore lipstick and had an effeminate way of looking around the room”. The lack of stereotypically gay attributes counted against Popal’s client, who argues that he is persecuted abroad on account of his sexuality and needs asylum in the UK.

It has since emerged that the man’s partner went through the same process at the same tribunal earlier this year — and won.

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Popal told Legal Cheek that she had also represented the man’s partner in the First-tier Tribunal. The case succeeded “on very similar evidence”, with a different judge accepting the partner’s claim to be gay.

“This”, Popal said, “demonstrates the inconsistent decision making in the First-tier Tribunal when considering something so subjective as sexuality”.

The decision to grant asylum to one half of the couple but not the other may yet be reversed. The “effeminate way of looking around the room” judgment was overturned on appeal to the Upper Tribunal earlier this month and the man will have a second bite of the cherry in the First-tier Tribunal at a date to be decided.

Around 40% of asylum claims where persecution based on sexuality is an issue succeed on appeal, according to experimental government statistics published yesterday . That is lower than the average for all asylum appeals, which is 44%.

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25 Comments

Anonymous

On one hand, refugees often take advantage of our tolerance and should not be given leniency. On the other, the astounding homophobia displayed here is out of place in 2019.

Anonymous

True. In my experience fewer individuals seeking to dupe the Home Office/FTT cite homosexuality. Too difficult to maintain the ruse. Converting to Christianity is quite a popular one with Iranians at the moment.

Anonymous

Whatever lie gets you in the easiest I suppose. These economic migrants do not seek asylum in their first safe nation they entered. That by itself should disqualify their applications.

Jonathan and David

This is just another form of homophobia. I am the least “gay” person you could imagine- and my husband would agree.

Anonymous

So this country has to take all of the Muslim worlds gays, Christians and and dissenters now?

Anonymous

Guys, guys, given the historic burden of guilt that the UK owes to the world for such things as slavery, colonialism and homophobic laws, we have a duty to accept all asylum seekers who are oppressed in their homelands.

There should be a burden of proof that is on the state to disprove the characteristic claimed.

It should not be for the applicant to prove.

This country owes it to the world to be a safe haven for all who want to come here to escape persecution.

Anonymous

Is it really appropriate to be talking to the press in this way?

There are legitimate channels. IF there is a genuine issue.

Anonymous

In a free country the proper administration of justice is everyone’s concern so going to the press when a judge acts inappropriately seems like an entirely “legitimate channel.” Our courts make judgements in public for a reason – it’s a check on unjust and poorly reasoned decisions such as this.

Anonymous

We don’t know whether the judge has acted inappropriately. We used to believe in due process.

You enjoy mob justice if you want to, I shall remain deeply disturbed by this individuals actions.

Anonymous

But when there is no transcript and no ability for the judge to respond it seems a little one-sided.

Londoner

Sigh. I understand that these are truly hard cases. After all, how do you determine beyond reasonable doubt someone’s sexuality? It is also true that perhaps some asylum seekers abuse the system by insisting that they are gay/trans/etc. just to be almost guaranteed a safe haven here in the UK. That being said, not every gay man wears lipstick, dresses in pink and listens to Britney. There are plenty of very masculine gay men who would not pass such a test.
I would not wish to be in the judge’s position on such delicate cases, but at the same time I cannot help but thinking that homophobia and stereotypical assignment of certain behaviours took the best of the judge here. Clearly some psychological evaluation by an experienced sexologist should be a standard here? (please correct me if it already is, admittedly I do not know much on the topic)

Anonymous

In an asylum appeal the standard of proof is a mere real risk, or reasonable degree of likelihood.

Anonymous

It should be far higher. Too many bleeding liberals.

Anonymous

Alleged partner. Get him on a plane.

Anonymous

please get yourself on a plane

Anonymous

Alleged partner. That’s the point.

Anonymous

Well I guess there’s one way they could both prove they’re gay in front of the judge 😂

I should be so lucky

Ask him to name his top 5 Kylie hits?

Anonymous

It’s amazing how much money you’ve raised by begging online…

Anonymous

If a judge with outdated views can’t believe he’s gay, why would anyone in his country of origin think so?

Anonymous

As jaded as I am about the practice of immigration law, whether or not people in an appellant’s country of origin can tell what the appellant’s sexual orientation is, with reference to stereotypes or not, is not relevant to their case.

Further, those same stereotypes cannot be applied by a judge in determining whether the sexual orientation of an appellant is as claimed. That would constitute a grossly unfair application of one’s own preconceptions (prejudices) to the case.

Anonymous

I’ve recently worked in immigration law and the amount of fake ‘gay’ applicants from Islamic countries is outrageous. The staged photos at Pride and gay clubs in Soho is an absolute insult to the genuine LGBTQ community and I say this as a straight male. Solicitors are in blatant collusion with this farce and it needs to stop!!!

Anonymous

Immigration law always seems to be what people end up doing after 5 years paralegaling/looking for pupillage/getting nowhere. Papers at midnight, being blatantly lied to everyday by clients, hatred by the general public and terrible remuneration.

No, I don’t think you will have ‘shown them all’ at the next school reunion when you brag about what you do for a living.

Anonymous

We are far too soft on asylum cases. if someone cannot prove their first foreign point of entry was the UK they should be put back to whatever country they entered the UK form and until and unless they happened they should be jailed. Any asylum applications should be a rapid, administrative process without any public legal funds being wasted. So many economic migrants lying about being this or that qualifying category of the season…Gay is the new Chinese Christian.

Anonymous

Omg you just solved immigration and asylum in less than 100 words!!!!!!! Whatever is the faff about!!!!! dh.

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