Reasonable Excuses for seeking asylum in UK

 Among defence recently submitted in support after the refusal of a large number of Sinhala asylum appeals on humanitarian grounds, is the ground of threat to life and liberty due to sexual orientation, an understandable fear of persecution.

by Victor Cherubim 

( January 21, 2017, London, Sri Lanka Guardian) There has been a surge in the number of Sri Lankans of Sinhalese origin claiming asylum in the UK since the new government took office and a new era was ushered in Sri Lanka in 2015, setting out a path of major reform. Alleged and identified supporters of the previous “Rajapaksa government,” who arrived in UK under various “pretences” are now claiming asylum rights.  These Sri Lankans say they fear persecution on return, perhaps rightly.

Why are apparently so many of Mahinda’s UPFA supporters in UK? Why are they claiming asylum knowing full well that they hardly have a cat in hell’s chance in today’s May’s Government in UK. Is it a strategic move of the JO to export them abroad to bide time. Whatever the motive, it smacks of tactics similar to what the LTTE did with the Tamil diaspora years ago?

The extent to which these claimants have gone to produce documentary and verbal evidence of fear of reprisals is boundless. Defence Counsels in UK also are known to raise perhaps, unjustified fears in court in justification of their claims on return. Judgments by the European Court of Justice are often adduced, but it appears lack of sufficient justification of proof of ill-treatment on return “as failed asylum seekers”, is at issue. Most appeal refusals also have had difficulties of communication of nuisances in Sinhalese. Many if not most of these appellants are solely and exclusively dependent on seeking the interpretation service process offered. But, apparently is the Sinhalese, if not a coterie, who are heading the list of asylum appeals recently?

A shift in asylum seekers

Since the end of the ethnic war in 2009, the number of Sri Lankan Tamils seeking refugee status in UK has considerably reduced, but not altogether diminished. Before it was Tamil ethnicity and deterioration in the security situation which was the contributory factor and more so the compelling factor. Art.3 of the European Convention of Human Rights which stipulated “fear of torture or inhuman or degrading treatment or punishment” on return was the main ground of appeal.  Known widely as the embracing law on asylum appeal, with no exception or limitation on this right, it no longer is the choice or material ground of appeal after the end of war. But cases drag on over years due primarily to administrative reasons.

Who can claim asylum?

“To qualify as a refugee, the UK Border Agency (UKBA) an arm of the Home Office must consider that there is reason to fear persecution if returned to country of origin because of race, religion, nationality, social and/or political group or opinion”.

“Alternatively one may have other humanitarian or compelling reasons why there is need to stay in the UK, the denial of which may violate human rights under the European Convention of Human Rights”.

Treatment of gay, lesbian or bisexual refugees from many nations has been highlighted in the UK in recent months following revelations that one asylum seeker was asked “shockingly degrading questions,” by the authorities. Though authorities can question on sexual orientation, they are now restricted and cannot directly ask about sexual practices. According to a further ruling by the European Court of Justice, “those who claim asylum on ground that they are homosexual, need not have to undergo tests to prove it”.

Among defence recently submitted in support after the refusal of a large number of Sinhala asylum appeals on humanitarian grounds, is the ground of threat to life and liberty due to sexual orientation, an understandable fear of persecution.

Grounds of Appeal 

An anomaly in Sri Lanka is that the British colonial established Civil Procedure Code on sexual orientation continues to remain on the statute book; arguably it has hardly been enforced in practice. This 134 year old archaic law and its removal and amendment is one among other pre conditions demanded by the EU recently for reinstatement of the GSP Plus, which was withdrawn from Sri Lanka on 15 August 2010. As many now know, there is widespread dissent in attempts to decriminalise and recognise homosexuality. LGBTQ is in the news, so anything is possible?

Sri Lankan appeals understandably are hesitant to contest this ground. Trans-gender issues however have all sprung up.  The main ground in asylum appeals from some but not all Sinhala applicants is on the basis of “breakdown of marital relations while estranged wife and children” remain in Sri Lanka.  The espoused fear of persecution on return of the appellant could arouse severe ostracism and family rejection on this ground. The question of Home Office making public use of the determination and of whatever information given in support of the claim is at risk, as documents are passed on to Sri Lanka, unless, a Tribunal makes orders prohibiting disclosure.

General right of appeal 

The general right of appeal is for either the appellant or for the Home Office for a judicial review. 

“In cases where an applicant for any asylum or leave to enter or remain has been refused and the Appellate Authority has upheld that decision, this information can usually be considered to be in the public domain, unless an anonymity order has been issued.”

It is common knowledge that the Court of Appeal/Tribunal hearing these cases in UK is mostly guided and decisions guided by the most recent UK Foreign and Commonwealth Office’s Country Report on Sri Lanka, It is here noted that the last update is 31 March 2013. This has undoubtedly been a double edged sword for most asylum appeal applicants.

Besides, judgment is hardly delivered on basis of hearsay evidence on ground of breakdown of marital relations of applicant. What matters is what the learned Appeal Judge construes as the outcome, if the appellant was returned to Sri Lanka on verification of what is the stated Government of Sri Lanka position on safety of return as seen on record by the Home Office and verified by the Country Report. There are no juries in asylum appeals.

Civil lawyers arguing cases for Sri Lanka Sinhala gay asylum claimants are at a great disadvantage. Many cases get dismissed and appellants returned without guarantees and perhaps to an uncertain future.

What nobody talks about is the mental pain and suffering of the appellants marriage partner and/or family back in Sri Lanka who have lost a husband or a father through the asylum process in UK.

The diversity of sexual orientation 

Though appreciating the diversity of sexual orientation as a ground for appeal in the UK asylum process, there is also a sub conscious fear among the British judiciary, Home Office authorities and even Counsel that unscrupulous applicants could well use this excuse as a modus operandi to remain as economic migrants in UK, which is perhaps, a contentious issue, but a deciding factor.


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