On Scotland and LGBT Ugandans

It’s been widely reported in the British and international press that the Scottish government is “offering asylum” to LGBT Ugandans, following a letter written by Scotland’s Minister of External Affairs, Humza Yousaf, in which he pledges to welcome “any Ugandan” affected by Uganda’s homophobic legislation. This is a hugely encouraging move and should be supported, but its actual effect has been misunderstood. Unfortunately, the minister’s statement does not mean the beginning of a safe haven in Scotland for LGBT people facing violence.

Under the current devolution arrangements, the Scottish Government does not have power to grant anyone asylum – immigration control is a matter which is reserved to Westminster and administered centrally by the Home Office, headed by avowedly anti-immigrant Tory Home Secretary Theresa May. The minister’s pledge of support therefore doesn’t affect the legal position. (Obviously, this would change were Scotland to become an independent country, as it may do in the future.)

In theory, the law is that an asylum-seeker who would be persecuted on return to their home country because of their sexuality is entitled to asylum under the Refugee Convention. This was confirmed by the 2010 decision of the UK’s Supreme Court in HJ (Iran) and HT (Cameroon), in which it was held that gay and bi people who would have to stay in the closet on return to their home country for fear of violence were entitled to asylum – before then, the Home Office used to reject claims on the ground that LGBT people could safely live “discreetly” in their countries of origin.

However, actual practice is very different. In reality, what the Home Office and many immigration judges do is to refuse to accept that LGBT asylum-seekers are actually telling the truth about their sexuality or gender identity. Most are disbelieved, and many are asked humiliating questions laced with homophobic stereotypes and wrong assumptions. The great majority of LGBT asylum claims are rejected, and large numbers of LGBT asylum-seekers are in fact deported to places like Uganda, Cameroon and Iran because the Home Office will not accept that they are really LGBT – often after long periods of detention in hellhole “immigration removal centres” like Yarl’s Wood. Some, like Jackie Nanyonjo, die as a result.

The UK’s immigration system is profoundly hostile to asylum-seekers, by design. Claims are decided in the first instance by caseworkers at the Home Office, who reject a high proportion of asylum claims, often accusing asylum-seekers of lying about what has happened to them. A whistleblower in 2010 revealed that the culture of Home Office staff was strongly prejudiced against asylum-seekers, with managers making racist comments and pressuring caseworkers to reject claims. Some asylum-seekers are held in detention centres on the “Detained Fast Track” while their claims are processed, with very short periods in which to lodge appeals and prepare cases. Others are allowed to live in the community, but are not allowed to work and have to live on NASS support of £36 a week, far less than a British person on benefits. Once refused asylum, they don’t get any cash support, and many end up destitute on the streets.

When the Home Office rejects a claim, there is a right of appeal to the Tribunal where the case is heard before an immigration judge. The burden is on the asylum-seeker to prove their case, and many are disbelieved, with some judges doing a very poor job of taking into account factors such as youth, cultural misunderstandings, and post-traumatic stress. As a result, many people who have apparently credible and reasonable asylum claims are refused asylum, and detained in detention centres pending forcible return to their home country. Conditions in detention are notoriously awful – especially at Yarl’s Wood, where women are detained, and where there has been a long history of abuse, including sexual harassment, assault, and medical neglect.

It remains to be seen whether an independent Scotland would have a less hostile and xenophobic immigration policy. But for the time being, the UK does not offer a safe haven to most LGBT asylum-seekers. It’s up to us, whether English or Scottish, to campaign to change this.

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Everyone should read this expose of Australian detention conditions by a former employee of Serco, the private company which runs Australia’s immigration detention facilities.

The same dehumanising and brutal culture prevails in Britain, where Serco runs Yarl’s Wood, detaining hundreds of women – many of them rape survivors, torture survivors, and sufferers from physical and mental illness – in appalling conditions, exposed to sexual and physical abuse by male guards and denied adequate health care. Most are asylum-seekers who have been through the hell of the asylum claims system, forced to relive their most traumatic experiences and treated as though they were liars. This is the true effect of anti-immigrant laws. Yesterday evening I attended a rally outside the Home Office in solidarity with the women detained at Yarl’s Wood, and had the privilege of listening to refugee women and their supporters speak out against the institutionalised abuse of women detainees.

The only solution to abuse in immigration detention is to end immigration detention; to end the iniquitous system in which some people are labelled “illegal” and treated as less-than-human by the state. No one’s civil rights should depend on the accident of their birth, and no one should be locked up for seeking sanctuary outside the country of their birth.

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Justice for immigrants: a reply to Kwasi Kwarteng

I made the mistake of opening the Evening Standard on the Tube and was confronted with this thoroughly disingenuous editorial from Conservative MP Kwasi Kwarteng. As an immigration lawyer and activist, I felt obliged to respond to several assertions which don’t reflect the way the immigration system actually works, or the cruelty it inflicts on marginalized people.

In the past, French Huguenots and Russian Jews came to London to escape religious and ethnic persecution. Today’s migrants are largely economic.

Really? How does he think he knows this? Many people, in fact, come here to claim asylum – fleeing religious, ethnic or other persecution, including rape, sexual violence and torture, just as past groups of refugees did. (And people with a mindset similar to his were making anti-immigrant arguments in those days, too.) He might retort that he thinks many of those asylum claims are ill-founded. But there’s no way of knowing that. One certainly can’t measure it by Home Office decisions, which, as any immigration lawyer could tell you, are frequently entirely arbitrary, and proceed from the unfounded assumption that every asylum-seeker must be lying. (Has Mr Kwarteng read anything about how hostile Home Office officials treat LGBT asylum-seekers?) Nor are immigration judges in the Tribunal much better. People like Jackie Nanyonjo face a culture of disbelief and hostility, and forcible return to countries where their lives are at risk. The asylum system is a cruel farce which victimises migrants, especially women and LGBT people; it certainly can’t be relied upon as a barometer of how many asylum claims are truthful.

In any case, even if today’s migration *were* wholly economic, why would this be an argument against it? Why should people from countries where the average wage is $10 a month, countries where they can’t feed their children, countries which have been exploited and plundered for centuries for the benefit of the West, not be allowed to come here to seek a better life? Why should anyone be consigned to poverty because of the circumstances of their birth? Why do British people deserve a vastly higher standard of living than Congolese, Zimbabwean or Afghan people?

And those he would consider “economic migrants” no doubt also encompasses those who are reliant on health care in this country and would die on return. The Home Office has repeatedly fought in the courts to deport severely ill people to countries where they will receive no medical care and die within weeks or months – and it has almost always won.

The real problem with immigration comes with the perception that people are coming to Britain simply to benefit from the lavish welfare state Britain provides… The Left are appalled at such a suggestion but the evidence suggests that this actually happens.

No it doesn’t. Non-EEA migrants without immigration status don’t actually qualify for social security benefits. At most, those who have claimed asylum and are not detained get NASS support of £36 a week, far less than a British person on benefits would get – and they are dependent on this not because they don’t wish to work but because they aren’t allowed to. Failed asylum-seekers get no cash at all, just “section 4 support” which is deliberately designed to be impossible to live on. Many end up homeless and destitute on the streets, a deliberate policy of government to deter migration.

As for EEA and other migrants, the evidence has consistently shown that most come here to work and earn money, not to live off the state – and that migration is a net contributor to public finances. “Benefits tourism” is a myth.

Most people intuitively understand this.

Which is an elegant illustration of the problem with relying on intuition and uninformed public opinion rather than facts.

The problem, as is often the case, has been with the enforcement of existing rules. People are denied the right to remain in Britain and then, in many cases, they simply disappear… People, like Mark Harper’s cleaner, bluff and defy court judgments and simply stay in Britain illegally.

Because the existing rules are so arbitrary, brutal and uncompromising that they have no other choice. Plenty of people who don’t succeed in an asylum claim do in fact have a fear of persecution on return – like Jackie Nanyonjo, the Ugandan lesbian woman whose asylum claim was refused and who was brutally beaten by her security escort on her removal flight to the point that she died of her injuries after return. Plenty more have family ties here but don’t succeed in an Article 8 claim because the bar is set so high. Plenty more would simply face destitution and starvation on return – which, under the current law, is not treated as a justification for remaining here.

And he says nothing about the harsh and brutal enforcement of existing rules – the institutionalised abuse and neglect of detainees in privately-run detention camps like Yarl’s Wood and Harmondsworth, the forcible deportations, the spot checks and racial profiling. No one familiar with Britain’s immigration enforcement apparatus could justly say it was not harsh enough.

A points system for immigrants, like that practised in Australia, has always seemed to me a good idea. Rather belatedly, the Labour government between 2008 and 2010 introduced such a system. The problem with it was that it didn’t have a cap on numbers.

There are few things more patently classist than the points-based system – which is set up to exclude the poor and those without higher qualifications, while providing easy routes of entry for “entrepreneurs” and “high net worth individuals”. In no other context would we accept institutional, systematic discrimination on the basis of wealth. Yet somehow immigration is exempted from every liberal idea about equality.

They see no reason why people should come to Britain without any prospect of employment and simply live off the state.

And yet no one does so by choice. Those on NASS or section 4 support are forced to “live off the state” because they are not legally allowed to work. Overwhelmingly, migrants who are allowed to work do in fact do so – at a higher rate, indeed, than British nationals.

The public’s hostility to immigration is, sadly, informed by myths and misunderstandings such as those peddled by Mr Kwarteng. I hold out little hope that many people will seek out the true facts

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A brief thought on migration and the hierarchy of privilege

Britain’s immigration laws intentionally create a kind of hierarchy of privilege, based on the accident of birth: with British citizens at the top, then EU nationals and their dependants, then foreign nationals who are “non-visa nationals” (mostly from affluent developed countries), and then, facing the greatest barriers to entry, foreign nationals who are “visa nationals” (mostly from developing and/or refugee-producing countries). Within this, the structure of the rules which apply to admission of non-EU migrants, through the “points-based system” for economic migration and through the stringent rules that now apply to family reunions, is carefully designed to privilege those who are wealthy and can pay their own way, while excluding poor people. Meanwhile, while Britain nominally adheres to its international treaty obligations, in practice the state seeks to deter people in need from coming here to claim asylum or humanitarian protection, both by making it as hard as possible for them to get here in the first place – through visa requirements, carrier sanctions and border policing – and by detaining them in hellhole “removal centres” and treating them with great cruelty once they arrive.

This isn’t an accidental feature of the system; it’s entirely by design. Given this, how can anyone deny that the system of immigration control is racist and classist? Discrimination isn’t an incidental or unforeseen effect of immigration control, it’s built into the fabric of the system at every level. It’s telling that the Equality Act contains an “immigration exception” explicitly allowing immigration authorities, unlike other public authorities, to discriminate on the basis of “ethnic and national origin” – otherwise the whole system of immigration control would have to be regarded as a breach of equality principles, as indeed, in a less awful world, it would be.

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White Cloth and Emeralds

The year was fading, the sunlight was weak,
The woods in the winter were withered and bleak,
And your songs were all darkened with pain;
For you dwelt upon words that were twisted to hate,
And our love was forsaken by bitterest fate,
And your demon had broken his chain.

The fire was dying, the embers grew cold,
Your smile was deepened by sorrows of old;
O, do you still love me today?
You cast off your raiment and opened the door;
Your white cloth and emeralds fell to the floor
As the sun in the west died away.

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The dawn is cold and still and clear,
The ground is crisp with morning frost;
We wake, all torn by grief and fear
And longing for the life we lost.
Light candles in the window-pane,
Adorn the trees with Christmas gold;
Our fleeting comforts wax and wane;
The day is young, the year grows old.
We youthful lovers yield and sigh,
And know that our flames, too, shall die.

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I wish you’d seen that bleak December dawn
Beside the road from Harmondsworth to hell,
And looked upon the bitter years to mourn,
And heard the distant toll of Christmas bell.
Where were the angels bent on hov’ring wing?
No heaven-born joy could light the lonely plain,
But just one cracked and ragged voice to sing
Beneath the cold grey skies and winter’s rain.
Though all the works of man shall turn to dust,
Yet I shall do as I believe I must.

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