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.