Homosexual Applicants for Asylum Can Constitute a Particular Social Group Who May be Persecuted on Account of Their Sexual Orientation

In That Context, the Existence of a Term of Imprisonment in the Country of Origin Sanctioning Homosexual Acts May Constitute an Act of Persecution Per Se, Provided That it Ii Actually Applied

An Applicant for Asylum Cannot be Expected to Conceal His Homosexuality in his Country of Origin in Order to Avoid Persecution

Court of Justice of the European Union, <>Thursday 7th October 2013

Pursuant to a European directive1, which refers to the provisions of the Geneva Convention2, any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country may claim refugee status. In that context, the acts of persecution must be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights.

X, Y and Z are nationals of Sierra Leone, Uganda and Senegal respectively. They seek refugee status in the Netherlands, claiming that they have a well-founded fear of being persecuted in their countries of origin by reason of their sexual orientation. Homosexual acts are a criminal offence in those three countries and may lead to serious punishment, from heavy fines to life imprisonment in certain cases.

The Netherlands Raad van State (Council of State, Netherlands), which is hearing the cases at final instance, has asked the Court of Justice about the assessment of applications for refugee status under the provisions of the directive. The national court asks the Court of Justice whether third country nationals who are homosexuals may be regarded as forming a 'particular social group' within the meaning of the directive. Furthermore, it wishes to know how the national authorities should assess what constitutes an act of persecution against homosexual activities in that context, and whether the criminalisation of those activities in the applicant's country of origin, which may lead to imprisonment, amounts to persecution.

In its judgment today 07/11/13, the Court of Justice considers, first of all, that it is common ground that a person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. In that connection, the Court recognises that the existence of criminal laws specifically targeting homosexuals supports a finding that those persons form a separate group which is perceived by the surrounding society as being different.

However, in order for a violation of fundamental rights to constitute persecution within the meaning of the Geneva Convention it must be sufficiently serious. Therefore, not all violations of the fundamental rights of a homosexual applicant for asylum will necessarily reach this level of seriousness. In that context, the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of the directive. However, a term of imprisonment which accompanies a legislative provision which punishes homosexual acts may constitute an act of persecution per se, provided that it is actually applied.

In those circumstances, where an applicant for asylum relies on the existence in his country of origin of legislation criminalising homosexual acts, it is for the national authorities to undertake an examination of all the relevant facts concerning that country of origin, including its laws and regulations and the manner in which they are applied. In carrying out that examination, those authorities must determine, in particular, whether, in the applicant's country of origin, the term of imprisonment provided for by such legislation is applied in practice.

As to whether it is reasonable to expect that in order to avoid persecution an asylum seeker should conceal his homosexuality in his country of origin or exercise restraint in expressing it, the Court replies that it is not. The Court considers that requiring members of a social group sharing the same sexual orientation to conceal it is incompatible with the recognition of a characteristic so fundamental to a person's identity that the persons concerned cannot be required to renounce it. Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.

Persecution of Christians (Middle East)
Freedom of religion is a fundamental human right. When citizens are prevented from enjoying that right, the social, political and cultural implications can be serious, as the debate will show. The loss of other human rights can swiftly follow. The debate is therefore important not only for Christians, but for all religious groups and minorities, and indeed for everyone seeking to live out the dictates of their conscience in worship, teaching, practice and observance, respectful of others' right to do likewise, and under the protection of a state striving to achieve that positive vision under the rule of law. That is a far cry from the reality for many Christians in the middle east.
Read more: House of Commons, <>Westminister Hall Debate

Asylum Research Consultancy (ARC) COI Update Volume 66
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 23rd october and 4th November 2013  - Volume 66  </> here . . .

Probe of G4S and Serco Tagging Contracts Begins
The Serious Fraud Office (SFO) says it has opened an investigation into the government's contracts with G4S and Serco for tagging criminals. It comes after an audit suggested the firms had been charging for tagging criminals who were either dead, in jail or never tagged in the first place. In July, the government had asked the SFO to consider carrying out an investigation into G4S. G4S said it would co-operate fully with the SFO investigation.
Read mor: BBC News, 04/11/13

Continuing Conflicts That Create Refugees - October 2013

3 actual or potential conflict situations around the world deteriorated and none improved in October 2013, according to the new issue of CrisisWatch

Deteriorated Situations: Bangladesh, Kashmir, Mozambique

Download the full report <> CW123.PDF

Mozambique: former rebel group RENAMO announced it would abandon the 1992 peace that ended the country's fifteen-year-long civil war. Clashes between government forces and RENAMO throughout October reportedly left over 60 dead.

Bangladesh: supporters of opposition Bangladesh Nationalist Party (BNP) clashed with police and supporters of the ruling Awami League (AL), leaving twenty dead and hundreds injured. The BNP called for mass demonstrations and a general strike to demand that general elections in January should be overseen by a neutral caretaker government – a call rejected by Prime Minister Sheikh Hasina. Sentences handed down by the country's International Crimes Tribunal to two senior BNP politicians – one for death and another for life imprisonment – for crimes committed during the 1971 war of liberation further inflamed tensions.

Kashmir: India and Pakistan continued to exchange fire across the Line of Control in Kashmir with fatalities on both sides, despite an agreement by the countries' leaders in September to halt attacks. India claimed that Pakistan fired at over 50 border posts on 24 October, in what it called the most serious violation yet of the 2003 ceasefire.

Unchanged Situations
Afghanistan, Algeria, Armenia, Azerbaijan, Bahrain, Bangladesh, Bolivia, Bosnia, Burundi, Cameroon, Central African Republic, Chad, China/Japan, Colombia, Côte d'Ivoire, Cyprus, DR Congo, Egypt, Georgia, Guatemala, Guinea, Guinea-Bissau, India (non-Kashmir), Indonesia, Iran, Iraq, Israel-Palestine, Kashmir, Kazakhstan, Kenya, Korean Peninsula, Kosovo, Kyrgyzstan, Lebanon, Liberia, Libya, Madagascar, Mali, Mauritania, Mexico, Mozambique, Myanmar, Nagorno-Karabakh (Azerbaijan), Nepal, Niger, Nigeria, North Caucaus (Russia), Pakistan, Philippines, Rwanda, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tajikistan, Thailand, Tunisia, Turkey, Turkmenistan, Uganda, Uzbekistan, Venezuela, Western Sahara, Yemen, Zimbabwe

Improved Situations: None / Conflict Risk Alert: none

November outlook: Conflict resolution opportunity none, Risk alert none

EU Border Control Policies Negatively Affect Human Rights
"The EU externalisation of border control policies has a deleterious effect on human rights, in particular the right to leave a country, which is a prerequisite to the enjoyment of other rights – most importantly, the right to seek asylum", said today Nils Muiznieks, Council of Europe Commissioner for Human Rights, while releasing a research paper on the right to leave a country.

"The right to leave a country is enshrined in most major human rights instruments and is intended to ensure that people can move freely, without unjustified obstacles. However, today's EU approach to border controls and immigration raises serious concerns as it leads to changes in the legislation and practice of third countries which may result in human rights violations, in particular regarding the right to leave a country, the prohibition on collective expulsion and the right to seek and enjoy asylum."

Measures which raise concerns as to their compliance with human rights include ethnic profiling at border crossing points, sanctions on carriers which do not carry out police work, confiscation of travel documents, readmission agreements and the highly problematic and unlawful practice of so-called push-backs, both at sea and on land.

"The result of such measures is particularly evident in the Western Balkans, where countries are pressured to reduce the number of their citizens applying for asylum in the EU under the penalty of seeing all their nationals subject to mandatory visa requirements. Not surprisingly, the authorities of some of these states are restricting the departure of individuals whom they consider at risk of applying for asylum, the vast majority of whom are Roma."

Between 2009 and 2012 only in "the former Yugoslav Republic of Macedonia" about 7 000 citizens of this state were not allowed to leave the country and passports have been regularly confiscated from those returned to the country by EU member states' authorities. In December 2012 a new offence was introduced into the Serbian criminal code making it harder for Serbians to seek asylum abroad.

An additional concern highlighted in the paper is that the EU funds detention centres for third-country nationals and encourages its neighbouring states to set up elaborate surveillance systems to make sure that their own citizens are staying put.

Finally, EU member states' border guards carry out operations at sea which are intended to keep people away from EU borders, as well as at land borders between third states for the purpose of making sure that third-country nationals never get to EU borders hundreds of kilometers away. "Notwithstanding the EU's commitment to human rights and fundamental freedoms, the compatibility of its border control activities with international and European human rights law is questionable. It is time that EU border control policies become more respectful of human rights standards, as well as more transparent and accountable".

Nils Muiznieks, EU Commissioner for Human Rights, <>06/11/2013

Early Day Motion 675: Political Repression In The Maldives
That this House condemns the selling of teargas, stun grenades and rubber bullets by the British company Survitec to the repressive Maldives police force; notes that the Maldives police force prevented the re-run of the presidential elections in that country in October 2013; further notes that the massive consignment was exported by a Singapore-based subsidiary of Survitec, thus escaping UK arms controls; and demands that the Government introduce legislative proposals to prevent the evasion of arms controls in this way by British companies.

Sponsors: Galloway, George - <>House of Commons: 05.11.2013

Early Day Motion 670: Female Genital Mutilation (No. 2)
That this House expresses concern that there is a need for stronger action to prevent the crime of female genital mutilation (FGM); notes the report by a coalition of health professionals calling for FGM to be treated as child abuse; further notes the action plan on tackling FGM published by the Director of Public Prosecutions, Keir Starmer; calls for implementation of the recommendation in the report and action plan that evidence of FGM in the family should be collected and used to identify persons who may be at risk of FGM; further calls for examination of the reporting duties for medical professionals and teachers in referring possible FGM cases to the police; and further calls on the Government to formulate a strategy to raise awareness of this issue.

Sponsors: Vaz, Valerie/ Bottomley, Peter / Evans, Nigel / Durkan, Mark
<>House of Commons: 05.11.2013

EDM 674: Homeless Families In Bed And Breakfast Accommodation
That this House notes with deep concern that the number of homeless families with children living in bed and breakfast accommodation is at a 10-year high; understands that, according to the housing charity Shelter, 2,090 families are living in this emergency housing, an increase of 8 per cent on 2012; further notes that 43,000 homeless families with children were living in other forms of emergency temporary accommodation, usually privately-rented flats, and that this is an increase of nine per cent on last year; and concludes that the Government's so-called welfare reforms are damaging the country's most poor and vulnerable families and children.

Sponsors: Galloway, George - <>House of Commons: 05.11.2013

Early Day Motion 666: Vulture Funds
That this House welcomes the impact of the Debt Relief (Developing Countries) Act 2010 in preventing vulture funds taking an estimated £145 million from developing countries; further welcomes the passing of similar laws in Jersey, Guernsey and the Isle of Man; notes that vulture funds are trying to force Argentina to default on its debt through a legal case in New York; further notes that vulture funds are making large profits on Greek debt repayments owed under UK law, despite other creditors agreeing a reduction in the amount they are owed; is concerned that vulture funds are preventing the fair implementation of debt restructuring; and urges the Government to share its experience of legislating on vulture funds with the US administration, bring forward legislative proposals to prevent vulture funds ignoring international agreed debt restructuring for Argentina and Greece in UK courts, and support the creation of a fair, independent and transparent arbitration mechanism for sovereign debt.

Sponsors: Gwynne, Andrew / Beith, Alan / Leech, John / Whiteford, Eilidh / Lucas, Caroline - House of Commons: 04.11.2013

Yarl's Wood Inquiry Witness to be Deported Without Police Interview

The only witness to an alleged case of sexual misconduct at Yarl's Wood immigration removal centre is to be deported, without being given the opportunity to testify to police. Sirah Jeng was detained on Thursday inside the centre, hours before a scheduled interview with police. Jeng alleges she witnessed a male Serco employee having sexual contact with a detainee. She has been given five days' notice of deportation, the minimum period required, and is to be sent back to the Gambia on Tuesday. Campaigners accuse the Home Office of attempting to "silence" Jeng by removing her from the UK before she can be questioned by officers.

The 59-year-old told lawyers that she saw a Serco employee kissing a 23-year-old detainee called Tanja last year in Yarl's Wood. CCTV footage corroborates her testimony. Jeng is thought to be the only eyewitness to the alleged sexual contact and is therefore crucial to an ongoing investigation by Bedfordshire police into abuse allegations at Britain's largest immigration removal centre for women. Three Serco staff have been dismissed over Tanja's allegations, which her lawyer, Harriet Wistrich, believes amount to misconduct in public office.
Read more: Mark Townsend, <> The Observer, 02/11/13

Prisoners: Foreign Nationals [979 immigration detainees in prison]

Michael Dugher: To ask the Secretary of State for Justice how many foreign national prisoners who have completed their sentences are resident in prisons in the UK. [168870]

Mr Harper: I have been asked to reply on behalf of the Home Department.

For the week commencing 9 September 2013, there were 979 immigration detainees in prisons.

Please note that the data includes a small number of individuals who have never served a custodial sentence. These individuals present specific risk factors that indicate they pose a serious risk of harm to the public or to the good order of an Immigration Removal Centre (IRC), including the safety of staff and other detainees, which cannot be managed within the regime applied in IRCs.

In-order to extract the small number of cases who have not served a custodial sentence would incur a disproportionate cost as this would involve looking at individual records.

<> House of Commons: 31 Oct 2013 : Column 546W