33 Bedford Row Barristers Dr S Chelvan, Head of Immigration and Public Law, leading Dr Tariq Mahmood, instructed by Kashif Iqbal of Primus Solicitors (Manchester) appeared for the 33-year-old lesbian appellant from Bangladesh before the Upper Tribunal (Upper Tribunal Judge Sheridan, Home Office withdrawal of case application granted at hearing on 13 September 2021).
The appellant (AN) has provided consent for publication of the details within this Note, waiving any relevant legal privilege in order for this document to be relied upon in other applications/proceedings by third parties, where relevant.
Home Office Granted Application to Withdraw Their Case before the Upper Tribunal, Accepting Open Lesbians Are At Risk of Persecution in Bangladesh:
Subject to security checks the appellant, ‘AN’, will be granted refugee status within 28 days following the Home Office accepting their April 2020 published policy position that open lesbians are not at risk, compared to an accepted risk profile to openly gay men, is not lawful in light of one other refugee status grant of a lesbian from Bangladesh in June 2021, who happens to be the appellant’s girlfriend. Due to this ‘new evidence’, provided to AN’s solicitor days before the hearing, the Home Office on 10 September 2021, a working day before the substantive hearing, withdrew the negative 2018 decision refusing the appellant asylum.
The relationship between the appellant and her girlfriend has no bearing on the reliance by the appellant on this positive grant for the appellant, as reliance is only placed on the proposition of law recorded in the June 2021 Grant Minute for her girlfriend, who was accepted to live openly of returned, thereby accepting risk to open lesbians. This evidence was determinative in the Home Office applying to withdraw the August 2018 negative asylum decision. Most importantly, the Home Office applied to withdraw their case before the Upper Tribunal, as this evidence in granting refugee status was to a lesbian from Bangladesh, they accepted would be open, and on this basis persecuted on return. This positive grant of refugee status caused the Home Office case before the Upper Tribunal to collapse, contrary to their now unsustainable litigation position opposing the appellant’s appeal based on their April 2020 CPIN report.
The Original Proceedings before the FTT to the Court of Appeal (April 2019 to August 2020):
In her original April 2019 First-tier Tribunal (‘FTT’) determination the appellant (‘AN’) was found credible with respect to her sexual identity as a lesbian, based on the Home Office acceptance in the August 2018 negative asylum decision (first limb of the binding guidance on asylum claim determination in HJ (Iran)/HT (Cameroon) [2010] UKSC 31 [para 82]). The appellant at the February 2019 hearing adopted her witness statement, was not cross-examined, as the Home Office case was based on no law prohibiting sexual activity between two women in Bangladesh. On this basis her evidence in her statement of modification of conduct on return due to her fear of violence was evidence not challenged by the Home Office (final limb of HJ (Iran)).
The FTT dismissed AN’S appeal on the single remaining second limb of Lord Rodger’s guidance, finding there is no real risk of persecution for open lesbians in Bangladesh, as there is no evidence of prosecution.
This FTT determination was upheld by the Upper Tribunal on appeal, including in parts where the UT reopened the issue of her conduct on return. Henderson, LJ granted permission on the papers on 13 February 2020, finding the second appeals test had been met, on the basis the issue of risk to lesbians was a matter to be determined, and the risk to the appellant if living openly in Bangladesh was a compelling reason.
The 4 August 2020 Agreed Consent Order remitting the case back to the Upper Tribunal (having set-aside the earlier UT determination) ordered [paragraph 3] (emphasis added with respect to words specifically inserted by the Home Office):
“The appeal is allowed to the extent that the Upper Tribunal determination of 27 June 2019 be set aside and the matter be remitted to the Upper Tribunal before a differently constituted Upper Tribunal to determine substantively (the First Tier Tribunal material error of law being agreed amongst the parties), the single issue of the country evidence relating to the second limb of Lord Rodger’s binding guidance at paragraph 82 of HJ (Iran) v SSHD [2010] UKSC 31 with reference to the Respondent’s most recent CPIN on Sexual Orientation, Gender Identity and Expression was published in April 2020.”
The Home Office litigation position in not granting refugee status to the appellant, was based on their policy position, i.e. the April 2020 SOGIE CPIN on Bangladesh, a report failing to identity a single-named ‘open lesbian’ in Bangladesh (total population of Bangladesh, just under 170 million (13 September 2021)).
There are no reported, or Country Guidance cases, on risk to those who are LGBT+ from Bangladesh, even though the murder to two gay journalists in 2016 attracted global media attention (six members of an Islamist group were sentenced to death for their murders on 31 August 2021, two of those sentenced are not in custody) risk to openly gay men has been accepted since the 2016 murders (see 31 August 2021 New York Times article).
The UT declined to list the appeal as a potential country guidance case, even though there are no reported cases addressing the ‘Double-bind’ risk of lesbians based on their sexual identity, and gender, for over 5 years (AR and NH (India) in 2016 and SW (Jamaica) in 2011). It was clear to the appellant’s legal team the Home Office did not wish there to be a binding precedent determination with respect to risk to lesbians from Bangladesh.
Advocate Sara Hussain, a prominent and respected human rights Barrister based in Dhaka (called to the UK Bar in 1989, Middle Temple), provided a detailed country expert report filed on 2 September 2021. The report analysed the April 2020 Home Office CPIN report, and addressed sources cited in the April 2020 CPIN and additional case examples to evidence a lack of ‘open’ lesbians in Bangladesh due to risk of forced marriage, violence, establishing risk on return to open lesbians. This led to an invisibility of open lesbians in Bangladesh.
The substantive hearing was scheduled to be heard on 13 September before Upper Tribunal Judge Sheridan, who has presided over two CMR Hearings, and three sets of Case Management Directions, where the Home Office maintained their position - the appeal should be dismissed, based on the April 2020 CPIN.
On 9 September 2021, the appellant mentioned to her solicitor that her girlfriend had been granted refugee status. The appellant’s girlfriend, a lesbian from Bangladesh, had named the appellant and their relationship during her substantive asylum interview, Papers were forwarded to her solicitor, then the UT and Home Office last Friday. The Home Office, in their Grant Minute had accepted the
appellant’s girlfriend would be open on return, establishing acceptance of risk to open lesbians from Bangladesh (the fact they are in a relationship is irrelevant to the objective risk to the identified Refugee Convention group).
On the basis of the ‘new evidence’ (possessed by them since the June 2021 grant of status), the 2018 negative protection decision was withdrawn, and an `(unopposed) application by the Home Office was made to ‘withdraw their case’ (Rule 17(1) of the 2008 Upper Tribunal Procedure Rules). Noting the Home Office case was that open lesbians are not at risk of persecution in Bangladesh, this September 2021 decision means the April 2020 CPIN cannot be used to refuse refugee applications by lesbians/bisexual women on the basis of a lack of real risk of persecution in Bangladesh. Risk to open lesbians from Bangladesh is now an accepted position of the Home Office, and this Note is specifically drafted to ensure this point is published, notwithstanding a lack of judicial determination.
Whilst there is no determination to be promulgated on risk to lesbians in Bangladesh, let alone a reported determination, following the Home Office withdrawing their case before the UT, it is hoped the Home Office urgently review their published CPIN reports, and publish on the CPIT website they do not rely on a negative interpretation of risk to lesbians in Bangladesh. But the call for Urgent Action is not only with respect to Bangladesh.
Call for Urgent Action by the Home Office with respect to unreliable CPIN reports – Kenya, Sri Lanka and now Bangladesh:
Dr Chelvan’s Independent Reviewer’s report on Home Office SOGIE Country of Origin (COI) reports, filed in February 2020, incorporated as an approximately 400-page Annex to the Independent Chief Inspector’s September 2020 report, published in December 2020 with the Home Office response to the report(s). Dr Chelvan made a total of 10 recommendations, six were fully accepted by the Home Office, two were partially accepted.
Since Dr Chelvan’s February 2020 report, the Home Office has published CPIN reports on Bangladesh (April 2020), Kenya (April 2020), and Sri Lanka (30 September 2020), with the Home Office in this case no longer accepting a negative risk assessment of lesbians in Bangladesh. But the decision to withdraw was primarily based on the positive grant of refugee status in June 2021, to a lesbian from Bangladesh. What would have happened, if by fate, this ‘successful’ refugee had not been the appellant’s girlfriend?
Kenya – April 2020 Kenyan SOGIE CPIN should not be relied upon:
With respect to Kenya and Sri Lanka, Judges of the Tribunals have allowed appeals, specifically rejecting the approach of the Home Office in the relevant published April 2020 Kenyan SOGIE CPIN. On 24 June 2021, the FTT allowed the appeal of the Gay Kenyan rugby player Kenneth Macharia, after a five-year battle with the Home Office to prove that he was at risk, when the published CPIN did not accept the May 2019 Kenyan High Court judgment (EG and ors v. Attorney General) amounted to persecution when the Court in upheld the criminalisation of consensual gay sex, as otherwise gay people would start living together conflicting with the 2010 Kenyan Constitution definition of marriage as being between a man and a woman (Article 45 (2) of the 2010 Constitution). Ken’s victory has attracted national and international media coverage. The FTT Judge allowing the appeal reviewed the 2019 Kenyan High Court judgment, accepting this as part of the evidence of risk on return to openly gay men, highlighting the evidence recorded in the judgment of assault and violence towards the LGBT+ community in Kenya.
The Home Office had relied on for the 2021 FTT proceedings the 2018 Kenyan Court of Appeal judgment reversing an earlier High Court judgment finding forced anal examination of gay men as constitutional. This COI is relied upon in the current CPIN. The 2021 proceedings arose following a fresh claim for asylum made in 2018, following a dismissed appeal before the FTT in December 2016. If the 2016 High Court judgment upholding constitutionality of forced anal examinations by police officers had been placed before Ken’s December 2016 Tribunal, then it is arguably have been a positive determination allowing his appeal (single adverse point made by the FTT was a finding of no risk to openly gay men). This provides further evidence of lack of thorough and reliable COI research by the Country Policy and Information Team (‘CPIT’), at the Home Office.
Sri Lanka – 30 September 2020 CPIN SOGIE report -incomplete and out-of-date:
The Home Office September 2020 SOGIE CPIN on Sri Lanka fails to provide a review of the relevant COI in the public a domain (2018 Police Performance report evidencing legal of prosecutions of gay men, where the 2015 CG case of LH and IP held there had not been a single prosecution since independence in 1948). This was only changed the CPIN reports in 2018, following the November 2016 Sri Lankan Supreme Court judgment in Galabada, upholding the constitutionality of the 2003 prosecution and sentencing of two gay men to gross indecency for 12 months. The Sri Lankan Supreme Court held a first-time offence for gross indecency should be 24 months, and not 12 months, but in the cases of first-time offenders (with no criminal record) sentences should be suspended for five years to provide them ‘an opportunity to reform’ (interpreted by judges in the FTT and UT as conversion therapy, with the 2016 judgment accepted as evidence of persecution of openly gay men, even though the Galabada judgment deals with only two prosecutions, now known to be much larger due to the recorded statistics in the 2018 Police Performance report (page 36)).
This 30 September 2020 SOGIE CPIN report is additionally out-of-date, as within a month of the 30 September 2020 publication, there are October 2020 reports, including a Human Rights Watch report, evidencing forced anal examinations of perceived gay men (and one report of forced vaginal examination of a trans man) by judicial officers.
For the Home Office to operate a decision-making process with public confidence, refugee applicants and appellants should not have to rely on ‘pure luck’ to reverse a strategic and policy position adopted to refuse and then subsequently oppose appeals before Immigration Tribunal Judges.
For the original Upper Tribunal and Court of Appeal proceedings, Dr Mahmood was instructed as Sole Counsel. Dr Chelvan led Dr Mahmood for the remitted proceedings before the Upper Tribunal.
To access the Court of Appeal 13 February 2020 grant of permission, and the 4 August 2020 Agreed Consent Order remitting the appeal, please click here:
To access the 33 Bedford Row Insight page for the Kenneth Macharia June 2021 positive appeal determination, please click here.
To access the 33 Bedford Row Insight page on the December 2020 publication by the Home Secretary of the Independent Reviewer’s February 2020 report on Home Office SOGIE COI, please click here.
To access Dr Chelvan’s March 2021 paper on the Home Office September 2020 CPIN report on Sri Lankan SOGIE filed with the Home Office NASF-Equality Sub-group meeting, please click here.