Eddy Cosmas (centre) at NUS LGBT conference
Special report By Paul Canning from LGBT Asylum News.
A gay Tanzanian activist has had his asylum case rejected at the first hurdle because he's not been accepted as gay. His case has been determined as one which can be quickly decided and he's therefore been placed in the 'fast track' process and immediately detained.
His treatment sets up an unnecessary battle with the Home Office, is a textbook example of how not to judge a gay asylum claim and undermines the promises of change made by the British government.
Edson “Eddy” Cosmas is a young black openly gay man originally from Tanzania. He was attacked at a club in Zanzibar and then by police. His father threatened to kill him when he was discovered to be gay. He sent him for counselling and eventually sent him away, to the UK. After being here for a few years and after overstaying his visa he took the advice of others and applied for asylum.
Homosexuality carries up to life imprisonment in Tanzania and, although there is not much coverage in human rights reports of the situation for gay people what exists is similar to that elsewhere in sub-Saharan Africa showing the risk of discrimination, blackmail, violence from the community and the state. The experience Eddy relates isn't uncommon and it is near impossible in Tanzania as elsewhere for a gay man to live openly.
Following last July's Supreme Court decision, which ended the 'go home and be discrete' approach to gay asylum claims, UK Border Agency (UKBA) developed guidance for decision makers which highlights that they must apply the test which the justices laid down:
a) Is the applicant gay or someone who would be treated as gay by potential persecutors in the country of origin?
b) If yes, would gay people who live openly be liable to persecution in that country of origin?
c) How would the applicant behave on return? If the applicant would live openly and be exposed to a real risk of persecution, he has a well-founded fear of persecution even if he could avoid the risk by living discreetly.
d) If the applicant would live discreetly, why would he live discreetly? If the applicant would live discreetly because he wanted to do so, or because of social pressures (e.g. not wanting to distress his parents or embarrass his friends) then he is not a refugee. But if a material reason for living discreetly would be the fear of persecution that would follow if he lived openly, then he is a refugee. They are also told:
When interviewing an applicant, before assessing the credibility of an account and before deciding whether there is a need for protection, decision-makers should have an awareness of the status and treatment of LGBT individuals in the applicant’s country of origin.They are told to look at Home Office Country of Origin Information (COI) on LGBT in that country. None exists on Tanzania but they are also told not to take that to mean that LGBT are not persecuted just because no COI exists.
Their guidance explains how LGBT from countries like Tanzania:May struggle to talk openly about their sexual orientation. An open and reassuring environment will help to establish trust between the interviewer and the claimant, and should help the full disclosure of sensitive and personal information. Greater understanding of LGBT asylum seekers is supposed to have been reinforced through compulsory half day training which all Border Agents received earlier this year.
The guidance also explains that:Although an individual’s appearance or demeanour may have a bearing on the persecution suffered in the country of origin, stereotypical ideas of people – such as an ‘effeminate’ demeanour in gay men or a masculine appearance in lesbians (or the absence of such features) should not influence the assessment of credibility. Nor should an adverse judgement be drawn from someone not having declared their sexual orientation or gender identity at the screening phase. Because of the Supreme Court tests, interviewers are supposed to ascertain what would be the applicant's behaviour on return, i.e. would they 'live discretely' and if so why.
It appears that in Edson's case much if not all of this guidance has been ignored.
In looking at the situation of LGBT in Tanzania the agent, in the letter rejecting his claim, attempts to paint the existence of bars where gay men are known to be found and other gay meeting places and gay organisations as indicating that it is possible to be gay, albeit 'discretely'. Also, a lack of prosecutions is mentioned, presumably to suggest a lack of formal state repression and that it is 'safe' to return a gay man.
In interview, minor discrepancies in Eddy's statements are taken as totally undermining his credibility. Many relate to his sexual history.
Damningly, his attempts to explain how he would meet men for sex, in the words of the interviewer "in a conservative society like Tanzania", are taken as lacking credibility and - worse - taken as evidence which undermines his asylum claim based on the persecution and lack of state protection for gay men in Tanzania.
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