A GAY Zimbabwean man is facing deportation back to his home country where homosexuals are often persecuted after a Scottish judge refused to allow a judicial review into his case.
It is believed to be the first immigration case to be judged before Scotland’s highest civil court since Priti Patel became Home Secretary at the end of July – unlike several cases involving her predecessors, this one was won by the Home Office.
The man, known only in court as GC, had sought asylum in the UK in 2016 and was refused by the Home Office in September 2017.
The immigration tribunals twice kicked out his case, and he appealed again at the time when there was a “spike” in violence in Zimbabwe, but the Home Office said his submissions did not constitute a fresh claim.
GC went to the Court of Session in Edinburgh to ask for a judicial review of this last decision, and late last week Lord Bannatyne issued his judgment refusing the petition.
Human rights lawyer, advocate Alan Caskie, represented GC and said there was new material which showed his client would be at risk if he was returned to Zimbabwe – deportation is the usual consequence of asylum being refused.
According to Lord Ballantyne’s written judgement, the advocate pointed to the judgement of the First Tier Tribunal, which accepted that the petitioner wishes to live in Zimbabwe as an openly gay man.
Caskie referred to the Country Guidance which is used by the Tribunals to assess cases, and noted there was no guidance given as to what might be the extra factor which would mean that an openly gay man was at real risk of persecution in Zimbabwe.
Lord Bannatyne noted: “His position was in the present case that what he would come to describe as the spike in violence in Zimbabwe at the time of the challenged decision provided this extra factor which caused the petitioner as an openly gay man to be at real risk of persecution if returned to Zimbabwe.”
The judge continued: “Mr Caskie’s position was that he accepted that … being gay was not enough for the petitioner to be successful. However, he submitted that when the petitioner being gay and wishing to be openly gay was taken together with the new material showing the increase in violence in Zimbabwe, there was to show that he would be at a real risk if returned to Zimbabwe.”
A lawyer for the Home Office stated in court that there was homophobia in Zimbabwe, but it did not present a general risk to homosexuals, and in any event, it was open to people to internally locate. He rejected the contention that the new material about a spike in violence would increase persecution of homosexuals.
Lord Bannatyne concluded: “I do not agree with Mr Caskie’s submission that the spike in violence in Zimbabwe at the time of the challenged decision provides the additional necessary factor to cause an openly gay man, such as the petitioner, to be at a real risk of persecution upon his return to Zimbabwe.”
Referring to the new material, Lord Bannatyne agreed with the Home Office lawyer: “The new material on no view supports the contention that gay people are at a real risk of persecution because of the spike in violence. There is nothing explicit in the new material that supports this contention and nothing from which such an inference could be drawn.”
The judgement was issued on the day that the homophobic former dictator of Zimbabwe, Robert Mugabe, died in hospital in Singapore. – The National