Access (finally) Granted: Gay rights activist wins 13 year asylum battle

The commonly held belief that the number 13 is an unlucky one doesn't seem to apply to Aderonke Apata, who, after 13 years of battling against the Home Office, has had her right to remain in the UK granted. This decision comes after a troublesome few months for the Home Office, who also recently lost in the Supreme Court. That decision struck a killer blow to the 'deport first, appeal later' policy, my article on which, can be found here. The rules surrounding immigration and asylum are somewhat complex, and this is often lost when being reported by major news outlets.

The facts within this case are relatively straightforward to understand. Aderonke Apata, who is aged 50 years old, claimed that she was persecuted in Nigeria on the basis of her sexuality. She also claimed that she knew that she was gay from the age of 16. It should be noted that Aderonke Apata is recognised internationally for her human rights work, so much so that she has received numerous awards.

It is clear from a Government document that provides country Information and guidance (this includes many countries and can be seen on the relevant Government website here.) entitled: "Nigeria: Sexual orientation and gender identity" that those in the LGBT+ community are at risk of persecution. This is one of the five requirements needed to satisfy the definition of a "refugee" for the purposes of the 1951 Refugee Convention. There is very little protection available to those in that particular group, nor is there any possibility of internally relocating on the basis that it is the state that is the oppressor.

To put this case into context, consideration needs to be given to the findings of the report. It has been reported that "Nigeria is a religiously and culturally conservative country where homophobic attitudes... are widely held." In a survey conducted in 2013, as many as 98% of Nigerians stated that they believe ‘homosexuality’ should not be accepted by society, while both state and media rhetoric is anti-LGBT. One prime example of the main current issues in Nigeria, which merely exacerbates the situation, is the controversial Same-Sex Marriage (Prohibition) Act 2013. It follows that unless one is both of extreme privilege and lives within one of the large cities where openness about sexuality is possible, most same-sex relationships do tend to remain secret, and this is due to social stigma and the fear of violence, discrimination and arrest as a result.

At paragraph 1.4 the report concludes by stating that:

"Same sex sexual acts are criminalised and since the enactment of the Same Sex Marriage (Prohibition) Act in January 2014 there have been a number of arrests of LGBT persons, although there are few reports of prosecutions and individuals being sentenced specifically under anti-LGBT legislation."

Returning to Aderonke Apata's case. She first arrived in the UK in 2004. However, she did not immediately claim asylum on the grounds of her sexuality. This is where the complexity of the case comes in. In such circumstances, the Home Office can argue that because the application wasn't made promptly, it goes to harm the 'credibility' of the Claimant in such proceedings. The argument under Section 8 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is that the person claiming asylum did not make their application at the first reasonable opportunity (usually, this will be at the air/seaport).

It should also be noted that until recently, LGBT asylum seekers were often forcibly removed to their home countries if it was deemed safe for them to “live discreetly”. This obviously causes problems on a number levels, the main one being that oppressed persons would not be able to live their lives freely and happily as they choose to. This position, however, has been remedied by various case law, and it is quite clear that this is no longer a valid reason to refuse an asylum claim.

Apata filed an asylum claim in 2012, but was considered by the Home Office to be lying about being in a lesbian relationship, which is a common reason for refusal of such claims. Having appealed, Abata was harshly told by the judge that she had "presented herself as a lesbian solely to establish a claim for international protection in an attempt to thwart your removal." Not accepting the decision, a new appeal was scheduled for late July 2017, the Appellant's (Apata’s) legal representatives intended to call 11 witnesses to support the claim for asylum, hwich included: well known human rights campaigners and even politicians. The Home Office firstly requested an adjournment on the matter to be heard, and as we have seen time and time again from the Executive, made a massive U-turn, having decided to grant Apata refugee status.

Some of the commentary on the case can be found in the Guardian's piece on the case here. In particular, Aderonke Apata's barrister said:

“Aderonke’s case highlights the Home Office’s approach to sexual identity asylum claims is still not fit for purpose. In asylum claims, the negative history is in part a product of a system in the UK that still dehumanises LGBTQ+ applicants by continuing to detain, isolate, stigmatise and harm some of the most vulnerable groups in our society. We must demand change, starting at the highest level.”