Man with learning disabilities threatened with deportation because Government did not believe he was gay

24 Sep 2018

The British government did not believe that an asylum-seeker who was fleeing homophobic persecution in Bangladesh was gay because he had learning disabilities. Buzzfeed recently published the article below on the case. Allan Briddock represented Kabir.

A cache of legal documents shows that the Home Office rejected an application from the 23-year-old — whom we will call Kabir to protect his anonymity — because, the department told him: “You have failed to explain how you, at the mental age of 6, would be sexually active.”

The Home Office also refused to accept how Kabir, who is also physically disabled, has a mental illness, has been disowned by his family, blackmailed, assaulted, and threatened with murder, could go to an LGBT charity for help if he had the cognitive abilities of a 6-year-old.

Therefore, officials concluded, “You have failed to show that you are a homosexual man.”

The government continued to fight Kabir’s application for asylum over six years, including two appeals and a judicial review. The Home Office’s decision to reject his claim was finally overturned in July. In a scathing ruling, the judge said officials had used “absurd” and “feeble” arguments and failed to take key medical evidence into account. These included two psychological reports identifying his intellectual and emotional capacities.

Kabir had cited his sexual relationship with another boy at school as evidence of his homosexuality — which is illegal in Bangladesh. People seeking refugee status on the grounds of sexual orientation must prove that they are lesbian, gay, or bisexual. And, although he had also described the abuse, violence, threats, ostracism, and extortion he had endured because of this relationship, both a judge and a Home Office representative ruled that “inconsistencies” in his accounts of these events rendered them unbelievable.

This was despite Kabir having significant cognitive impairments that can inhibit his ability to understand questions, retain facts, and recount events — and which are so severe that an IQ test could not be performed on him. At one asylum hearing, an interpreter was employed throughout who used words that were not in Kabir’s mother tongue. And his barrister, Allan Briddock, told BuzzFeed News that when Kabir does not understand, he simply agrees with whatever is being said.

In a case that exposes the government’s handling of learning disabilities and the multiple barriers for an individual with cognitive impairments trying to navigate the asylum system, Briddock said it also raises questions about officials’ attitudes towards homosexuality — eight years after the government promised change.

In 2010, when Theresa May was home secretary and David Cameron was prime minister, the government pledged to stop deporting gay asylum-seekers back to countries where they would be in danger. Just weeks later, the Supreme Court ruled that the Home Office had to stop telling asylum-seekers they could return to their country of origin by hiding their sexual identity. This cemented the right of LGBT people to seek refugee status.

But Briddock said his client’s case reveals a deepening flaw in the immigration system: that despite the theoretical improvements, increasing numbers of people are being blocked from justice, as legal aid cuts since 2013 hamper their chances of decent legal representation.

“This is a really good example of a system really failing,” he said.

In January, as public anger at the government’s “hostile environment” strategy on immigration was mounting as a result of the Windrush scandal, the Home Office refused Kabir’s application for the final time, having already threatened to deport him back to Bangladesh where, according to his legal papers, he faced being the target of an “honour killing” for being gay.

Briddock said Kabir’s eventual victory in the case, which was fought by three successive law firms and with the help of a clutch of individuals supporting Kabir — carers, interpreters, and charity workers — was not an endorsement of the system but rather “a matter of luck”. Were it not for one worker at an organisation for LGBT asylum-seekers who realised that Kabir needed extra help — and found it for him — Kabir “would have been removed”.

Following months of discussions with Briddock during the case — he obtained consent from Kabir, his professional organisation, and Kabir’s solicitors and carers — BuzzFeed News visited Kabir at his home in south London. With the help of an interpreter and his carer and landlady, Maria, Kabir spoke about what he has suffered and why he still lives in fear.

Read more here