‘Openly gay’ asylum seeker’s fresh claim to remain in UK due to ‘risk of persecution’ in Zimbabwe dismissed

A Zimbabwean asylum seeker whose human rights claim to remain in the UK was refused by the Home Secretary has had an application for judicial review of a decision that he had not made a fresh claim to remain in the country dismissed.

The petitioner “GC” argued that, as an “openly gay” man, he would be faced with a “real risk of persecution” if returned to his home country.

But a judge in the Court of Session ruled that new material produced to support the further submissions made would not entitle an immigration judge to reach a different conclusion from the respondent.

‘Spike in violence’

Lord Bannatyne heard that the petitioner entered the UK in April 2016 and subsequently made an asylum claim, but his application was refused by the respondent in September 2017.

After his appeal to the First-tier Tribunal was also refused, the petitioner made further submissions in February 2019, but the respondent determined that the submissions did not amount to a fresh claim.

In challenging that decision, counsel for the petitioner relied on new material in the form of internet news articles which showed a “spike in violence” towards gay people in Zimbabwe at the time of the respondent’s decision, which in turn demonstrated that the petitioner as an openly gay man would be at “real risk of persecution” if returned there.

The Country Guidance indicated that the police did not provide protection to gay people and suggested that openly gay men may be at increased risk.

It was argued that the spike in violence would allow homophobic elements within Zimbabwe to persecute gay people without the fear of intervening, meaning they could “act with impunity”. 

It was submitted that having regard to the new material, although the respondent had asked the correct question in determining the fresh claim, there had been a failure to apply “anxious scrutiny” to the new material.

The petitioner’s position was that the new material, when properly analysed, showed a “realistic prospect of success” before an immigration judge.

‘No realistic prospect of success’

Refusing the petition, the judge considered that the petitioner’s arguments were “misconceived”.

In a written opinion, Lord Bannatyne said: “As stated in the Country Guidance the police do not provide protection to gay people. Accordingly there is a complete absence of linkage between the spike in violence and any increase in risk to the gay community and thus to an openly gay person such as the petitioner. 

“The position remains as is set out in the Country Guidance so far as gay persons in Zimbabwe are concerned. Accordingly, I conclude that the new material could not result in there being a realistic prospect of an immigration judge concluding that the petitioner would be exposed to a real risk on his being returned to Zimbabwe.”

He added: “There is, I believe, a further fundamental difficulty with the position advanced on behalf of the petitioner. The new material has no relationship to the personal circumstances of the petitioner. 

“The articles which refer to a spike in violence in Zimbabwe make no express reference to any violence or increase in violence towards gay people in Zimbabwe. Only two of the articles refer to incidents involving gay people.

“Beyond that 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 properly be drawn.”

The judge concluded: “On the above analysis the immigration judge would be bound to follow the Country Guidance and the petitioner would be bound to fail. There is nothing in the new material which would entitle an immigration judge to take a different view from that of the respondent. Accordingly, there is no realistic prospect of success before an immigration judge.

“For the above reasons, I believe that the respondent has applied anxious scrutiny to the whole of the new material presented by the petitioner. When the reasoning of the respondent is looked at as a whole, it is adequate to entitle her to reach the conclusion arrived at.”

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