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The DSSH Model and the Voice of the Silenced: Aderonke Apata—The Queer Refugee: “I Am a Lesbian”

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The Queer Outside in Law

Part of the book series: Palgrave Socio-Legal Studies ((PSLS))

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Abstract

This chapter offers a more prescriptive analysis of reform to UK law in order to create space within refugee law for “queer outsiders” who seek asylum. Drawing on his advocacy work with Aderonke Apata, a Nigerian lesbian who fought for asylum in the UK for thirteen years, the author shows how a new mode of bureaucratic engagement with people who seek asylum on the basis of their sexual orientation could ensure the law adequately protects LGB people. For the author, asking people about their differences (D), the way those differences are stigmatised (S), the extent to which the person experiences shame about those differences (S) and how those differences led to harm (H) is the best approach. Taking the Home Office to task for their prurient and homophobic questioning and adjudication of LGB people who seek asylum, this chapter proposes the DSSH Model as a more empathetic way to evaluate protection claims. The chapter suggests that rather than expect people to submit their lives to stereotype-based or identity-based questions, immigration decision-makers need to make room for asylum seekers to tell their own stories about what it means to be queer and persecuted. This would bring “queer outsiders” inside the space of legal recognition and protection.

Ethics approval granted by King’s College London in November 2017 as part of PhD in Law. There is no anonymity order in place.

Apata, Statement in support of fresh asylum and human rights claim, August 1, 2016 [1] (‘08/16 FCS’).

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Notes

  1. 1.

    See also “We Are Human—Manchester Declaration—We Are Human (June 21, 2017),” African Rainbow Family: LGBTI Equality, Last modified April 23, 2018, accessed March 21, 2020, https://africanrainbowfamily.org/2018/04/23/we-are-human-manchester-declaration/.

  2. 2.

    HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.

  3. 3.

    Laura Milliken Gray, Failing the Grade (London: UK Lesbian and Gay Immigration Group, 2010), accessed March 27, 2020, https://uklgig.org.uk/wp-content/uploads/2014/04/Failing-the-Grade.pdf. 98–99% of the 50 LGB asylum decisions analysed.

  4. 4.

    UK Lesbian and Gay Immigration Group, Missing the Mark: Decision Making on Lesbian Gay (Bisexual, Trans and Intersex) Asylum Claims (London: UK Lesbian and Gay Immigration Group, September 2013), 4 and 6, accessed March 27, 2020, https://uklgig.org.uk/wp-content/uploads/2014/02/Missing-the-Mark.pdf.

  5. 5.

    HJ (Iran) (n 4), [82] 596, 647E–F (Lord Rodger).

  6. 6.

    Appellant S395/2002 and anor v Minister for Immigration and Multicultural Affairs; Appellant S [2004] INLR 233.

  7. 7.

    Jenni Millbank, “From Discretion to Disbelief: Recent Trends in Refugee Determination on the Basis of Sexual Orientation in Australia and the United Kingdom,” The International Journal of Human Rights 13, no. 2 (2009): 391.

  8. 8.

    UKLGIG (2013) (n 6).

  9. 9.

    Calogero Giametta, The Sexual Politics of Asylum (Abingdon: Routledge, 2017), 84.

  10. 10.

    See for example, S. Chelvan, “Put Your Hands Up If You Feel Love,” Journal of Immigration, Asylum and Nationality Law 25, no. 1 (2011): 55; Mark Harper and others, Same Sex Marriage and Civil Partnerships: The New Law (Jordans, 2014).

  11. 11.

    R (Aderonke Adejumoke Apata) v Secretary of State of the Home Department [2016] EWCA Civ. 802. I obtained, in November 2017, ethics approval from the Ethics Committee at King’s College London for use of this material. In the case of other material including e-mails, they have been part of open correspondence, or found in the public domain and/or are not subject to legal privilege.

  12. 12.

    Reference to those who self-identify as gender-fluid or non-binary with respect to gender identity, or expression.

  13. 13.

    S. Chelvan and Gábor Gyualai, “Chapter XI: Asylum Claims Based on Sexual Orientation or Gender Identity,” in Credibility Assessment in Asylum Procedures: A Multidisciplinary Training Manual Volume 2, edited by Gábor Gyulai (Budapest: Hungarian Helsinki Committee, 2015), 59–91. See also S. Chelvan. ‘Migrant Law Clinic: Episode Two: LGBT+ Asylum: The Emotional Journey and the DSSH Model.’ No5 Barristers’ Chambers, broadcast September 15, 2020. Accessed 25 September 2020, http://www.youtube.com/watch?y=R5lhliw1djg&t=931s.

  14. 14.

    United Nations High Commissioner for Refugees, International Protection Guidelines No. 9 Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity Within the Context of Article 1A (2) of the 1951 Refugee Convention and 1967 Protocol (Geneva, UNHCR, October 23, 2012), 15 [62].

  15. 15.

    UK Home Office, The Home Office Response to the Independent Chief Inspector’s Report: ‘An Investigation into the Home Office’s Handling of Asylum Claims Made on the Grounds of Sexual Orientation’ March–June 2014 (London: Home Office, 23 October 2014), accessed March 27, 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/365654/ResponseAsylumClaimsBasisSexualOrientation.pdf.

  16. 16.

    UNHCR, Beyond Proof: Credibility Assessment in EU Asylum Systems (Geneva: UNHCR, May 2013), 71–72, 71, accessed March 27, 2020, http://www.unhcr.org/51a8a08a9.pdf.

  17. 17.

    Nicole LaViolette, e-mail message to author, June 11, 2012.

  18. 18.

    For a detailed critique of the processes before the UK tribunals, see John R. Campbell in Bureaucracy, Law & Dystopia in the UK Asylum System, edited by Satvinder S. Juss (London: Routledge, 2017). Campbell in Chapters 3 and 4 of his book addresses case preparation (bar detailed analysis of statement preparation) and in Chapter 5, the work of Immigration Judges. Campbell does not address claims based on sexual identity within the HJ (Iran) framework.

  19. 19.

    Example drawn from author’s practice since 2001 (emphasis stressed when saying these words).

  20. 20.

    Tim Heap, “Attitude Pride Awards: The Human Rights Lawyer Defending LGBT Asylum Seekers From Deportation,” Attitude magazine, July 7, 2018, accessed August 18, 2018, https://www.attitude.co.uk/article/attitude-pride-awards-the-human-rights-lawyer-defending-lgbt-asylum-seekers-from-deportation/18411/. Danila Stepin’s story, “He was introduced by a friend to Chelvan, who then spent three months putting together a case to secure his asylum claim.”

  21. 21.

    Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

  22. 22.

    JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ. 878, [2009] 1 WLR 1411.

  23. 23.

    Public funding is available for those seeking asylum as long as they meet the funding and merits tests. Nevertheless, this funding is extremely limited, and the number of legal aid lawyers is limited. This approach relies on the good will of legal aid lawyers to work for no pay in order to fully prepare an application and/or appeal. Contrary to what is recorded by Campbell (2017), lawyers do work over and above the constraints of legal aid (Controlled Legal Representation) and will meet appellants prior to the day of the hearing in order to address matters arising in the appeal, thereby avoiding meeting for the first time on the day of the hearing. See Campbell (2017) (n 20), Chapters 3 and 4.

  24. 24.

    Senthorun Raj, “A/Effective Adjudications: Queer Refugees and the Law,” Journal of Intercultural Studies 38, no. 4 (2017): 453.

  25. 25.

    Toni A.M. Johnson, “On Silence, Sexuality and Skeletons: Reconceptualizing Narrative in Asylum Hearings,” Social & Legal Studies 20 (2011): 57, 66–69.

  26. 26.

    Jordan Keene and Aydan Greatrick, Improving Service Provision for Non-Normative Refugees and Asylum Seekers in the UK: Recommendations for Policy and Practice (London: Centre for Transnational Development and Collaboration, November 2017), accessed August 19, 2018, http://ctdc.org/wp-content/uploads/2017/11/LGBT-Asylum-Seekers-Policy-Brief.pdf, (6)2 “[a]ny individual whose sexual practice or gender performance challenges or subverts social norms … [who] may not be able to or want to identify with identity categories such as LGBT.” See also Aydan Greatrick, Queer (Im)mobilities and the ‘Refugee Crisis’: Examining Stakeholder Responses to Sexual Minority Refugees in Turkey (UCL Migration Research Unit Working Papers No. 2017/1, London, 2017).

  27. 27.

    The 1951 Refugee Convention and 1967 Protocol.

  28. 28.

    Apata originally intended to seek refuge in Canada. ‘It was my intention to go to Toronto in Canada. Sincerely I did not want to come here. I had to pick up my luggage here otherwise I would not be here’ ([2.21] May 11, 2004—Screening Form level 2—claim for asylum).

  29. 29.

    See media reporting of Aderonke’s success (e.g.) Diane Thompson, “Nigerian Gay Rights Activist Wins UK Asylum After 13 Year Battle,” The Guardian, August 14, 2017, accessed February 5, 2018, https://www.theguardian.com/world/2017/aug/14/nigerian-gay-rights-activist-aderonke-apata-wins-uk-asylum-claim-13-year-battle; Jack Ashton, “Nigerian Gay Rights Activist Who Judge Accused of ‘Faking’ Her Sexuality Wins 13-Year Legal Battle for Asylum in the UK,” The Independent, August 11, 2017, accessed February 5, 2018, http://www.independent.co.uk/news/uk/home-news/nigeria-gay-rights-activist-aderonke-apata-uk-asylum-granted-high-court-fake-sexulaity-lesbian-lgbt-a7888931.html; Meka Beresford, “Nigerian LGBT Activist Wins 13 Year Legal Battle to Be Granted UK Asylum,” Pink News, August 12, 2017, accessed February 5, 2018, http://www.pinknews.co.uk/2017/08/12/nigerian-lgbt-activist-wins-13-year-legal-battle-to-be-granted-uk-asylum/; Roxy Bourdillon, “Aderonke Apata: ‘I Felt Dehumanised When the Home Office Said I Was Pretending to Be a Lesbian’,” Diva magazine, August 15, 2017; and “Attitude Pride Winner Wins Asylum Bid to Stay in the UK,” Attitude Magazine, August 10, 2017, accessed February 5, 2018, https://attitude.co.uk/article/15599/attitude-pride-award-winner-wins-asylum-bid-to-stay-in-the-uk/ (no longer on-line).

  30. 30.

    Attitude Pride Awards 2017—Aderonke Apata (Attitude magazine: Youtube, Published July 24, 2017), accessed February 6, 2018, https://www.youtube.com/watch?v=tTu49PxAfMg: “After fleeing horrific abuse in Nigeria and seeking sanctuary in Britain, one asylum seeker hit the headlines when she was accused of lying about being a lesbian and had her application rejected. Now she is a vocal critic of the system and helps other queer applicants.”

  31. 31.

    Z v Secretary of State for the Home Department [2004] EWCA Civ. 1578, [2005] Imm AR 75.

  32. 32.

    HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 172, [2009] Imm AR 600.

  33. 33.

    UK Home Office, Country Information and Guidance: Nigeria: Sexual Orientation and Gender Identity (London: Home Office) [2.2.5] and [2.2.7], accessed February 3, 2018, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/566196/NGA_CIG_SOGI.pdf now replaced by April 2019 where witchcraft is no longer cited, Country Policy and Information Note: Nigeria: Sexual orientation and gender identity or expression.

  34. 34.

    Before the Tribunal (September 24, 2012), there was evidence relied on by Apata regarding further proceedings before the Sharia Court (p. 8) (IA/15464/2012) (promulgated on October 10, 2012): January 2012 letter from her former girlfriend [K] in Nigeria.

  35. 35.

    [8.2] (October 4, 2004 determination: Appeal Number: AS/1088/2004): “Aderonke Junoke Apata (aka Tina Ronke Apata) Appeal Heard: 1 September 2004 before Mr R Battersby, Adjudicator (Immigration Appellant Authority: Manchester) (Promulgated 4 October 2004).”

  36. 36.

    08/16 FCS’, [69].

  37. 37.

    Emily Dugan, Finding Home: Real Stories of Migrant Britain (London: Icon Books, 2015), 231, 239 ‘Chapter 9: Aderonke’. The narrative recorded by Dugan does not fully accord chronologically or factually with the narrative disclosed to her legal team, including referring in the same page to a 2011 marriage to a Nigerian man, an issue raised in the 2010 FTT determination, but rejected due to confusion of Apata at the hearing, but raised with respect to a marriage with a different man, this time with British nationality in March 2011.

  38. 38.

    Meremu Chikwendu, “Circular Consciousness in the Lived Experiences of Intersectionality: Queer/LGBT Nigerian Diasporic Women in the USA,” Journal of International Women’s Studies 14, no. 4 (2013): 34, 44.

  39. 39.

    08/16 FCS, [76].

  40. 40.

    08/16 FCS, [78].

  41. 41.

    Friend of Apata who knew her and of her relationship with her girlfriend ‘K’ in Nigeria.

  42. 42.

    Capital letters, and occasional underlining, used to ask and answer questions in this form.

  43. 43.

    Joined Cases C-148/13, C149/13 and C-150/13 (A, B and C) [2015] 2 CMLR 5.

  44. 44.

    No question-marks are found in the transcript at the end of each question, providing the inference in the author’s view that these were not questions to be asked and answered, but trigger statements used to support the rejection of the claim.

  45. 45.

    Question 2: Who did you live with in Nigeria: I lived with my late husband; Question 3: What happened to him: He was killed; Question 4: By whom was he killed [sic]: By the Muslim community where we lived and by his own family; Question 5: What was his cause of death. I was informed he was stabbed in heart after being caught by a gang of Muslims … Question 7: What year did the incident take place: 2006; … Question 10: Why was your husband killed: It was an “Honour” Killing because he had converted from Muslim to Christianity.

  46. 46.

    Gender of the interviewing officer is recorded to avoid a stereotypical assumption that this was a straight man fixated with the sexual activities of lesbians.

  47. 47.

    No question-marks are found in the transcript at the end of each question, providing the inference by me that these were not questions to be asked and answered, but trigger statements used to support the rejection of the claim.

  48. 48.

    NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ. 856, [2010] INLR 159 [22] (Goldring LJ) citing the factual findings of the 2008 Upper Tribunal (DIJ Shaerf): “We find that as a healthy, energetic and engaged young woman in such institutions she had and took the opportunity to continue her experimentations with her sexual identity: indeed, there was no alternative except celibacy.” The author was Counsel for the appellant at all stages including the remitted appeal, where it was held that she was “exclusively a lesbian” (Resident Immigration Judge Pinkerton).

  49. 49.

    Council Directive (2004/83/EC) on 29 April 2004 on minimum standards for the qualification and status of third country nationals and status of persons as refugees or persons who otherwise need international protection and the content of the protection guaranteed. Since January 31, 2020, the domestic The Refugee or Person in Need of International Protection Regulations 2006 (SI. 2006, no. 2525) apply the provisions of the Directive as retained law (see Section 2 of the EU [Withdrawal] Act 2018). Regulation 2 of the 2006 Regulations, providing the definition of a refugee in line with the Refugee Convention is found within paragraph 334 of the Immigration Rules, in force as of 11 February 2020: (ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006.

  50. 50.

    Charter of Fundamental Rights of the European Union, Official Journal L 83, 30.3.2010, P. 0389 – 0403.

  51. 51.

    ABC (2015), [64]. cf with the Upper Tribunal’s continuing (unlawful) reliance on SD (military service -sexual identity) Turkey CG [2013] UKUT 00,612 (IAC) where it seeks investigation on whether an individual is, or will be perceived as “passive” and thereby at risk of persecution during military service in Turkey (promulgated 5 December 2013), accessed August 24, 2018, https://tribunalsdecisions.service.gov.uk/utiac/2013-ukut-612.

  52. 52.

    UK Home Office, Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim (Version 6) (London: Home Office, 3 August 2016), page 29 of 41, accessed March 27, 2020, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/543882/Sexual-orientation-in-asylum-claims-v6.pdf “Communicating sexually explicit policy to claimants … When such narratives are offered (excepting allegations of sexual attack or rape), the interviewer should make the following declaration” (emphasis added) [preventing further disclosure or filing of prohibited material].

  53. 53.

    Justin Surendran Devaseelan v Secretary of State for the Home Department (HR/3442/01) [2003] Imm A.R. 1 cf AA (Somalia) and AH (Afghanistan) v. Secretary of State for the Home Department [2007] EWCA Civ. 1040 [2008] Imm. A.R. 241 [15] “[n]ot to be read restrictively” (Hooper LJ).

  54. 54.

    Apata (2016, CA) (n 13).

  55. 55.

    Ibid., [28] (as per Burnett LJ).

  56. 56.

    Dugan (2015) (n 39), 313–314 (fn. 147).

  57. 57.

    R (Apata) v. Secretary of State for the Home Department [2015] EWHC 888 (Admin) [35] (as per Deputy high Court Judge John Bowers QC) “It was submitted by Mr Baird that the Claimant could not be a member of the particular social group of lesbians because she had had children or heterosexual relationships. I do not accept this. … This Claimant says in her appeal from the FTT that ‘it took me several years to identify with my sexuality as a gay woman.’ I accept that she has had some same sex relationships but I do not accept that this in itself renders her a member of a particular social group.”

  58. 58.

    Emily Dugan, “Home Office Says Nigerian Asylum-Seeker Can’t Be a Lesbian as She’s Got Children,” The Independent, May 27, 2015, accessed August 8, 2018, https://www.independent.co.uk/news/uk/home-news/home-office-says-nigerian-asylum-seeker-can-t-be-a-lesbian-as-she-s-got-children-10083385.html. See also for quotes from the Home Office Barrister cited in the last sentence: Aubrey Allegretti, “Nigerian Lesbian Aderonke Apata Pleads for UK Judge to Save Her Life,” Huffington Post, March 5, 2015, accessed February 5, 2017, http://www.huffingtonpost.co.uk/2015/03/03/asylum-apata-lesbian-court_n_6793376.html.

  59. 59.

    See CREDO2 for examples of trigger questions. Cf Jasmine Dawson and Paula Gerber, “Assessing the Refugee Claims of LGBTI People: Is the DSSH Model Useful for Determining Claims by Women for Asylum Based on Sexual Orientation?” International Journal of Refugee Law 29, no. 2 (2017): 292. Both Dawson and Gerber’s analysis of the DSSH model is fundamentally flawed, as all case examples cited by them, including Apata’s pre-August 2016 proceedings, had no evidence of the DSSH model being applied to construct the narratives of the queer refugees. The DSSH model was first used to draft Apata’s statement for the Fresh Claim in August 2016.

  60. 60.

    08/16 FCS, [4].

  61. 61.

    Ibid., drafted by Apata with the assistance of her solicitor and colleague at his firm.

  62. 62.

    Cynthia Orchard, Sexual Border: Does the UK Adequately Protect People Seeking Asylum Based on Risk of Persecution Relating to Sexual or Gender Identity or Expression? (London: Asylum Aid, February 2018), accessed 9 August 2018, https://www.asylumaid.org.uk/wp-content/uploads/2018/02/Policy-briefing-Sexual-Borders-Feb-2018.pdf; UK Lesbian and Gay Immigration Group, Still Falling Short (London: UK Lesbian and Gay Immigration Group, July 2018), accessed August 9, 2018, https://uklgig.org.uk/wp-content/uploads/2018/07/Still-Falling-Short.pdf.

  63. 63.

    08/16 FCS, [8], as per the Yogyakarta Principles (2007) definition of sexual orientation, accessed August 20, 2018, https://yogyakartaprinciples.org/introduction/.

  64. 64.

    Diane Thompson, “‘I Have Nightmares’: People Threatened with Deportation Reveal What Happened Next,” The Guardian, 1 January 2018, accessed 5 February 2018, https://www.theguardian.com/uk-news/2018/jan/01/i-have-nightmares-people-threatened-with-deportation-reveal-what-happened-next.

  65. 65.

    08/16 FCS, [81].

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  1. 33 Bedford Row Chambers, London, UK

    S. Chelvan

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    Senthorun Raj

  2. University of Bristol, Bristol, UK

    Peter Dunne

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Chelvan, S. (2021). The DSSH Model and the Voice of the Silenced: Aderonke Apata—The Queer Refugee: “I Am a Lesbian”. In: Raj, S., Dunne, P. (eds) The Queer Outside in Law. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48830-7_4

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