Judge S. Chana accepted the UK Border Agency (UKBA)’s argument that Eddy’s story was not ‘credible’ and that he has no reason to fear persecution in Tanzania even if he was gay, which he isn’t.
A lawyer for Eddy, who had only been instructed for the case the previous night, asked for the case to be removed from the ‘fast track process’ so a psychological and physical assessment (to establish whether he had been tortured) could take place. This was refused, in part because the judge accepted UKBA’s evidence on the absence of persecution of homosexuality in Tanzania and "I took the view that I would not be assisted by the additional reports." A reason that Eddy was not credible and she rejected the appeal was because the judge thought a Tanzanian homosexual should know more about developments on homosexuality in Tanzania.
In other words her argument was: ‘if you are a gay activist, as you say you are, you are not a very good one.’
Last week, we examined the problems with the initial decision on Eddy’s case which has led UKBA to place him in ‘fast-track’ (which leaves him with vastly reduced time to make his case). In particular we pointed to how evidence on Tanzania had been found by UKBA, contrary to guidance, to back their argument that gays are not persecuted there and how various aspects taken to undermine Eddy’s credibility were in fact based on, at best, cultural misreadings or misunderstandings or, at worst, willful ignorance.
Most pointedly, the UKBA initial decision maker, found the evidence Eddy gave about how gay men meet each other in Tanzania ‘not credible’. So did the judge, saying: "I found these answers to be vague and unimpressive in demonstrating a knowledge and experience of how gay men in Tanzania find gay partners for one night stands [sic]. I would have expected a person with genuine experience to have given more detailed and coherent answers." Like UKBA, the judge believe they could not be persecution in Tanzania if two LGBT organisations and an underground gay scene on the island of Zanzibar exists. The judge said that Eddy "would be expected to know more" about Zanzibar, or more than that the Tanzanian government is ‘against homosexuality’, because Eddy has had ‘one night stands’ (the judge’s pejorative phrase, and my emphasis).
Rev. Jide Rowland Macaulay
The judge then makes much of a lack of prosecutions for homosexual offences reported in human rights reports (such as that of the State Dept.). She said that the Nigerian gay activist Rev. Jide Macauley, who was giving evidence, said that the "only risk for homosexuals is from Tanzanian society and not from the government." This is contrasted by her with Eddy saying that he had read of people being convicted and sentenced in Tanzanian newspapers.
However Macauley told us, "that’s not true. She didn’t take all my evidence into consideration [he had submitted a statement] and the process didn’t allow me to provide an analysis of how the legal situation in Tanzania does persecute gays."
Macauley was not accepted as an expert witness by the judge, despite having testified to the United Nations.
The judge makes much of a report highlighted by UKBA of discussions on homosexuality within the Anglican Church involving Tanzania and says that "if the appellant was a homosexual, he would have more knowledge about [such] developments taking place in Tanzania on the issue of homosexuality as it would have affected him personally."
We explained before how the UKBA decision maker could not accept how an African family could ‘disown’ a gay son by sending him away and paying for UK studies, as opposed to never seeing him again. The judge agrees with this argument and goes further by not accepting that Eddy’s struggles to explain this to UKBA have a lot to do with English not being his first language and his evident difficulty in explaining African attitudes to gay sons to the UKBA agent.
Rev. Macauley said that language misunderstandings can be the basis for very clear misunderstandings – which are then taken as discrepancies and seen as undermining someone’s credibility. Something like ‘elder brother’ means something totally different in Swahaili to what it does in English, for example – and Eddy’s discussion of his brothers is in the eyes of the judge and border agent was ‘not credible’. Macauley questioned the translation provided by the Swahili interpreter present at the court. He felt that the interpreter was not neutral and was supporting the UKBA case: "we felt uncomfortable," he said. Stonewall’s 2010 LGBT asylum report discusses problems with translators, including blatant homophobia.
Talking about one incident where Eddy was beaten after a French student kissed him in a bar, the judge cannot believe why the student would do that in Zanzibar "which was 90% Muslim". So that’s another mark down for Eddy’s ‘credibility’.
There is much more which speaks to the aim of the judge and the initial interviewer to find inconsistencies which an understanding of the situation of African LGBT would explain. For example, Eddy talked further at the hearing about having stones thrown at him at night by unknown people. Stonewall’s LGBT asylum report last year explained and the UKBA’s own guidance covers why they may not volunteer all information immediately and other reports have explained how those suffering persecution (and torture) may not immediately volunteer details to a representative of the state. Yet the judge says: "I find that this is disingenuous in the extreme given that his claim is based on persecution in Tanzania on account of his homosexuality… this evidence that he was constantly attacked in Tanzania is an afterthought by the appellant to bolster his asylum claim."
Threats from a Tanzanian Bulletin Board, in particular one which says “..bring him, he will die at the airport!!!”, are ignored, instead the judge focuses on other posts in that Board’s thread which say Eddy is not gay. Since the hearing, Eddy’s supporters have received further evidence (see below) from Tanzania on what threats Eddy may face if returned.
Macauley said in his statement:
"Cosmas’s cases and fear highlighted in his personal statements are in line with homophobic activities throughout Tanzania. Cosmas clearly understands the Tanzanian culture and tradition that is largely restricting generally on human sexuality, however for his family to find out that he is gay has placed a lot of pressure on him, most African male is expended to introduce a bride. Any sign or admission of being gay would be considered an aberration, taboo and abomination, The fact that his uncle is now aware of his sexuality has dire consequence."
Macauley says that the common African attitude is:
“If it were possible to determine the homosexuality of a child before birth many African parents would repudiate their homosexual child before they have the chance to live”.
Macauley adds that Tanzania provides no security for her citizens and has a high level of Police corruption. This "undermines the brutality of the crime against sexual minorities. There is an increasing and genuine fear of further risk of shame and stigma by friends, relatives, colleagues and employers."
"Gay people are described as an abomination and our actions are an attempt to corrupt the nation, a threat to national security and the young people."
"It will be both difficult and challenging for Cosmas to live his life safely and with dignity if deported to Tanzania.
Stonewall’s report explains why people may not immediately claim asylum on sexuality grounds because of fear and shame, yet the judge says that a delay of three months (my emphasis) between finding out about and attending a UK Lesbian and Gay Immigration Group (which helps LGBT asylum seekers) meeting and claiming asylum is not ‘credible’.
All the evidence submitted by a dozen people that Eddy is gay is dismissed by the judge. She actually accepted that Eddy has been ‘active in the gay rights movement in the UK’ but says that this does not prove he is gay.
The judge, looking at the appeals from supporters and the petition on his behalf, says there is no evidence that Eddy would be ‘out’ in Tanzania. However, as we pointed out before, UKBA is supposed to establish whether someone would be ‘discrete’ if returned and why at interview – this was not asked.
Judge S. Chana summarises that Eddy’s "claim to be a homosexual is an invention by the appellant and a ploy to remain in this country."
As we explained before, this case appears to have been considered with only cursory and dismissive reference to the Supreme Court decision last year and subsequent guidance on consideration of LGBT asylum claims issued by UKBA. This decision is yet another textbook example of how not to judge a gay asylum claim and – as we said before – undermines the promises of change on LGBT asylum made by the British government.
His supporters have said that:
"If the UK proceed on a track of deportation for Eddy, we call on other nations to step forward and offer Eddy the protection and safety he needs.”
This has happened before. Both Mehdi Kazemi and Pegah Emambakash – Iranian cases which became massive international campaigns in the teeth of Home Office attempts to remove them to certain imprisonment and likely death – were offered Italian sanctuary (subject to legal process) by senior Italian politicians.
His supporters have lobbied various British embassies around the world and have secured the support of Peter Tatchell, John McDonnell MP, the Mayor of Richmond, California, and organisations including the National Union of Students (NUS) Black Students Campaign, NUS LGBT campaign, and Gays without Borders (San Francisco).
Movement for Justice (the main group supporting Eddy): Timeline for Eddy on Fast Track
9 May: Eddy attends initial screening interview at the Home Office in Croydon; he submits claim for asylum based on sexual orientation. He is taken into detention, removed to Harmondsworth detention centre.
13 May: Eddy starts a grueling, adversarial interview process while being held in detention. He is appointed a solicitor he has never met before who only has 30minutes to get to know Eddie.
16 May: Interview continues, after 1 week in detention Edson is confused & scared, he has become even more scared over the weekend, feels he is being tested, cannot hold on to what had happened on 13 May.
18 May: The decision: key points are all based on confusion displayed by Eddy in the interview process (inability to remember details, timeline etc) taken, not as a natural response to being wrongly imprisoned or an expression of someone who is traumatised; but as meaning he lacks ‘credibility’. Decision also stated that TZ really was not that bad for LGBT people, citing a quote from one TZ bishop as ‘key’ evidence. All witness statements from Eddy’s friends& fellow MFJ members are completely dismissed.
23 May 2011: Eddy is examined by a doctor from Medical Justice who has been asked to provide a medico-legal report for Edson’s appeal. Report cannot be completed until 31 May.
24 May: Eddy has psychological assessment. With less than one days notice the assessment cannot be carried out in a private room. Psychologist gathers enough information & observations to provide an interim report stating clearly that Eddy was not fit to appear on his own behalf at an appeal, that his mental health is deteriorating in detention and that she needed at least two more sessions to be able to complete the assessment. Eddy’s appeal hearing is scheduled for 26 May
25 May: Today is spent trying to finalise Edson’s witness statement, gathering other evidence and ensuring witnesses could attend, key witnesses, including an ex partner could not attend at such short notice. Gay activist in Tanzania gets in touch to say it is not at all safe for eddy to go back.
26 May: Edson’s appeal hearing – application made to take Eddy off fast track and adjourn the hearing so medical and psychological assessments could be completed, death threats from Tanzania could be translated and two key witnesses could attend. Judge S Chana, disregarded all this & refused to end Eddy’s detention or adjourn the hearing, he is subjected to almost two hours of gruelling cross examination.
25 May, Movement for Justice received a reply from a gay activist in TZ in response to our search for people who can talk about the real, lived experience of LGBT people in TZ. Below are extracts from his response, unfortunately we cannot disclose this source’s name publicly because it would endanger his life. We hope to organise telephone interviews as long as his anonymity can be protected.
“Edson will face a lot of trouble (beaten, or death) if he will be returned back to Tanzania. Tanzania is not safe at all, especial for gays. Edson Cosmas who was publicized in magazine and documented in some websites in UK and most of the people here in Tanzania heard about him and main discussion is negative thought so for him it will not safe."
"I had experience some cases concern gay people who had been deported back to Tanzania, when they arrive at the airport some conservative people and religious who hate the gays are just waited outside the airport with slogan of disdain and stigmatize the person and also the police are usually waiting for them to arrest, absolutely. Edson has become quite well known because of the campaign to stop his deportation this will make him to be arrested.”