Sunday, 24 November 2013, 11:15 , by Jacob Borg
An 18-year-old Nigerian migrant has been granted asylum in Malta due to persecution in his home country over his homosexuality.
Consensual homosexual conduct is punishable by up to 14-years in prison under Nigeria’s federal criminal code.
The man was granted asylum by the Refugee Appeals Board in Malta this month after his initial request had been turned down by the office of the Commissioner for Refugees in April.
In its ruling, the Board noted the recent judgement delivered by the European Court of Justice which ruled that gay asylum-seekers from an African country where people are jailed for being homosexual qualify for asylum in Europe.
The Board found that in Nigerian states applying Sharia law, consensual homosexual conduct among men is punishable by death by stoning or flogging.
As Malta slowly progresses towards the passing of a ‘Gay Marriage’ Bill, Nigeria went in the opposite direction in November 2011, as the Senate passed a Same Sex Marriage (Prohibition) bill.
Persecution against homosexuals in Nigeria is not merely directed towards the individuals themselves, but also towards any person or group that “witnesses, abets and aids the solemnisation of a same-sex marriage or union” or “supports” gay groups, “processions or meetings”. Such “crimes” are punishable by up to 10-years imprisonment.
Amnesty International reports that the same sentence would apply to a “public show of same sex amorous relationship” and anyone who registers a gay club, as well as organisations protecting the rights of lesbians, gay men, bisexual and transgender people, the Board noted.
Quoting a 2012 report by the UK Border Agency, the Appeals Board said: “many Nigerians strongly disapprove of homosexuality.
“The dominant role of religion is widely seen as the root of the country’s homophobic culture. Punishing gays is one of the few common themes that politicians can promote with equal zest in the mainly Christian south and the largely Muslim north. Under federal law, sodomy is punishable by a 14-year jail sentence,” the Board said.
Board flags inappropriate questions
The Board said that certain questions asked by the Refugee Commissioner’s Office regarding the sexual life of the appellant “are not appropriate, and shed no light whatsoever on the particular matter which needed to be determined.”
The methods used to establish whether or not a migrant’s claim to be homosexual is credible have come under scrutiny due to the European Court of Justice’s ruling.
Neil Falzon, a human rights lawyer and the director of human rights NGO aditus, told The Malta Independent on Sunday that he supports the finding of a 2011 report entitled Fleeing Homophobia when it comes to type of questions asked when establishing homosexuality.
The report says that, all too often, EU member states rely on simple stereotypes when trying to assess the credibility of a homosexuality claim by an asylum-seeker.
“Legal decisions still frequently rely on the idea that the sexual orientation of an asylum seeker is only to be taken seriously when the applicant has an ‘overwhelming and irreversible’ inner urge to have sex with a person of the same gender,” the report highlights.
The same report argues that “stereotypes exclude persecuted bisexuals from international protection, in addition to other LGBTI people who do not behave in accordance with the stereotypes used by decision-makers. Stereotypes may exclude lesbians who do not behave in a masculine way, non-effeminate gays, and LGBTI applicants who have been married or who have children.”
Credibility assessment is notoriously difficult, and is usually compounded by a lack of sensitivity on the part of the adjudicator, and the report draws a definite red line at any form of medical test being used to establish homosexuality.
“Since LGBTI identities are not legitimate medical, psychiatric or psychological categories, the use of medical, psychiatric or psychological expert opinions in order to establish an applicant’s sexual orientation or gender identity is not legitimate or appropriate. Producing such opinions entails an invasion of the applicant’s privacy which may cause intense suffering, especially for applicants who have faced similar interrogative practices in their country of origin,” the report states.
The Refugee Appeals Board said in its own report that “the question at hand was, in the view of the Board, very simple: whether the appellant is credible in claiming to be homosexual or not”, which can be established through clear facts, such as whether he had had a male partner for a continuous period, and whether he involved himself in same-sex sexual encounters.
The Board said that further questioning about the specifics of these sexual encounters “is purely irrelevant, if not lacking in respect for the dignity of the appellant.”
Offices decline to comment on ‘individual case’
A spokesman for the European Asylum Support Office (EASO) in Malta declined to comment on the merits of this particular case, citing the fact that it “has no direct or indirect powers in relation to the taking of decisions by member states' asylum authorities on individual applications for international protection.
“In this context, our mandate prevents us from tackling individual cases directly and we suggest that you address your request for comments to the national asylum authority and/or the institution concerned,” the spokesman said.
The EASO does not have any guidelines on how to assess the credibility of an asylum-seeker claiming homosexuality.
The United Nation’s Refugee Office in Malta also declined to comment on the case, but pointed out that a 2013 report that it had commissioned entitled Towards Improved Asylum Decision-Making in the EU analyses LGBT considerations in the asylum process.