Revealed – The dishonest techniques UKBA uses to portray LGBT asylum-seekers as making up their stories
Maxwell O. due to be deported on Wednesday 9th October
The UK Borders Agency has a tough job, homosexuality is difficult to prove exactly, and there are people who will attempt to claim homosexuality as a means of unjustly claiming asylum. But even against such a backdrop, UKBA is resorting to grievously dishonest means to enable them to portray genuinely gay people as if they are making up their stories to fraudulently gain asylum.
Maxwell O. is a gay Nigerian who fled to the UK in 2011 fearing he would be killed if he stayed in Nigeria. He had been blamed for causing the death of his father and brother by 'witchcraft' due to him being gay. He had been warned by an uncle to flee from Nigeria or else face being killed by his community. He is due to be sent back on Wednesday 9th October 2013.
Total failure of immigration solicitor to advise competently
Maxwell overstayed his visa out of fear of going back, and was not aware he could claim asylum for being gay until at Doncaster gay pride he bumped into a lover he had lost contact with in Nigeria, Ben, who was already going through the asylum process in the UK. Ben told him he could claim asylum. Maxwell was fearful of authority, partly because Ben had been detained for a while, and he feared being treated unfairly.
Eventually he was persuaded to apply for asylum and was directed to a local immigration specialist. For unexplained reasons, but demonstrating an apparent total dereliction of duty, she made no effort to evaluate his evidence prior to recommending he submit himself to the Borders Agency. Thus, he had no professional advice over the preparation of his evidence, no professional evaluation of his torture evidence from an authoritative source and had no detailed account of his life prepared prior to being detained.
Now with a new solicitor, Maxwell was denied permission to be released to have his torture evidence evaluated properly, even though the Helen Bamber organisation does not do medico-legal evaluations of people who are detained. He was told he could get a perfectly satisfactory evaluation while detained.
Dishonest interpretation of evidence by UKBA
UKBA utilised this situation to made the most dishonest interpretations of his evidence by a variety of techniques:
His evidence was not regarded as proving he has gay or that it necessarily pertained to him, such as his loyalty card to a gay sauna that had an abbreviated version of his name and date of birth on.
Failing to ask penetrating questions about something and then portraying it as 'unlikely' or 'not plausible' from superficial details
Failing to ask detailed questions about his experiences of gay life here, and then interpreting his knowledge as 'generic'
Dishonestly ignoring their own account of the interview to justify interpreting things in an unfavourable manner
The evidence from a doctor who said he was likely to have been tortured was rejected.
As a result of this, Mike Hersee, an LGBT rights activist who had personally had been sexually intimate with Maxwell's partner Ben on several occasions previously, questioned Maxwell while he was in detention for one and a half hours over the phone, which was recorded. This included covering all of the reasons UKBA gave for rejecting Maxwell's claim, as well as extremely intimate questions about sexual intimacy with Ben. These evaluations, demonstrating rampant dishonesty, negligence or incompetence by UKBA were detailed in a 10-page testimony, that was submitted to the first tier appeal as part of the bundle prepared by his new solicitor.
Torture evidence unfairly regarded as not authoritative
At the first tier tribunal, the evidence from a second doctor who also said he had been likely to have been tortured was also rejected. Thus, the perfectly satisfactory medico-legal evaluations he was told he could get within detention turned out to be not satisfactory after all to UKBA and the judge.
Also, Maxwell and Ben were cross-examined on their relationship. Because of the deficiency of Maxwell's documentary evidence because (a) he used to meet guys at the sauna rather than via the internet, and (b) total dereliction of duty of the first immigration solicitor to advise him on preparing his evidence, a lot was riding on this cross-examination. Superficially, according to the judge and Maxwell's solicitor it appeared at the time that 'the differences were too big to ignore', and this was interpreted that their story was made-up, and that Maxwell was not really gay.
Mike Hersee could have refuted in detail the arguments put forward by UKBA as well as confirming with intimate details his own experience of cross-examining Maxwell on his sexual relationship with Ben. Mike Hersee did not attend that hearing due to other very high priorities as there was no suggestion from Maxwell's solicitor that it would be necessary or would make any difference. After the hearing the solicitor specifically confirmed that it would not have made a difference had he been there and she specifically said he would not have been cross-examined.
However, the judgement when it arrived rejected Mike Hersee's evidence on the basis that he had not been there to cross-examine, and because this was legally allowable, this meant it could not be challenged as an error in law at the second-tier tribunal. This was also regarded as unfair by counsel, but, thus, due to a technical blunder by Maxwell's second solicitor, who is a trainee, substantive evidence undermining UKBA's case was essentially ignored in its entirety, including evidence that did not require Mike Hersee to be present to support as it stood by itself.
Judge had previously had a bad experience in Nigeria in the area where Maxwell came from
Maxwell also made the comment that the judge had told him that she'd been in Nigeria between 1968-70, in the same area where Maxwell had lived, and had been subject to some bad experience while there. Maxwell said afterwards he felt he was being punished by the judge for a bad experience she suffered that had occurred ten years before he was even born.
At the second-tier tribunal, the judge essentially made the same harsh findings as the first judge and rejected the submission that the first judge had not properly evaluated the evidence. Counsel said that Maxwell had been 'very unlucky' in having two very harsh judges.
Maxwell's solicitor believed he had been so unfairly treated by the system and fervently believed he was gay she continued some work pro-bono before being told to stop by her firm. This has resulted in a bail hearing due to be held on Monday 7th October. However, the projected chances of success are slim. Maxwell has no legal representation for that hearing.
Discovery of even more devious and dishonest techniques used by UKBA
Taking over the reins as an untrained volunteer, On Saturday 5th October, Mike Hersee interrogated Maxwell about the discrepancies between his and Ben's account of their relationship that were crucial to the judge finding that they were essentially making it up. It emerged from forensic questioning that the questions each of them was asked were subtly but significantly different. This led to superficially different answers to what sounded superficially like the same questions. This had not been spotted by Maxwell's solicitor at the time of the first-tier tribunal and thus had not been challenged at the time or raised as an error in law for the second-tier tribunal.
In a scientific experiment, the experimental subject and the control must both be subjected to the same experience in order to establish whether the one difference between them is significant in terms of influencing the result. Essentially though, given the one difference being tested, the rest of the process needs to be the same. By that standard, the process Maxwell and Ben were subjected to could not prove they were not telling the truth because the questions were different, and thus is was grossly unfair. Furthermore, all the differences were satisfactorily explained upon further close questioning.
An example of the differences in the questions that resulted in different answers to supposedly the same underlying question was when they were questioned about how they used to meet up to have sex back in Nigeria. Maxwell says he was asked, “When you FIRST went to the hotel where you had sex with Ben, how did you travel there?”, and he answered 'on foot'. Ben was asked, “How did you used to go to that hotel?”, to which he answered, “I'd pick him up [in his vehicle] and drop him off again”. However, both answers were correct – on the first occasion Maxwell walked, but the majority of the time Ben would pick him up in his vehicle. Thus by asking two questions with a subtly but significantly different scope, the UKBA questioner managed to obtain two different but essentially correct answers from the same story.
In view of the devious and unfair questioning technique of the cross-examination, it is in fact remarkable that the majority of their accounts agreed substantially at all.
The accumulation of smaller unfairness leads to a gross injustice
However, at the current state of play, by such morally bankrupt techniques, the UK Borders Agency – that has the epithet “Building a safe, just and tolerant society” at the bottom of its faxes – has so far won the battle to remove Maxwell, utilising what counsel called 'Two very harsh judges' and building on two substantive blunders by Maxwell's trainee solicitor, and a total dereliction of duty by the first immigration solicitor that initially landed him in the trap from which it was virtually impossible to escape.
This may be the administration of a judicial process, but by an accumulation of several unfair factors, it is certainly not justice. Thus, this gentle, gay Nigerian is due to be deported back to the place from where he was tortured on a charter flight on Wednesday 9th October and where people are waiting to kill him with 'jungle justice'.
David Cameron said recently he was concerned about the plight of gay Nigerians, but either is clearly not so concerned that he doesn't care what morally bankrupt techniques UKBA uses to determine that gay people are not gay, or else he is not aware. The question is, is this how he wants British values of 'fair play' to be exported to the rest of the world? Is this what he had in mind when he favoured the 'Big Society'?
Maxwell said in summary when initially interviewed by Mike Hersee following UKBA's rejection of his initial asylum claim, in what may be the last words of his that were recorded on audio, “What I want to say is, my interview, they turn it upside down, they make just a few statements on all I say”