By Faraz Shauketaly
In a landmark ruling Britain’s Supreme Court has delivered an absolutely very British verdict, sparking new fears that a new group of immigrants will have an easy ride to life in the UK. The highest court of law in Britain, ruled that gay asylum seekers cannot be deported if they had a real fear of persecution in the country they are to be returned to.
And the verdict contained observations unlikely to be matched anywhere but in modern Britain. With typical candour, Lord Rodger one of the Supreme Court judges, borrowed from typical British life to give an example of the Court’s intention in providing protection to those of a different sexual persuasion.
Upholding gay peoples’ fundamental right to choose quite how they wish to behave, Lord Rodger said, “normal behaviour of gay people must be protected just as it was for heterosexual people. What is protected is the applicant’s right to live freely and openly as a gay man.”
To illustrate the point with trivial stereotypical examples from British society: “just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.”
Within hours of the verdict, Britain’s Immigration Minister Theresa May immediately said that the British government would respect and implement immediately the decision of the Court indicating British values of respecting the rule of law.
The decision was hailed by various pressure groups but dismayed some who saw this as a loophole in an otherwise tough immigration ambiance in the United Kingdom. Immigration was an especially significant issue at the last parliamentary election which produced a hung parliament for the first time in modern times. The same renaissance period in Britain has seen the country introduce laws recognising that a gay person has the same rights as the next person on the street – as well as recognising civil relationships from same sex couples. Soon after those rules were introduced the entertainer, Sir Elton John married his partner of many years the architect, David Furnish – becoming the first gay couple to be legally married.
A large contingent of Sri Lankans – who had ended up in Britain in any way other than legal means – were studying the impact of the new rule. The tests for success are naturally high and detailed leaving very little room for sympathetic consideration.
The judges, directing that this rule would apply to lesbians too, also laid criteria for the immigration department in studying applications. They directed that immigration tribunals should in future decide on the available evidence whether an applicant was gay and if so, whether he would face persecution if he lived openly in his own country. If this were the case, then he would have a well-founded fear of persecution, even if he could avoid the risk by living discreetly.
If the applicant chose to live discreetly because of social pressure – not wanting to distress his parents or embarrass his friends – then the application should be rejected. If the tribunal found the applicant would have to live discreetly to avoid persecution, then his application should be allowed.
Legal analysts in London interpreted the tests envisaged by the Supreme Court to mean that gays who chose to remain discreet would find it difficult to support their case. In Sri Lanka homosexual acts are prohibited by law though prosecutions are few and far between. A Sri Lankan applicant would ordinarily be unable to prove a ‘well founded fear of persecution’ as in spite of the laws here making such relationships and acts illegal, it is common knowledge that the law is hardly ever applied in Sri Lanka.