The ‘Burden of Proof’ in Asylum Claims Must Fall on the Home Office, Not the Asylum Seekers.
Remember Jackie Nanyonjo! No More Deaths from Deportation!
Asylum is a fundamental human right. As long as there have been governments and states people have asserted their right to live free from persecution by finding sanctuary in another country. Britain recognises this in words every time it signs an international convention or declaration on the rights of refugees, human rights and the rights of women, LGBT people etc. – but the truth is that Britain’s present asylum system is set up to restrict and deny the right of asylum in practice. For one Movement for Justice member, Jackie Nanyonjo, this systematic undermining of the right of asylum was a death sentence. Jackie was not the first person to die as a result of this perversion of justice, but the Movement for Justice is fighting to ensure that she is the last one. We have campaigned to expose what happened to Jackie and we made it part of our submission to the asylum inquiry by Parliament’s Home Affairs Select Committee. When the Committee’s chair, Labour MP Keith Vaz, refused to allow Tacko Mbengue of the Movement for Justice to make an opening statement when he gave evidence to the inquiry on 25th June 2013, and then closed the meeting, he prevented any public exposure and discussion by this parliamentary body of Jackie’s death and the injustice it represented.
How a Perverted Asylum System Condemned Jackie Nanyonjo to Death.
Jackie was a lesbian and a victim of domestic violence from Uganda who had lived openly as a lesbian in Britain for years, with a circle of LGBT friends in south London. She had found some measure of sanctuary in this country but without formal asylum, because she knew that the way the system operates makes it dangerous to apply for asylum: if you apply early you are told you don’t have enough evidence; if you apply late your evidence is discounted because you didn’t make a claim on arrival. Like thousands of other immigrants and refugees, Jackie was forced by this injustice into an insecure grey area of the economy on low pay and with few if any rights, in order to survive. Applying for asylum was a last resort, and despite evidence from her partner and other lesbian and gay male friends, plus hospital records from Uganda of her history of domestic violence, she found that her years of working in the National Health Service were somehow turned into ‘evidence’ that nothing she or her witnesses said could be believed.
Because Jackie did have what the UN Refugee Convention calls “A well-founded fear of persecution” she put up a brave and determined resistance to removal as a ‘failed asylum seeker’ on 16th December and was brutalised by Reliance (now Transcor) guards. She sought and was denied medical treatment for severe and continuing chest pains when she was back in Yarl’s Wood detention centre. She made a formal complaint about her treatment to the UKBA, which went unanswered. She still summoned the strength to resist in an unavailing attempt to prevent her removal on 10th January, and suffered further brutality. Precisely because she was a lesbian, protected at some risk by sympathetic family members, it was difficult for her to seek medical treatment in Uganda. Her friends and relatives have described the rapid decline in Jackie’s health after 16th December and on her return to Uganda. She died in a Kampala hospital on 8th March.
Jackie’s history speaks not only for all those whom the perversion of the asylum system has condemned to death, but for the experience of every asylum seeker trying to fight her or his way through a set of nightmare administrative and legal processes designed to deny a basic human right. From the moment an asylum seeker makes a claim, through the interview procedure, detention, the conditions under which he or she lives, the appeal tribunals and the courts, everything is based on the assumption that he or she is a ‘bogus asylum seeker’ and a liar. The asylum system turns the normal principles of justice upside down by imposing an absurd and totally unjust burden of proof – asylum seekers are assumed to be guilty of lying unless they find a way to prove that their accounts of persecution, torture or rape or of their sexuality, political activism etc are true. For most asylum seekers this is impossible, because of the very conditions of escaping from persecution. This reverses the burden of proof applied to anyone charged with a crime: innocent until proved guilty beyond reasonable doubt. As a result every asylum seeker is subjected to a miscarriage of justice, even those who eventually ‘win’.
The Challenge before the Asylum Inquiry
The real test for the Home Affairs Committee is whether it can respond to the struggles and demands of asylum seekers and overturn the unfair burden of proof that is the fundamental injustice of the present system. Instead of the burden of proof being placed on an asylum claimant to prove that he or she is not lying, anyone requiring asylum would be granted it and if the Home Office disputes her or his claim it would have to prove beyond reasonable doubt that they are lying, so that asylum seekers are afforded at least the level of justice that applies in criminal cases. The change is simple and obvious. It is obvious to anyone that if this burden of proof had been applied in her case Jackie Nanyonjo would be alive today and living in Britain. Only when the existing burden of proof is reversed will this country have an asylum system that really upholds the right of asylum and ensures that no-one else suffers the same injustice and death as Jackie Nanyonjo.
Once this principle is recognised all the other necessary reforms of the system that the Movement for Justice has argued for fall into place. To be able to exercise their rights, asylum seekers must have time to fully prepare their cases and gather evidence and therefore have access to lawyers whom they choose (and it follows that the currently proposed changes to the Legal Aid system must be withdrawn). The detention of asylum seekers and especially the process of Detained Fast Track, which isolates claimants and rushes them through an already unjust system when they are in no position to prepare their cases, would therefore have to be abolished. All the demeaning restrictions on asylum seekers’ rights to work, benefits, education, housing etc, which are now driving growing numbers into destitution, would have to go. The only purpose of these restrictions is to create a “Hostile Environment” – to use the phrase the Prime Minister favours to describe his plans for immigrants and asylum seekers – on the basis that asylum seekers are assumed to be lying and must be deterred. Once the present unfair burden of proof has been turned right-way-up these supposed deterrents would have no purpose and would have to be recognised for what they are: racist, discriminatory and a denial of legal and human rights.
To be in a position to propose and fight for this obvious, necessary and fundamental change the MPs on the Home Affairs Committee need the public voices and evidence of asylum seekers, they need the public recognition that Jackie Nanyonjo was killed by a system that denies the right of asylum to thousands of people who desperately need it, and they need the public acknowledgement of the injustice, the parody of legal process and the degrading treatment and brutality, in and out of detention, that are the fruits of the present system. That is why the Movement for Justice insisted that refugees and their supporters should be able to appear as public witnesses at the asylum inquiry and should be able to make opening statements. We know that if witnesses are limited to answering questions from the start, the responses will be shaped by what is asked (especially for those whose first language is not English and who are not familiar with committee procedures). What was at stake was whether the Committee was prepared to listen to what asylum seekers and refugees know, and what they know that MPs need to hear – or whether the MPs would use their questions to limit the answers to what they, as politicians, want to hear.
Even before the meeting where Movement for Justice members were due to give evidence it was becoming increasingly apparent that the Committee had chosen the second option: limit what you hear in order to limit what you propose. The Committee was having sessions to hear from a bevy of NGOs, senior Home Office officials and company executives from G4S and Serco, but there was only going to be a single meeting at which it would hear from asylum seekers and refugees (and that eventually turned into half a meeting). Asylum seekers were to be heard in private. After we got agreement that the two Movement for Justice witnesses would give evidence in public we learned that their combined ‘slot’ on the agenda was limited to 20 minutes, compared to a combined ‘slot’ of 45 minutes for the G4S and Serco bosses. While Movement for Justice members were waiting for the start of the inquiry meeting on 25th June we met three asylum seekers who were going to give evidence in a closed session before the public session; no-one had told them they could give evidence in public and they went in isolated, in front of a committee of 11 MPs. Their combined ‘slot’ lasted for little more than 15 minutes.
Despite all this the Movement for Justice was determined to do everything we could to set out the truth about the death of Jackie Nanyonjo and the operation of the asylum system, and the fundamental change needed to prevent the otherwise inevitable deaths of other so-called ‘failed’ asylum seekers.
The Movement for Justice witnesses due to give evidence on 25th June were Tacko Mbengue, a gay man and victim of torture from Senegal who has been a leading member for the past three years, and Flavia Zziwa, a lesbian refugee from Uganda and another victim of torture, who was prevented from appearing by her employer. At the start of his session Tacko told the chair, Keith Vaz, that he wanted Tony Gard of the Movement for Justice to make a statement about how and why Flavia – who feels no more secure or equal now that she has asylum than she did before she got it – had been prevented from giving evidence. If the Committee took its statements about hearing from asylum seekers and refugees at all seriously this should have been a matter of obvious importance, but Keith Vaz brushed Tacko’s request aside with a smug ‘assurance’ that “We will be hearing from lots of asylum seekers”. When Keith Vaz continued by launching into formal questions, Tacko refused to collude and said that he needed to begin with an opening statement – as we had requested in a series of e-mails and telephone conversations. When Tony Gard spoke up to support Tacko’s request and reiterate the Movement for Justice’s position the chairman instantly closed the meeting, less than two minutes after Tacko took his seat – throwing 45 asylum seekers out of an inquiry into asylum!
This was a political decision. It would have been very easy to accommodate the simple requests Tacko and the Movement for Justice were making. Such committees can always be flexible if they wish, and in any case Select Committee procedures provide for witnesses beginning with an opening statement. What was at issue was whether a growing movement of asylum seekers, refugees, detainees and anti-racist activists fighting for equality and justice would be allowed to speak the fundamental truth about the system we are fighting every day of our lives – or whether the Committee would be allowed to treat asylum seekers with thinly-veiled condescension so that it could get on with a cover-up.
To put it bluntly, Keith Vaz was not prepared to be a party to the further public exposure of the death of Jackie Nanyonjo: he did not want it on the public record of his committee; it did not suit him as a Labour politician when the leaderships of the three main parties in Parliament are in a competition to appear the most hostile to immigrants; it would expose the inadequacy of whatever limited proposals the Committee is currently planning to make.
The basic problem for the Home Affairs Committee is that the asylum system is in crisis. Over many years the increasingly rightward, racist, irrational development of British and European Union immigration policy has shaped, distorted and dominated the operation of the asylum system. The Committee would probably like to disentangle the two with some modest and partial reforms on asylum, but this will achieve very little in the short term and nothing in the longer term as long as asylum seekers are assumed to be liars guilty of filing fraudulent claims. To make a real and lasting difference now and ensure that there are no more deaths like Jackie Nanyonjo’s, the Committee must seize this opportunity to demand that the burden of proof is reversed in asylum cases, so that it falls on the Home Office and the presumption of good faith favours asylum claimants. Then we will be able to speak of some measure of justice for Jackie Nanyonjo.