My Lords, in speaking to this amendment I will speak to Amendments 40, 43, 45 and 51, which I tabled, all of which are connected.
The current version of Clause 4(1) enables an applicant to oppose removal to Rwanda on the ground that it is not a safe country for the applicant only if the applicant provides
“compelling evidence relating specifically to the person’s particular individual circumstances”.
Clause 4(4) provides that the court or tribunal may grant an interim relief
“only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm”
if removed to Rwanda.
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The defect in these provisions, which the amendments I have tabled are intended to address, is that no provision is currently made for applicants who come within the definition of a refugee in Article 1A(2) of the 1951 refugee convention as persons who have a well-founded fear of persecution because of their
“membership of a particular social group”.
The proper approach of courts and tribunals to such a refugee was described in detail by the Supreme Court in HJ (Iran) v the Secretary of State for the Home Department, and HT (Cameroon) v the Secretary of State for the Home Department, especially in the judgment of Lord Rodger of Earlsferry in the first of those cases. That decision concerned gay applicants who faced persecution in their country of nationality if they lived an openly gay life. It is now clear that such persons are members of a particular social group within Article 1A(2) of the 1951 convention.
In such a case, the court or tribunal must ask whether it is satisfied, on the available evidence, that gay people who live openly would be liable to persecution in the applicant’s country of nationality. If so, the applicant is a refugee within the convention. If the applicant could and would leave discreetly not because of persecution but for reasons of concern about social relations with friends, family and colleagues, they would not fall within the definition of a refugee in Article 1A(2).
The focus, then, in these cases is to identify the social group which has a well-founded fear of persecution and ask whether the applicant is a member of it. Although HJ (Iran) concerned gay men, the analysis in that case, relating to the proper approach to persons who have a well-founded fear of persecution because of their membership of a particular social group within Article 1A(2) of the convention, applies across the board—for example, to a group comprising women, or people of a particular race or ethnicity, or people who hold particular religious or political beliefs. Therefore, these amendments relating to groups are important to reflect our own jurisprudence.
What I have said so far looks at the general issue of members of a social group. I will turn from that to the particularity of the position of a special group, comprising LGBTQIA+ people. In view of comments made by the Minister on Second Reading and by the noble Lord, Lord Sharpe, in his letter to all Peers of 12 February 2024, it is necessary to set the record straight regarding the position of members of the LGBTQI+ community in Rwanda in the context of interim relief under Clause 4(4). As I have said, such interim relief can be granted by a court or tribunal only if it is satisfied that the applicant would face
“a real, imminent and foreseeable risk of serious and irreversible harm”
if removed to Rwanda. This reflects the condition for a serious harm suspensive claim under the Illegal Migration Act. On Second Reading, I reminded the Minister, the noble and learned Lord, Lord Stewart of Dirleton, of the assurance given at the Dispatch Box by him and by the noble Lord, Lord Murray of Blidworth, to myself and others—particularly the noble Lord, Lord Cashman—during the passage of the Illegal Migration Act: that the principle to be found in HJ (Iran) would continue to apply.
On Report of the Illegal Migration Bill, addressing an amendment tabled by me, the noble and learned Lord, Lord Stewart, said:
“If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at … risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld”.—[Official Report, 28/6/23; col.768.]
Subsequently, in response to another amendment tabled by me, the Minister, the noble Lord, Lord Murray, said:
“I reiterate two points made by my noble and learned friend Lord Stewart on Report. First, Clause 38 makes it clear that persecution and onward refoulement are examples of harm which constitute serious and irreversible harm for the purposes of a suspensive claim. Secondly, if the open expression of a person’s sexual orientation would prevent them living in a specified third country for the relevant period without being at … risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim, in line with the principles set out by the Supreme Court in the case of HJ (Iran)” .—[Official Report, 12/7/23; col.1812.].
Those statements from the Dispatch Box make it clear that the Government did not intend to deviate from the principles of HJ (Iran). They also make it clear that, where gay people have a well-founded fear
of persecution in the applicant’s country of nationality and the applicant is a gay person, that is sufficient for their removal to give rise to a risk of serious and irreversible harm. This is obvious. If it were not so, it would be necessary to distinguish between degrees of harm. Would being beaten up on one occasion for being openly gay not be enough, or would there have to be violence of such a degree as to result in hospitalisation or death? I ask the Minister to address in his reply the approach that is required to be taken under the Bill.
In his reply at Second Reading, the Minister, the noble and learned Lord, Lord Stewart, simply asserted that LGBT people were not at risk of persecution in Rwanda, giving the same explanation as can be found in the Government’s policy statement, published on 12 December 2023, which contains evidence of the safety of Rwanda on which the Government rely. At paragraph 43c, the policy says the following:
“LGBTI persons may face some discrimination in practice in Rwanda. However, Rwandan legal protection for LGBTI rights is generally considered more progressive than that of neighbouring countries. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate … in law or policy”.
This statement is far too weak to rebut the generally accepted evidence of institutional homophobia in Rwanda. In the first place, the travel advice on Rwanda given by the FCDO remains the same as at the time of the Illegal Migration Bill:
“Homosexuality is not illegal in Rwanda but remains frowned on by many. LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals”.
The 2022 US State Department country report on Rwanda, which was published in March 2023—that is, less than a year ago—stated that there was significant discrimination against LGBTQI+ persons, and that LGBTQI+ individuals reported harassment from authorities and abuse by officials of LGBTQ+ persons in transit centres, with trans persons targeted with particularly severe hate speech and physical and sexual abuse. It must also be remembered that there is no equivalent law or legal policy in Rwanda that mirrors the case of HJ (Iran).
Secondly, the fact that the position of LGBT+ people in Rwanda is not so utterly ghastly as in neighbouring countries is neither here nor there, bearing in mind that, in Uganda, same-sex conduct is punishable with life imprisonment and the new anti-homosexuality Act of 2023 introduces the death penalty for several acts considered as what is called “aggravated homosexuality” and increases the prison sentence for attempted same-sex conduct to 10 years, Burundi’s penal code criminalises same-sex sexual relations for both men and women and imposes a sentence of up to two years imprisonment, and Tanzania’s penal code criminalises same-sex sexual activity for men and women, with a maximum penalty of life imprisonment.
Thirdly, the fact that the constitution of Rwanda includes a broad prohibition of discrimination is neither here nor there if the state fails to take adequate steps to prevent persecution against individuals or groups who carry it out. This is again well-established, and was a point made by Lord Rodger, in HJ (Iran). The
2022 US State Department country report on Rwanda, to which I have referred, stated that there were reports that the Government did not adequately respond to reports of abuses and violence against LGBTQI+ persons. The report noted that the law in Rwanda does not explicitly recognise or protect individuals on the basis of sexual orientation, gender identity or expression, or sex characteristics, and does not explicitly prohibit discrimination against LGBTQI+ persons in housing, employment, nationality laws or access to government services, such as healthcare.
The letter of the Minister, the noble Lord, Lord Sharpe, to all Peers on 12 February this year referred to and relied upon the latest country information on Rwanda published by the Government in this country. This was published in January 2024, presumably for the purposes of bolstering the Government’s Rwanda policy and the legislation we are currently considering. We do not know whether the Government of Rwanda played any part in its content. Strikingly, the updated note makes no reference at all to the US 2022 country report on Rwanda.
Finally, I draw attention to the rather curious comment in the letter of the noble Lord, Lord Sharpe, that the assessment of risk faced by LGBTQ+ individuals, in line with the principles in HJ (Iran), is an “exceptionally high bar”. I do not understand that comment. Proof of risk is, in this case, like any other factual matter in civil cases, decided on a balance of probabilities.
In order to be consistent in their policy, and to avoid a head-on clash with domestic and international law, the Government need to reconsider their approach, both generally in relation to refugees who have a well-founded fear of persecution by virtue of being members of a particular social group and, more particularly, in relation to LGBTQI+ people who wish to live openly as such. I beg to move.