Homosexual refugee must return to Uganda

The Polish Council for Foreigners decided to expel a homosexual from Uganda to his home country.  The Council upheld a decision of the Head of the Office for Foreigners who refused to grant the foreigner a refugee status or other type of protection.

The Ugandan came to Poland in August 2009 and applied for a refugee status. He claimed that in his country of origin he had been persecuted because of his sexual orientation. “Under the Ugandan Criminal Code, same-sex sexual relationships are punishable with a prison term or even a life sentence”, explains Karolina Rusiłowicz, a HFHR lawyer. “In the course of the proceedings, the Ugandan produced documents confirming that he had been arrested because of his orientation”, adds Ms Rusiłowicz.

The first-instance authority, the Head of the Office for Foreigners, refused to grant the man a refugee status, subsidiary protection or a tolerated residence permit and decided to expel him from Poland. Having been supplied with a sexologist’s medical certificate, the authority acknowledged that the foreigner was gay. The Office also accepted that the applicant fears to come back to his home country but held that the current situation in Uganda provided no objective justification for his concerns.

In February, the Ugandan Parliament re-introduced the “Anti-Homosexuality Bill” which provides for harsher penalties for maintaining voluntary homosexual relations, including possibly a death penalty for “more severe” acts. According to the proposed law, a failure to report a violation of the Act to authorities would also be a criminal offence. Amnesty International named the Bill a “grave assault on human rights”. Furthermore, there are numerous accounts to confirm that homosexuals in Uganda are threatened by persecution or even death.

“The Ugandan argued this in his appeal to the Council for Foreigners, the second-instance body. He said he would be at risk of persecution if he returned to the country”, says Karolina Rusiłowicz. The Council affirmed the foreigner’s contention that homosexuals in Uganda face a high risk of being persecuted solely on the basis of their sexual orientation. However, the appellate body challenged the medical certificate and resolved that the appellant was not gay.

According to the Council, the appellant’s sexual orientation needs to be established in the context of the general credibility of his testimony. The Council pointed out certain discrepancies in the foreigner’s statements given at different stages of the proceedings and concluded that he acted instrumentally and made up his story of homosexual orientation in order to legalise the stay in the EU.

“Most surprisingly, the Council for Foreigners completely changed the justification of the decision and the already established facts of the case. Additionally, the Council failed to take any action to explain the issue essential to the outcome of the proceedings. Because of this, the foreigner was unable to counter the raised arguments as the Council’s decision is final”, explains Ms Rusiłowicz.

The HFHR will assist the man in his efforts to obtain a refugee status in Poland. Foundation lawyers are drafting a complaint to the Provincial Administrative Court in Warsaw and the HFHR will apply to be included in the judicial review proceedings as a community organisation.