AN IRANIAN boxer who should have been removed from the United Kingdom after failing in an asylum claim four years ago has been given another chance to convince immigration officials he is gay.
A judge criticised the UK’s “dysfunctional” border control system under which the man, 29, had been able to remain in the country, but said any decision to remove him now had to be made properly, and a ruling against him had been flawed.
Lord Stewart directed at the Court of Session in Edinburgh that the United Kingdom Border Agency (UKBA) should reconsider the case, taking into account previously-omitted evidence about the man’s mental condition.
The court heard that the man, referred to as AB, had claimed to be homosexual only a few weeks after a ruling by the Supreme Court in London that gays who faced persecution in their home country could be given refugee status in the UK, and two years after he had first been told to leave.
Lord Stewart said: “If our border control system is dysfunctional, it is not the job of the courts to make it more dysfunctional. He should have left the UK four years ago when he became rights-of-appeal-exhausted. But we are where we are, and the decision whether he is now to be removed or is now to stay should be properly made.”
The man said he arrived in a lorry in 2008, and although he did not consider himself to be gay, others perceived him to be gay.
“He is apparently a skilled boxer. Other members of his boxing clubs would not spar with him,” said Lord Stewart.
UKBA refused his asylum claim, holding that, even if he were gay, the treatment he had received in Iran was, at most, discrimination and not persecution in terms of the Refugee Convention 1951. An immigration judge rejected an appeal by the man who, nonetheless, remained in the UK.
His lawyers made three further submissions to UKBA, the last of which was rejected in May 2012. Officials did not believe he was gay, and questioned why his first claim to be homosexual had been five weeks after the Supreme Court judgment in 2010.
AB said he feared persecution and execution in Iran, and his lawyers argued that he had suffered a mental breakdown in 2009-10 while struggling to reject his true sexual orientation, and that he had gradually come to terms with his sexuality.
Lord Stewart was told AB had been sectioned under mental health legislation and had spent three months in Stobhill Hospital, Glasgow. He was diagnosed as schizophrenic. He heard voices from an angel and thought he was Jesus or the brother of Jesus. He believed he was in contact with famous people such as President Obama. On a number of occasions, he had interrupted church services by going on to the altar and declaring he was the son of God and could cure anyone with HIV or cancer.
“On the face of it, the mental health material...is potentially relevant to the issue of whether he is, or is at risk of being perceived as, homosexual were he to return to Iran,” said Lord Stewart.
“I have to conclude that the (UKBA) decision-maker did not bring the mental health material into her evaluation of the prospects of success for AB’s homosexuality claim and that this was an omission...it is plain that the material was being founded on to support the claim for sexual asylum.
“This is not a case in which, applying anxious scrutiny, I feel able to say that it would have made or would make no difference to put the mental health material into the mix. Therefore, the decision has to be re-made taking account of the left-out material.”