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OTS Case Study: Immigration Appeal – Citizen of Nigeria

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The client in this case was a Nigerian national who approached our firm after his previous applications for leave to remain on Article 8 grounds had been refused. The basis of his application, while resting on grounds of family and private life, was that the client feared persecution due to his sexual identity (Homosexual male) and feared that returning to Nigeria would mean persecution for him and his family members.

The Home Office had refused on the ground that our client didn’t have a partner or a child in the UK, therefore failing the requirements of family life and there were no exceptional circumstances for granting him leave outside of Immigration rules. Prior to making this decision the Home Office had separately invited the client to personally apply for Asylum if he considered himself to be in danger of persecution upon return. Despite this, no consideration was given to his sexuality when making the decision, or the fact that he faced persecution upon return to his country.

Our Immigration department was instructed to appeal against the Home Office decision. Our team of specialist Immigration appeal lawyers worked closely with the client and our barristers to prepare the case to an exceptionally high standard. The best outcome was achieved in this case as the Appeal was allowed and the client was granted on Asylum grounds and Human Rights grounds under Article 3 freedom from torture and inhumane and degrading treatment or punishment.

To arrive to such a decision the Judge had accepted our legal argument on Immigration and Human Rights grounds and evidence put before him on behalf of our client. The Tribunal acknowledged that the reason for which our client wanted to remain in the UK stem from fear of returning to Nigeria as a gay man. The Tribunal also considered Paragraph 327, which does not require the appellant to make application for Asylum in person. This was an important point that allowed the Tribunal to hear the submissions on our client’s behalf on his refugee status, even though to formally claim for Asylum had been made prior to the hearing.

In order to proceed to hearing the submissions on our client’s refugee status, the Tribunal noted that the Home Office had no need to make any additional checks such as verifying additional facts or documents to be able to make a decision on an Asylum claim. Therefore, there was no reason for which the Home Office would have not been able to consider our client’s case from the prospect of United Kingdom’s obligation under Refugee or Person in need of International Protection Regulations 2006. The Tribunal further noted that the Home Office had already confirmed the UK as the responsible state for the Asylum claim.

The Definition of refugee according to Article 1A(2) of the Refugee Convention is:

Owning to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside of the country of his former habitual residence ...is unable or, owing to such fear, is unwilling to return to it.

Therefore, proving of a well-founded fear of prosecution, as well as belonging to a particular social group is always essential to success in this branch of Asylum cases. In this case the Tribunal was satisfied that our client was a gay man, therefore belonging to a particular social group and that he had well-founded fear of persecution, based on the evidence of recent legislative changes in Nigeria, as well as arrests that have taken place in the country.

The Human Rights Article 3 provides that no-one shall be subject to torture or inhuman or degrading treatment or punishment.

In this case there was a clear and substantial risk for our client of being subject to such treatment and punishment as Nigerian law provides for prison sentence for same sex sexual acts and same sex marriages. Therefore, the Tribunal concluded that it was not possible to say that prosecution of gay men were rare in that country. This led to accepting that our client’s fear of return to the country was well-founded.

Furthermore, as our client had well-funded fear that his family could also suffer by association with him, the Tribunal granted him anonymity. This means that no report of the proceedings will directly or indirectly identify our client or members of his family. This is an important protection measure for many people fearing prosecution in their countries extending to their families, as well as being shunned by the community in the UK- fear, that keeps them from applying for Asylum on grounds of sexuality.

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