Bisexual woman who says she is at risk of imprisonment in her home country wins High Court appeal
An International Protection Appeals Tribunal had refused to recognise her as a refugee and/or as entitled to subsidiary protection. File photo
A bisexual woman who claims she is at risk of imprisonment due to her sexual orientation if sent back to Nigeria has won a High Court challenge to a refusal to recognise her as a refugee and/or as entitled to subsidiary protection.
The woman, who has children who are also applying for international protection, before leaving her home country received an "invitation" letter from the police to go to a station regarding "indecent sexual display on [a] female (bisexual)”.
This was a case of conduct likely to cause breach of the public peace, the letter said.
It goes on to invite her to report to a specified police station on a certain date and time so that “the office can carry out their investigation and for the conclusion of the case”. The letter finishes by stating that legal action will be taken if she does not honour the invitation.
After arriving here, she applied in June 2022 for international protection and was refused. She appealed and an International Protection Appeals Tribunal (IPAT) also rejected her application saying it "lacked general credibility".
She brought High Court judicial review proceedings against the IPAT and the minister for justice seeking to challenge that decision. The defendants opposed the challenge.
Mr Justice Garrett Simons set aside the decision and remitted the matter to a newly constituted IPAT to reconsider it and reach a decision in accordance with the findings of the court.
He said the impugned IPAT decision listed a number of documents which were considered in her appeal.
The police letter — which the judge said used the word “invitation” as a euphemism and it should more accurately be described as a police summons because of its mandatory nature — did not appear on the numbered list of IPAT documents.
The IPAT stated in its decision that "all of the documentation" and submissions had been "fully considered" in the appeal. But he said:
The supposed absence of any vouching documentation in her appeal is "expressly cited by the IPAT as part of its rationale for its credibility assessment," he said.
"It is inconceivable that the IPAT would have made such a statement had it had sight of the police summons." This was because the police summons unquestionably constitutes a form of vouching documentation, he said.
If valid, it was corroborative of her claim that she is at risk of imprisonment by the Nigerian State in consequence of her sexual orientation, he said. He also said the police summons was directly relevant to that aspect of the claim for international protection.
On its face, he said it indicates that the police were investigating conduct consisting of same-sex activity which was alleged to constitute a criminal offence, he said.
The prosecution or punishment of an individual by reference to their sexual orientation is capable of amounting to an act of persecution for the purpose of international protection if disproportionate or discriminatory, he said.
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