On 20 November 2012, the Provincial Administrative Court in Warsaw admitted the complaint of a homosexual Ugandan national who challenged the decision denying him a refugee status and other forms of legal protection.
The Helsinki Foundation for Human Rights joined in the proceedings as a community organisation. If no cassation complaint is filed, the foreigner won’t be expelled from Poland and the Council for Foreigners will reconsider the foreigner’s application with the court’s directions.
The Polish Society of Anti-Discrimination Law and the Campaign Against Homophobia joined in the proceedings as community organisations. Also the UNHCR filed its written observations in the case pending before the Provincial Administrative Court. The proceedings were observed by a representative of the Human Rights Defender’s Office.
In his refugee status application, the Ugandan invoked his justified fear of persecution. In Uganda, homosexuals are subject to legal sanctions, discrimination, public harassment and bullying. Polish administration authorities of both instances refuse to grant him protection and ordered his expulsion.
The Council for Foreigners found the testimony of the Ugandan to be incoherent and the information on his homosexual orientation untrustworthy. On that basis the Council denied him protection.
In the proceedings conducted before administration authorities the foreigner submitted a medical certificate on his sexual orientation. Nevertheless, the Council decided that the certificate should not be evidence in the case.
“The Ugandan contended in his complaint that the Council’s decision to challenge his medical certificate was unsubstantiated”, says Karolina Rusiłowicz, a HFHR’s lawyer. “Arguably, a medical certificate on sexual orientation should not be required in such cases. Also, incidental findings as to the credibility of documents should not determine the outcome of a case, here, the question of the foreigner’s sexual preferences”, adds Ms Rusiłowicz.
In its oral reasons for the decision, the court held that the Council failed to establish facts of the case and obtain any evidence that would provide factual basis for challenging the applicant’s medical certificate.
The court referred to the UNHCR’s note stating that in the absence of evidence as to the applicant’s sexual orientation, the decision-maker has to rely on that person’s testimony alone.
The judgment is not final.
