Kenneth Macharia fears he will be subjected to persecution and violence if forced to leave UK
A gay rugby player who is facing deportation to Kenya, where he fears he will be subjected to persecution and violence because of his sexuality, has had a fresh claim for asylum rejected.
Kenneth Macharia, whose plight prompted more than 100,000 people to sign a petition calling on the Home Office to halt his removal, has been told he must now leave the country “without delay”.
The 39-year-old – who plays for Bristol Bisons, a gay and inclusive rugby club – says he is “feeling depressed” at the decision, which came as a big surprise, adding: “I am feeling hopeless at the moment.”
A Home Office decision letter sent to Macharia’s solicitor acknowledged that gay sex in Kenya was punishable by up to 21 years in prison and that LGBT people have reportedly been subjected to harassment, blackmail and rape.
It is with a heavy heart that Kenneth received this letter from the home office today and has been told he will not be allowed to stay home in the UK. The fight is not over and we need your support to keep Ken home with his friends and family. pic.twitter.com/tGm8txAgaD— Bristol Bisons RFC (@bisonsrfc) June 3, 2019
However, the letter added: “Whilst same-sexual activity between men has been criminalised with a penalty of up to 21 years in prison this law is rarely applied and the objective evidence does not establish that LGBT persons are likely to be subjected to persecution or serious harm.”
The Home Office’s decision comes days after Kenya’s high court last month upheld laws that criminalise gay sex in what was described by a campaigner as a “a sad day for the rule of law and human rights”.
Macharia, who first claimed asylum in May 2016, arrived in the UK on a student visa in 2009. Macharia, a mechanical design engineer, has twice been granted extensions of his leave to remain, as a student and then as a highly skilled migrant.
He has been through a legal appeals process, which has dragged on for several years. His initial claim for asylum was rejected in October 2016; so too was an appeal against the decision in December that year.
After being granted permission to appeal to the upper tier, it was dismissed in August 2017. He was twice refused the right to appeal to the court of appeal in October 2017 and June 2018. Further submissions were refused in September and October 2018. Macharia, from Glastonbury, lodged new submissions in November and December which were the subject of the Home Office’s latest decision. A judge previously accepted that Macharia is gay but dismissed his claim that he would suffer persecution in Kenya.
In its latest letter, the Home Office rejected Macharia’s concerns that he would be targeted because he was a “high-profile homosexual man” based on a string of news stories in the Kenyan press about his case, some of which prompted homophobic comments.
Facebook comments seen by the Guardian underneath a Kenyan news article about Macharia in November describe him as a “very bad example to the society in Kenya”. Another states: “We don’t need more demons here.”
The Home Office letter said: “No evidence has been submitted to show that you will be singled out and persecuted by the authorities in Kenya as a result of your case being reported in the media.” The letter noted that homophobic comments were “very distasteful” but there were no direct threats to Macharia.
In its decision, the Home Office also cited its own March 2017 document on “sexual orientation and gender identity” in Kenya, which noted that although “same-sex sexual activity between men is criminalised with a penalty of up to 21 years in prison … it is not clear if there have been any convictions”.
It added: “Sources suggest that the law on ‘unnatural offences’ is rarely applied and there have only been two recent reported cases of its use, one of which was dismissed and the other still ongoing at the time of publication.”
The Home Office document conceded that the police have arrested “some LGBT persons” but added: “This is usually followed by their release shortly afterwards.”
The document also acknowledged: “The police have also reportedly harassed LGBT persons, or those believed to be so, and have subjected some to blackmail and rape. Public order laws have been used by the police as a means to arrest LGBT persons, especially those working in the sex industry.”
But it added: “There have, however, also been some occasions where the police have protected LGBT persons against mob attack. In general the evidence available does not establish that LGBT persons are likely to be subject to persecution or serious harm by the state.”
The Home Office’s decision letter concluded: “Taking the above objective evidence into full consideration alongside the reports enclosed, there is no evidence to support your claim that homosexual’s [sic] in Kenya suffer persecution by either the state or non-state actors.
“It is also noted from the above objective evidence that effective state protection is likely to be available which you could access should you fear reprisals from mob justice or other people.”
The document added that “there is nothing to show that you would be persecuted by the state as a result of your sexual orientation as a homosexual”.
A Home Office spokesman said: “This government has a proud record of providing protection for asylum seekers fleeing persecution because of their sexual orientation or gender identity.
“All available evidence is carefully and sensitively considered in light of published country information. All decisions on claims based on sexual orientation are subject to an additional safeguard reviewed by a second experienced caseworker.”
Macharia said he would consult his lawyer about his next steps.