Easy to claim, harder to prove – The challenges of refugee status based on sexual orientation and gender identity

14 June 2017

According to the Home Office, the number of Lesbian, Gay and Bisexual, Transgender, and Intersex (LGBTI*) individuals claiming asylum has risen by 400% in the last 5 years. Although the number of individuals who have specifically claimed sexual orientation and gender identity as their reason for refuge is unclear, these figures are expected to rise. As such, it is important that the UK appropriately deals with these individuals in a sensitive manner in order to first establish that the individual does in fact fall under the LGBTI* bracket. 

Article 1A(2) of the 1952 Refugee Convention defines a refugee as 

Any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.’ 

From this definition, the European legal framework has been shaped in order to include LGBTI* individuals who face persecution on the ground of sexual orientation and gender identity. Although individuals are able to rely on this definition to claim asylum, the difficulty lies in proving their queerness. By failing to match the western hetero-normative understanding of what queer means, LGBTI* individuals face the difficult task of evidencing their sexuality and gender identity in what can be described as degrading interrogations by the Home Office. 

LGBTI* persecution is still very much a real issue in the 21st century as there are more than 80 countries around the world that consider homosexuality illegal and in 5 of these countries, the death penalty can apply.  With countries like Jamaica, Nigeria, and Pakistan known for their discriminatory laws and treatment towards the LGBTI* community, it is often easy to associate this persecution with continents other than our own. However, recently, the media has turned its attention to the barbaric detainment and torture of men suspected of being gay in Chechnya, highlighting how the persecution of those supposedly gay can and is occurring closer to home.  

Reflecting on this background, UK law has undergone changes in relation to how LGBTI* individuals, making asylum claims, are dealt with.  It was the case that asylum claims made by gay men and lesbians were refused as it was believed that they could return to their home country and be discrete, essentially hiding their sexuality. This was decided by the Court of Appeal in the case (HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010]. In this case, two men from Iran and Cameroon claimed asylum in the UK on the basis of their homosexuality. This Court of Appeal ruling received widespread criticism; however the Supreme Court overturned this decision soon after. As it cannot be expected to hide your religion, the Court argued that you could not be expected to hide your sexuality. Despite this positive development, it appears that the Home Office has shifted its direction from telling applicants to be discreet, to a culture of disbelief as caseworkers have on occasion struggled to believe certain individuals fall into the LGBTI* bracket. 

For an applicant to prove their sexuality or gender identity, they must provide an oral testimony at their Home Office interview. At this stage, individuals can face inappropriate and discriminatory treatment because of their testimonies. Previous accounts tell of a lesbian asylum seeker who was told she could not possibly be homosexual because she had children, and a bisexual asylum seeker who was pressured to show the caseworkers explicit images of him having same-sex intercourse to prove his sexual orientation. Therefore the asylum seeker’s credibility is dependent on the caseworker’s own understanding of sexual orientation and gender identity. If the asylum seeker does not match the caseworker’s perception of what it means to be queer, then they cannot be deemed to be LGBTI*. Therefore, by relying on stereotypes to shape their understanding LGBTI*, these stereotypes are perpetuated.

The asking of these invasive questions and relying on a ‘one fits all’ principle has prompted a response from the Home Office. This response came in the form of ‘Asylum Policy instruction – Sexual orientation in asylum claims’ (API). This document provides clarity on how to carry out interviews:

Questions based solely on stereotypical behaviour cannot be relied on in order to assess evidence put forward by a claimant… it does not allow those authorities to take account of the individual situation and personal circumstances of the claimant for asylum concerned.’

Instead of asking explicit questions about sexual activity, the guidance states:

‘The focus of the interview must be on allowing the claimant to provide a narrative that supports their claimed sexual orientation’

Whilst the API, to some degree, positively helps to prevent individuals being asked degrading questions, caseworkers need to be cautious about how they approach these sensitive topics. Probative interrogation may be perceived as offensive, disrespectful and can degrade the claimant’s human dignity. In spite of this, caseworkers are still allowed to quiz the individual on their understanding, links and associations with LGBTI* groups in their own country, for example where they socialise. 

The API offers a much-needed improvement to regulating the types of questions that are asked to LGBTI* asylum seekers. However, with an increasing number of LGBTI* people seeking asylum, more needs to be done to ensure that interviews with these asylum seekers are treated sensitively and respectfully, taking into account their cultural difference. By not treating LGBTI* asylum seekers’ claims with openness, and by having a narrow understanding of sexual orientation and gender identity, the prejudice that these foreign nationals face from their home country will be mirrored upon their arrival in the UK.

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