February 24, 2021
At Wilson Solicitors we have a long history of campaigning for the rights of LGBT+ migrants in the UK immigration system. For LGBT+ history month we have asked Nick O’Loughnan, a Trainee Solicitor in our immigration department, to explore the present challenges for LGBT+ asylum seekers.
‘LGBT+ history month’ tends to place the struggle for LGBT+ liberation in the past; however, homophobic legislation and pervasive heteronormativity continue to thwart true liberation for many LGBT+ identifying people. The pursuit of equality and justice is particularly palpable for our LGBT+ asylum seeking clients. Rather than focus on history, I would like to explore the present challenges in LGBT+ refugee status determination (RSD) in the UK.
Across the world, currently 72 jurisdictions criminalise same-sex sexual activity between men and 44 between women. 11 jurisdictions impose the death penalty for the same-sex sexual activity and 15 criminalise the gender identity and/or expression of transgender people.
The method by which LGBT+ asylum seekers fall under the arguably rigid scope of the Refugee Convention is by constituting members of a ‘particular social group’ (PSG). The UK follows the cumulative approach of the EU Qualification Directive, wherein a PSG is defined as follows:
I would like to point out here that this approach is arguably already flawed. It fails to account for diverse and fluid queer identities, and may also encourage monosexism within the RSD process. There is limited data on bisexual asylum claim refusal rates ‘because [the Home Office does] not track bisexuals, only LGBT people overall. When [Gay Star News] tried to get more information using a Freedom of Information request, [the Home Office] refused [it]’. It is, however, commonly accepted amongst immigration lawyers that bisexual asylum claims are often more difficult to win. This is clearly discriminatory, and leads us to a discussion on ‘concealment’ – there seems to be a pervasive belief within the Home Office that those who identify as bisexual may be able to more easily ‘conceal’ their sexuality in their home country and therefore not face risk of persecution.
Prior to the Supreme Court case of HJ (Iran), in which Wilson Solicitors represented one of the appellants, the UK courts held that people may be returned to their home countries if it were ‘reasonably tolerable’ for them to conceal their sexual orientation in order to avoid persecution. The HJ (Iran) ruling put an end to this wrongful expectation and provided the current four step framework for deciding LGBQ asylum claims, as UKLGIG summarises briefly:
i. Is it reasonably likely that X is gay [or LGBQ] or will be perceived to be gay [or LGBQ]?
ii. Is there a real risk that gay men [or LGBQ people] would face persecution if they lived openly in X’s country of origin?
iii. Would X in fact live ‘openly’ (or would X conceal X’s sexual orientation) if returned to the country of origin?
iv. If the answer to question (iii) is that X would conceal X’s sexual orientation, why would X do so?’
If the answer to point 4 is that it is due to fear of persecution, then X is a refugee. This ostensibly provides an adequate framework by which LGB asylum seekers may succeed in their claims, and applied correctly has undoubtedly assisted in the right outcome for many applicants. It does not, however, consider the fluidity of sexuality, nor intersectional and country-specific approaches to queer identities. This heteronormative, non-inclusive approach is stark in Lord Rodger’s assertion within HJ (Iran) that ‘male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates’.
Over the past ten years, cracks have appeared in the application of HJ (Iran), mostly due to Home Office decision makers poorly applying the HJ (Iran) four point test, but notably very recently in the Court of Appeal case of YD (Algeria). In December 2020, the Court of Appeal upheld the approach of country guidance case of OO (Algeria) ‘where a gay man had to flee his family home to avoid persecution from family members, he would attract no real risk of persecution in his place of relocation because, generally, he would not live as a gay man.’ So discretion and concealment is seemingly back on the cards, and ‘it would be a question of whether the individual could show that, due to his individual circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria.’ How does one evidence that an action would be ‘unreasonable and unduly harsh’ ? Often through medical evidence that demonstrates the detrimental effect on mental health.
The courts are once again condoning concealment and alarmingly hinting that we must pathologise queer identities in order to meet its evidential requirements. This judgment is especially worrying when we consider that not only is same-sex sexual activity criminalised in Algeria, in 2019 a student was murdered and ‘his gay’ [sic] written in his own blood on his wall, and in September 2020 there were mass convictions following arrests at a ‘gay wedding’. There seems to be a wilful ignorance to state sanctioned discrimination obviously having wide-reaching power to influence and condone society’s persecutory actions. With such striking evidence of state and non-state persecution of queer-identifying people, it is difficult to understand the argument that queer-identifying people in Algeria are concealing their sexuality/identity only due to familial shame rather than out of fear of persecution.
If we then look to countries such as Russia where same-sex sexual activity is not criminalised, but Section 28 style legislation criminalises the distribution of materials promoting LGBT relationships to minors, we witness a worrying landscape for the courts’ application of the definition of ‘persecution’ and the reasons that people may seek to conceal their sexual orientation. Gay men have recently been forced to flee Russia with their children born by surrogate. When societal shame is dictated by law and policy, how can it be stated that its outcomes are not persecutory when they are essentially enacted by the state? I do not want to go into an overwrought discussion of the definition of ‘persecution’ (not defined in the Refugee Convention), but UNHCR provides a wide definition here.
Looping back to the basics of LGBT+ RSD in the UK, although the Home Office’s policy document on Sexual orientation in asylum claims offers guidance incorporating HJ (Iran), Home Office decision makers frequently fail to take an intersectional approach to LGBT+ identities. Often incredibility findings are due to an applicant’s inability to outline a ‘realisation journey’ that a decision maker may easily place in a rigid box. This is contrary to the human rights protections HJ (Iran) seeks to offer. An astute advocate may be able to guide an LGB asylum applicant through the HJ (Iran) framework; however, this first requires the Home Office to find it credible that the applicant is in fact LGB. If the first step in HJ (Iran) test fails, the claim fails – often a Home Office policy failure (or implementation of policy failure) rather than a failure on the part of the client or advocate.
The RSD process must move away from heteronormative approaches, medicalising and pathologising queer identities and seek to take an intersectional approach that acknowledges the diversity of the LGBT+ spectrum. The absolute goal must be LGBT+ protection and liberation, and therefore a rigid framework must be approached carefully as we guide our clients through it. Although we have seen forward movement in cases such as Mx M (El Salvador) where it was held that non-binary gender identity can form the basis of an asylum claim, there is still a long way to go.
Despite potential underlying issues with HJ (Iran), it succeeds in reminding us that the Refugee Convention is a humanitarian instrument and must be employed as such, while unfortunately cases such as YD (Algeria) disrupt this.
Until an intersectional update to HJ (Iran) is forged, we must not allow its application to be watered down so that concealment once again becomes a viable prospect for those fleeing what are clear, well-founded fears of persecution.
If you are an LGBTI+ asylum seeker in need of support we recommend two great charities working with LGBTI+ asylum seekers in the UK – UKLGIG and Micro Rainbow International. To contact Nick please email firstname.lastname@example.org
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.