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Human rights claims on the basis of homosexuality in asylum applications & appeals

Written by Danielle Cohen, 25 May 2018

We all represent individuals, both in asylum applications and appeals, who ask for asylum or make a human rights claim on the basis of homosexuality. They fear persecution as members of a particular social group and or ill-treatment in breach of Article 3 on account of their sexuality. Despite the fact that in the 1951 Refugee Convention there is no explicit recognition of persecution for reasons of sexual orientation or gender identity, the drafters of the convention used broad enough language to cover such instances, notably by recognising that people could be persecuted for membership of a particular social group.

There has been a growing awareness of the rights of LGBT individuals. In particular the UN has documented violations against LGBT people and articulated the human rights strands in the context of sexual orientation and gender identity. Jurisprudence in the area of refugee law also continues to evolve.

Members of the LGBT community are persecuted for many reasons, one of which is their departure from the 'majority norm', or from the accepted status quo. Society seems to be afraid of social changes and the gay way of life is perceived to be a threat to home, family and culture.

As a Practitioner I have seen a number of trends in the treatment of asylum claims by LGBT people refused by the UKVI. The first trend was to demand discretion. This trend questioned whether the 1951 Convention protects persons who could have avoided persecution by simply concealing their sexual orientation. The idea that gay people should tolerate the requirement to be discreet about their sexual orientation was dismissed by the UK Supreme Court in 2010 in HJ and HT.

The second trend was criminalisation and the challenges involved in determining whether the existence of a law criminalising same sex relations amounted to persecution. There was a time when the mere existence of laws criminalising same sex conduct was insufficient for recognition of refugee status, and regular enforcement of the law was required.

The third and current trend is sexualisation. This means the over-emphasis by decision makers on sexual acts, rather than on sexual orientation as an identity. This trend leads to intrusive and humiliating questioning about our clients' sexual lives and overlooks the fact that LGBTI people are often persecuted just because of the threat they represent to the social and cultural mores. The threat of persecution is rarely simply about the enforcement of laws against a particular sexual act.

There is also an over-emphasis, in refusal letters, of the applicants' alleged failure to deal with feelings about sexuality or feelings of attraction towards the same sex. This approach is unfair and unreasonable in the context of questioning, for example, a gay man from a conservative Islamic background about his sexuality. The approach that the Home Office takes is often contrary to their own policy instructions on sexual orientation issues in asylum claims, published on 3rd August 2016, which acknowledge that some lesbian, gay and bisexual people may originate from countries in which they are made to feel ashamed, humiliated and stigmatised due to their sexual orientation and may feel a strong sense of shame and stigma. The Home Office doesn't take into account the fact that feelings about intimate and sexual matters are hard to explain to anyone, let alone for an asylum applicant to explain to an unknown civil servant, in the stressful environment of a Home Office asylum interview.

The fourth trend is stereotyping. Sexual orientation and gender identity are not visible in the same way that race and nationality and perhaps other particular social groups may be. This has meant that the Home Office are preoccupied with obtaining evidence of whether an applicant is in fact LGBTI. For lack of guidance and knowledge, the Home Office relies on their own personal assumptions or stereotypes to decide whether somebody is LGBTI or not, which risks undermining the impartiality of the decision maker. In particular, in the case of men, some are not believed because they do not frequent LGBTI venues, do not have tattoos or other markers of homosexuality, nor do they dress in a manner considered to be stereotypically gay. Some are not believed because they have not provided witnesses, or shown evidence of making public displays of affection towards individuals of the same sex. It is obvious that an individual can be considered to be authentically heterosexual or homosexual in orientation without complying with certain given stereotypes.

In social psychology it is acknowledged that stereotypes may or may not accurately reflect reality. While we acknowledge that stereotypes can be positive in functioning as time and energy saving mechanisms for understanding the world, these same stereotypes can also reflect biased perceptions of people's own social context. My point is that the Home Office should not use stereotypes as short cuts to make sense of applicants' cases.

One of our clients reported in his assessment to a psychologist that he was a gay man but also a shy person, who therefore did not show affection towards partners in the way stereotypically considered to be normal for a gay man. He never goes clubbing, but that doesn't mean he is not gay. Social psychology theories of stereotyping concur that just because an individual does not correspond to the stereotype of a particular social group, does not mean that he or she is not a valid member of that group.

The fifth trend, which often goes hand in hand with stereotyping, is that of disbelief. Not all Courts or the Home Office accept the self-identification of the applicant as LGBTI. The Home Office interview is often the stage at which LGBTI persons self-identify and when the most vital decisions concerning their future occur. And yet the asylum interview process is a lottery, and many asylum interviews are rushed, biased and resolved by cut-and-paste decisions.

On 11th February 2018 The Guardian newspaper published an article about a former Home Office staff member employed in deciding asylum claims. The staff member said that colleagues had a harsh, even abusive attitude towards applicants, mocking them to one another and employing intimidation tactics during interviews. The journalist spoke to three former decision makers or caseworkers, each employed at a different regional office, who all stopped working in these roles in 2016 and 2017. They all said that they had tried to do their job fairly but struggled owing to productivity targets and would use their own stock paragraphs which they would put into the refusal minutes. Two of the whistle blowers talked about cultural disrespect among some colleagues towards asylum seekers, and that 'many caseworkers looked at asylum seekers as liars'.

Such attitudes lead to difficulties for people to gain effective access to protection and such practices may be incompatible with the principle of the Refugee and Human Rights law. As practitioners, we should emphasise that there should not be over-emphasis on sexual acts and one should concentrate on sexual orientation as an identity. We should not allow our clients to be subjected to intrusive and humiliating questions about their sexual lives and the Home Office should humbly accept that even those responsible for providing protection and assistance may not always fully appreciate the challenges LGBTI refugees and asylum seekers face.

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This article was originally published in the Immigration Law Practitioners' Association April publication.

This blog post originally appeared on the Danielle Cohen UK Immigration Solicitors blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN