UKLGIG says Home Office's decision-making in LGBTQI+ asylum claims is still falling short

The UK Lesbian & Gay Immigration Group (UKLGIG) last week published an important new report on the standard of Home Office decision-making in asylum claims based on sexual orientation and gender identity.

You can read the 40-page report here. The principal author of the report was Lamb Building's Bojana Asanovic.

For the report, UKLGIG reviewed 48 substantive asylum interviews and Home Office refusal letters for claimants from 25 countries (dating between March 2015 and December 2017) and 32 decisions of the First-tier Tribunal.

Overall, the report finds that the standard of Home Office decision-making is 'still falling short' and decision-makers are not applying the correct legal standard of proof of 'reasonable likelihood' in all asylum claims based on sexual orientation or gender identity.

Leila Zadeh, Executive Director of UKLGIG, said: "Our research has found that the Home Office is setting the bar too high for LGBTQI+ people to claim asylum. LGBTQI+ people are being faced with a range of barriers: refusal if they don't claim asylum straight away, dismissal of supporting evidence, and humiliating questioning."

The report's key findings are as follows:

• Persistent questioning directed at sexual practices is not an issue and there is considerable evidence of good practice in relation to establishing parameters of interviews. However, there are still some concerning interview practices and failures to apply the asylum policy instruction (API) on sexual orientation rigorously, including instances in which claimants' preferred terminology for their identity wasn't used and the interviewer neglected to establish an open and reassuring environment in all cases.

• Decision-makers routinely rely on delay in claiming asylum as damaging to claimants' credibility, which fails to sufficiently recognise the lived experiences of LGBTQI+ asylum seekers. Additionally, delay is often the basis for devaluing individual items of supporting evidence.

• Decision-makers often expect that claimants should be able to articulate sophisticated accounts of how their sexual orientation developed which is at odds with how claimants understand their own experience.

• The expectations of a sophisticated inner conflict with respect to condemnation of same-sex relationships in a person's religion is common and reflected both in questioning in interview and in reasons for refusal.

• Decision-makers often place very limited or no weight on corroborative evidence of sexual orientation, such as evidence from friends, partners, participation in LGBTQI+ groups, attendance at events, social media exchanges. Such evidence is often labelled 'self-serving'. Failure to produce such evidence, however, is damaging to the claim.

• Decision-makers sometimes consider claims not credible because people take risks to pursue relationships with their chosen partners.

• The Home Office does not always apply the correct legal assessment of the reasons why someone would conceal their sexual orientation on return to their country of origin.

• There is some evidence of confusion by decision-makers in their manner of questioning and analysis in claims when gender identity arises.

The report concludes: "The Home Office has in recent years shown willingness to review its policies and practice in the difficult area of international protection claims based on sexual orientation and gender identity. Much has changed and improved – claimants in sexual orientation cases are normally treated with respect, using terms they use to describe themselves and the Home Office caseworkers do not seek sexually explicit evidence. Nevertheless, the refusals of many claims still reveal defects in assessments of credibility and the Home Office in some cases incorrectly applies the legal test in HJ (Iran) when assessing the relevance of and reasons for concealment of sexual orientation."

UKLGIG says the Home Office's existing Asylum Policy Instruction (API) on sexual orientation in asylum claims is a good base from which to work towards better decision-making, but a better application of the standards in the API is needed.

Leila Zadeh said: "The Home Office should live up to its own guidance and apply the correct standard of proof, requiring asylum applicants to establish only that it's reasonably likely that they will be persecuted".