Comprehensive review includes analysis of over 30 Home Office reports by immigration barrister Dr S Chelvan
The Independent Chief Inspector of Borders and Immigration yesterday published a thematic review of country of origin information (COI) on sexual orientation and gender identity or expression (SOGIE) produced by the Home Office's Country Policy and Information Team (CPIT).
Image credit: UK GovernmentThe 458-page report can be downloaded here.
The bulk of the report, Annex C, is an analysis of over 30 individual Home Office reports and country policy and information notes (CPINs) by the prominent immigration barrister Dr S Chelvan of 33 Bedford Row. Chelvan was appointed in October 2019 as the Independent Reviewer on SOGIE COI reports.
For his review of the Home Office's COI reports, Dr Chelvan marked each one on a scale from "Excellent" to "Priority Urgent Action".
Chelvan's review also features useful background and guidance on the role and importance of country information in SOGIE claims.
Drawing on the key 2010 UK Supreme Court case of HJ (Iran), Dr Chelvan noted that in his review, there was a "need to identify within the Country of Origin Information material, adopting the binding guidance of Lord Rodger at paragraph 82 of HJ (Iran), 'the available evidence that [LGBT+] people who lived openly would be liable to persecution in the applicant's country of origin'."
Chelvan continued: "The first limb of Lord Rodger's guidance addresses a need to establish (to the lower than civil standard 'reasonable degree of likelihood') whether the SOGIE applicant is, or will be perceived to be on return, SOGIE. This importantly recognises the risk to those who do not live a 'heterosexual narrative', ie living, or being perceived to live, a straight/cisgendered life, by engaging in a socially expected heterosexual cisgender sex/gender role.
"Secondly, an assessment will be required of what would occur to a gay, lesbian, or bisexual person, if they lived 'openly' in the country of origin. This is directly relevant to this COI report review, noting the focus is an objective (country background evidence to risk to those who are 'open' SOGIE), rather than subjective (individual risk factors on return).
"If, as a result of living openly, there would be persecution, then the fear is well-founded. Thirdly, if it is found that they will live 'openly' and consequently be subjected to a real risk of serious harm, then they are entitled to refugee status. Nevertheless, if, on the other hand, they are discrete, due to this fear of persecution, then they are also a refugee. The court realised that the number of gay martyrs will be small, and the human condition results in the majority being discrete due to such fear. If the only reason for being discrete is family or social disapproval, then the individual is not entitled to refugee status. This does not ignore the many cases of honour killing as a result of family disapproval, for that in itself will also result in a fear of persecution."
With consideration of the 2017 Court of Appeal case of LC (Albania), Chelvan continued: "The Court of Appeal in LC (Albania) importantly addressed the need for country background evidence to show how conformative conduct would need to happen in order to evade persecution … Both HJ (Iran) and LC (Albania) address the crucial role of country information, specifically Home Office country information, to address refugee status determination from an objective (background), rather than subjective (individual risk) basis."
David Bolt, the Independent Chief Inspector of Borders and Immigration, said in his report that the Home Office had updated most of its country reports in response to Dr S Chelvan's concerns.
Bolt noted: "CPIT responded relatively quickly (within three months) to update most of the CPINs that the reviewer had identified as requiring 'Urgent' or 'Priority Action'. But, at the time of writing (October 2020), one (Sri Lanka) had only just been published and another (Malawi) was outstanding. [The Independent Advisory Group on Country Information] has not had the opportunity to review the updated CPINs or to revert to the reviewer for his comments. However, for the most part, CPIT appears to have addressed the reviewer's specific concerns. The notable exception is the updated Sri Lanka CPIN."
The Home Office said in response to Chelvan's review that it was pleased that the reviewer had ranked over half of the reports as "Good" or better, but pointed out that this was the reviewer's "opinion" and that "the absence of any key criteria, scoring system or methodology for how these countries were ranked, makes it difficult for CPIT to … learn anything from this in its current guise".
In his overall assessment, the Independent Chief Inspector found that there had been a concerning under-investment by the Home Office in COI.
Bolt said: "Managing within finite resources will always be a challenge for CPIT, as it is across the whole of the Borders, Immigration and Citizenship System (BICS). Like all business areas, CPIT has to make difficult decisions about priorities and what will and will not get done. However, as ICIBI has pointed out previously, the reduction in staff numbers in 2014 when the functions of the Country Specific Litigation Team (CSLT) and Country of Origin Information Service (COIS) were combined to form CPIT, and more recently the abstractions of CPIT staff to other business areas, has left an already small team looking seriously under-resourced."
Bolt added: "I believe that the Home Office needs to invest more resources in COI production and more oversight of its use … The Home Secretary has referred to fixing the 'broken' asylum system. While the production and use of COI is not broken, any review of the system must ensure that it is as good as it can be in supporting efficient and effective decision making."
The Independent Chief Inspector made three recommendations in his report. Two of the recommendations were, however, not accepted by the Home Office in its response (available here).
In rejecting Bolt's recommendation on building up the capacity of the Country Policy and Information Team, the Home Office noted: "[T]he demand for COI is potentially limitless, whereas we must operate within tight financial constraints and prioritise accordingly. We therefore cannot commit to increasing the capacity of the team further."