The UK Lesbian and Gay Immigration Group (UKLGIG) is an independent organisation established in 2003 that ensures “dignity and equality in the asylum process for LGBTQI+ asylum seekers”.
In a report, titled ‘Still Falling Short: The standard of Home Office decision making in asylum claims based on sexual orientation and gender identity’ the group has identified, on the basis of reviewing 48 substantive asylum interviews and Home Office refusal letters for claimants from 25 countries dating between March 2015 and December 2017, as well as 32 decisions of the First-tier Tribunal made since March 2015, several lingering problems with the way in which the Home Office administers asylum claims made on the basis of a fear of persecution owing to a person’s sexuality or gender identity. These lingering problems can even go against the letter and spirit of the Home Office’s own policy instructions. [u1]
In brief, the Home Office process expects a sophisticated narrative of the process of coming to terms with one’s sexuality and applies a ‘one case fits all’ approach to assessing the credibility of those seeking asylum on this basis.
The threshold being applied by the Home Office is, consequent to this and to other practices, in many cases impossibly high, and risks rejecting genuine claims, with catastrophic human consequences.
Hopefully this report will go some way to improving Home Office policy in dealing with asylum claims on the basis of sexuality and/or gender identity.
Professionals will note that these lingering problems are often the basis of adverse decisions and are invited to read the report in full here as a precursor to its citation in relevant claims.
The report found that the anticipated danger of focusing too closely on sexual aspects of a claim is not being realised. However, there are other dangers: often, there has been a demonstrable failure to establish an “open and reassuring environment” in all cases in which the applicant feels comfortable discussing intimate details of their personal lives.
This can lead to an applicant becoming confused, and giving inconsistent answers. There is further a problem with establishing a common set of terminologies, which are sufficiently comprehensible to both parties. The problem is expounded by the use of translators, who can inadvertently damage an applicant’s credibility by providing anything less than a full translation or by taking linguistic or cultural shortcuts in their translation.
Narratives of self-realisation and religious conflict
According to the report, “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 report also identifies that there is an underlying set of implicit expectations that feed in to this “sophisticated narrative” that deal with an applicant that comes from a religious background, or a country with a religious culture that is different to the secular, Anglican culture of the United Kingdom.
The Home Office expects that there should be, in the traditional three Act structure of good storytelling, a realisation, a conflict and a resolution, in each and every case.
A failure to engage with this prejudiced narrative can damage an application for asylum, in such measure as that[u2] a person who does not demonstrate a major turbulence with their realisation of the conflict between religion and sexuality (which may or may not be scripturally existent) is seen to be non-genuine in their claim.
Delay in claims
The reliance by the Home Office on any period of delay in claiming asylum as being damaging to an applicant’s credibility “fails to sufficiently recognise the lived experiences of LGBTQI+ asylum seekers.”
The Home Office also relies on delay in producing individual items of supporting evidence as indicative of the weakness of the claim.
Alongside the above, the report identified as a major failing the trend of decision makers and judges to 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. According to the report, “such evidence is often labelled ‘self-serving’. Failure to produce such evidence, however, is damaging to the claim.”
This leaves the applicant in a catch-22 situation, whereby this evidence is subject to heightened scrutiny and can lead to deep fissures in an applicant’s claim if it is not entirely consistent with the applicant’s responses at interview, despite the problems with the interview process that have been identified above. Whereas failure to corroborate their claims, which may involve requesting others in precarious situations to divulge sensitive information about themselves and the applicant and their relationship, is also taken to be a flaw in the claim.
Risk and credibility
For those applicants who do in fact pursue relationships with their preferred partners, the Home Office often counters that these claims are not credible because they are considered to be actions that are too “risky” for the applicant to have undertaken.
Home Office refusal letters featured the following examples of what was considered implausible or unreasonable risk taking behaviour:
• living with a same-sex partner (July 2015)
• having anonymous sex in a park (August 2017)
• having sex behind locked doors in a rented room (February 2017)
• having sex in the family house behind locked doors while others were elsewhere in the property (October 2016)
• protesting when a lesbian partner was harassed by men (February 2017) •
• embarking on a sexual relationship prior to having discussed it (that relationship having built up on attraction over a period of two years) (January 2016)
• kissing the partner in the street at night during a blackout (March 2015) • attempting to kiss a friend without knowing whether he was attracted to the claimant (where the two had been showing affection over a period of weeks and claimant’s advances had not been rebuked) (November 2016)
• writing and sending love letters between women who lived in different cities and taking and sending photographs ‘holding each other too much’ (February 2017)
There is clearly a need for decision makers to observe the nuance of the Asylum Policy Instruction which itself states that “risk taking behaviour can be plausible. In instances in which the law provides for sanctions against homosexual acts, if a claimant indicates an awareness of the illegality of any of their actions, caseworkers must not assume that this should have prevented the claimant from engaging in those actions. Even if they know that they are against the law, it should not be an assumption that individuals do not carry out illegal acts in their country of origin.”
Further, UKLGIG states that decision makers lack “awareness of the importance for everyone to seek affection and connect with another human being” in its assessment of risk-taking and credibility.
The report concludes that there are “defective assessments of credibility and incorrect application of the legal test in HJ (Iran) when assessing future concealment. The overall observation from this study is that the Home Office application of the correct standard of proof is problematic. All a claimant must prove is that their account is ‘reasonably likely’ and too often this was not the standard applied.”
Gender identity cases
UKLGIG is of the opinion that an “updated Asylum Policy Instruction on gender identity is long overdue and its release is awaited. Further training on gender identity is likely to be beneficial.”