Asylum: Claims based on sexual identity

Standard Note: SN/HA/5618

Last updated: 29 June 2010
Author: Melanie Gower
Section Home Affairs Section

The Conservative-Liberal Democrat Government Coalition Agreement pledged that asylum

seekers who are at proven risk of imprisonment, torture or execution due to their sexual
orientation or gender identification would not be removed from the UK. It has not announced
details of what, if any, policy changes may be introduced as a result of this commitment.

The 1951 Geneva Convention relating to the Status of Refugees does not identify
persecution on account of sexual orientation as one of the grounds for granting refugee
status. Claims for asylum on this basis are usually done by attributing the persecution to
‘membership of a particular social group.’

Over the past couple of years the UK Border Agency’s approach to assessing sexual
identity-based asylum claims has come under particular scrutiny. Some organisations
working with gay and lesbian asylum seekers have criticised the quality of decision-making
and suggested that there is “systemic discrimination” against gay and lesbian asylum
seekers within the asylum system.

In 2009 the Court of Appeal determined that the UK Border Agency could refuse asylum if a
person could be reasonably be expected to act “discreetly” in their country of origin in
expressing their sexual identity. The Supreme Court is now considering the cases involved.

Constituents seeking advice about a potential asylum claim should be advised to seek
professional advice from a suitably qualified specialist in immigration and asylum law. The
organisations referred to in the disclaimer below, and the UK Lesbian and Gay Immigration
Group’s database of solicitors may be helpful in this regard. The Stonewall guide to refugee
status and humanitarian protection for lesbian, gay and bisexual people may also be of
interest to constituents with queries related to this topic.

This information is provided to Members of Parliament in the performance of their

parliamentary duties, and may not fully address the specific circumstances of any particular
individual. It should not be relied upon by either Members or others as legal or professional
advice, or a substitute for it. If specific advice is needed, a suitably qualified professional
should be consulted. The website of the Office of the Immigration Services Commissioner
explains about the regulation of immigration advisers and includes a useful online ‘adviser
finder’. The Immigration Law Practitioners' Association may be able to suggest someone with
experience in this area from its list of specialist practitioners. The Immigration Advisory Service
provides advice and representation (which, if eligibility criteria for publicly funded legal services
are fulfilled, may be free of charge), and the Community Legal Service website may also be
helpful.

This information is provided subject to our general terms and conditions which are available
online or may be provided on request in hard copy. Authors are available to discuss the
content of this briefing with Members and their staff, but not with the general public.
Contents

1  The grounds for claiming asylum 2 

2  The UK’s approach to sexual identity-based asylum claims 2 

3  The ‘discretion’ argument 4 

4  The Coalition Government’s policy 6 

1 The grounds for claiming asylum

The 1951 Geneva Convention relating to the status of Refugees sets out the grounds for
recognising a person as a refugee. In order to qualify for refugee status, a person must
demonstrate that they are outside their country of origin and, due to a “well-founded” fear of
persecution on account of their

• race;

• religion;

• nationality;

• political opinion ; or

• membership of a ‘particular social group,’

are unable or unwilling to seek protection from the authorities in their own country. 1

In 2008 the UNHCR issued a Guidance note relating to refugee claims based on sexual
orientation or gender identity. 2 It notes that although the 1951 Convention does not identify
persecution on account of sexual orientation as one of the grounds for claiming asylum, it is
possible for an asylum claim on this basis to be made under the other categories of the
Refugee Convention. This is usually done under the ‘particular social group’ heading. The
UNHCR guidance note also discusses how to apply the other elements of the Convention’s
definition of a refugee, such as the types of harm that could be considered to amount to
“persecution” and how to assess an applicant’s credibility, to sexual identity-based claims.

Asylum claims are also considered against the protections afforded by the 1950 European
Convention on Human Rights (notably Article 3 - prohibition on torture and inhuman or
degrading treatment and Article 8 - right to respect for family life and private life).

2 The UK’s approach to sexual identity-based asylum claims

Detailed information about the UK’s asylum policies and processes can be found in the
Asylum Policy Instructions (APIs), which are followed by UK Border Agency (UKBA) staff
responsible for asylum applications. Currently there is no API which specifically deals with

1
1951 Convention relating to the Status of Refugees
2
UNHCR, Guidance note relating to refugee claims based on sexual orientation or gender identity, 21
November 2008

2
claims based on sexual identity, although some of the other APIs refer to sexual identity-
based claims. 3

All asylum claims are considered on their individual merits. The website of the UK Lesbian
and Gay Immigration Group (UKLGIG) contains the following guidance for persons intending
to seek asylum in the UK on the basis of their sexual orientation:

What do I need to show to qualify as a refugee on the grounds of my sexual

orientation?

You need to show that there is a reasonable degree of likelihood that if you were
returned to your home country you would face serious harm because you are a gay
man or lesbian. Serious harm must come from either the government authorities or
other sections of the population from which the government is either unable or
unwilling to protect you.

Serious harm would include the possibility of extra-judicial execution, physical violence,
torture and denial of liberty. It may also include very serious discrimination.
Prosecution for consensual same sex acts may of itself amount to persecution.

You will need to make clear what is the harm that you fear and you will need to show
that your fear is justified. This means proving your case as best as possible with
evidence. The immigration courts have given guidance in certain cases as to whether
gay men or lesbians are at risk of persecution in particular countries. Whether you are
at risk will change as circumstances change in your home country.

In deciding whether or not to apply for asylum, you should take into account the fact
that the vast majority of applications for asylum are refused. Cases are commonly
refused either because the applicant is not believed or because the Home Office thinks
the fear is not well founded (or what is feared is not serious enough to amount to
persecution). This is not an easy route to remain in the UK and an application for
asylum should not be made unless you have a genuine fear of persecution. 4

As indicated above, UKBA asylum case owners take account of relevant country of origin
information when assessing asylum applications. Researchers in the Home Office’s Country
of Origin Information Service (COI Service) produce a range of country of origin information
reports for UKBA asylum case owners. These are based on published information from
external sources such as the US State Department, human rights organisations and news
media, or information gathered in fact-finding missions and interviews. The work of the COI
Service, including the content of their reports, is evaluated by the Independent Chief
Inspector of the UK Border Agency’s Independent Advisory Group on Country Information.

UKBA asylum case owners also use country specific asylum policy documents (‘Operational
Guidance Notes’ and ‘Country Policy Bulletins’) which are produced by the UKBA. These
documents draw on information within the COI Service reports and refer to relevant caselaw
developments including country guidance cases, in order to “provide clear guidance on
whether the main types of claim are likely to justify the grant of asylum, humanitarian
protection or discretionary leave.” Operational Guidance Notes and Country Policy Bulletins
are not evaluated by the Independent Chief Inspectorate of the UK Border Agency.

3
See, for example, the guidance on interpreting the ‘particular social group’ criteria in the API on ‘Assessing the
Claim’.
4
UKLGIG website, Asylum Overview (undated; accessed on 24 June 2010)

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As the UKLGIG guidance indicates, the fact that the UKBA has recognised that some people
have a well-founded fear of persecution on account of their sexual orientation does not mean
that everyone who applies for asylum on this basis will be given asylum in the UK. For
example, applications may be refused because the person’s account of persecution is not
believed, is not considered to demonstrate a sufficient risk of persecution, or because it is
considered that the applicant could avoid persecution by relocating to another area. It is also
common for claims to be refused on the grounds that the applicant could return to their
country of origin and avoid future persecution by being “discreet” about their sexual identity
(discussed further below in section 3).

The UKBA’s approach to asylum claims based on sexual identity has come under the
spotlight over the past couple of years. There have been some high-profile “anti-deportation”
campaigns in support of some gay and lesbian asylum seekers from countries with well-
documented evidence of homophobia and discrimination. In some instances these
campaigns have resulted in positive grants of asylum. 5

Two recent reports have considered the quality of UKBA decision-making on asylum claims
based on sexual orientation. In April 2010 UKLGIG published a report based on an analysis
of 50 UKBA ‘reasons for refusal’ letters, which identified a number of flaws in the UKBA’s
approach to assessing asylum applications based on sexual orientation. 6 UKLGIG states
that the sexual identity-based asylum claims that it is aware of have an initial refusal rate of
98-99% (compared to an overall asylum refusal rate of 73% in 2009). 7 Research published
by Stonewall in May 2010, based on interviews with lesbian and gay asylum seekers, legal
representatives, asylum support workers and UKBA officials, identified similar concerns. 8
The report’s accompanying press release suggested that asylum seekers who had been
persecuted on account of their sexual orientation are being routinely denied protection in the
UK because of “systemic homophobia” within the asylum determination system. 9

Both reports made a range of recommendations for change, including improved training to
UKBA asylum case owners and Immigration Judges on assessing sexual identity-based
claims, more accurate country information, an end to the use of detention and fast-track
processing for sexual identity-based claims, and improved UKBA policy guidance.

3 The ‘discretion’ argument

The fact that an applicant has previously exercised discretion in order to avoid drawing
attention to their sexual identity is often cited by UKBA officials as a reason for refusing
asylum. It is argued that a person could avoid future persecution by being “discreet” about
their sexual identity in their country of origin. 10

The line of argument often leads on to discussion of what is often referred to as the ‘Anne
Frank’ principle. Lord Justice Pill elaborated on this principle in a Court of Appeal
determination in 2009:

5
See, for example, R Verkaik, The Independent, ‘Gay student who faced execution in Iran granted asylum in
Britain’, 21 May 2008, and the blog LGBT Asylum News.
6
UK Lesbian and Gay Immigration Group, Failing The Grade Home Office initial decisions on lesbian and gay
claims for asylum, April 2010
7
Ibid, p2
8
Stonewall, No going back: Lesbian and gay people and the asylum system, May 2010
9
Stonewall media release, ‘Asylum research uncovers damning Home Office failures, 24 May 2010
10
R Verkaik, The Independent, ‘Iran is safe for ‘discreet’ gays, says Jacqui Smith’, 23 June 2008

4
 It would have been no defence to a claim that Anne Frank faced well-founded fear of
persecution in 1942 to say that she was safe in a comfortable attic. Had she left the
attic, a human activity she could reasonably be expected to enjoy, her Jewish identity
would have led to her persecution. Refugee status cannot be denied by expecting a
person to conceal aspects of identity or suppress behaviour the person should be
allowed to express. 11

Lord Justice Pill’s comments were made in the context of the case of HJ (Iran) & HT
(Cameroon), which considered appeals from two homosexual asylum seekers from Iran and
Cameroon whose claims for asylum had been refused.

Although the Court accepted the validity of the ‘Anne Frank’ principle, it dismissed both
men’s appeals. It found that when assessing claims for asylum based on sexual orientation,
decision-makers should consider whether the applicant could reasonably be expected to
tolerate the need to be discreet in matters relating to sexual identity in their country of origin,
bearing in mind the beliefs held in that society. The Court highlighted the role of in-country
evidence in making such decisions:

The need to protect fundamental human rights transcends national boundaries but, in
assessing whether there has been a breach of such rights, a degree of respect for
social norms and religious beliefs in other states is in my view appropriate. Both in
Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about
homosexual practices. In considering what is reasonably tolerable in a particular
society, the fact-finding Tribunal is in my view entitled to have regard to the beliefs held
there. A judgment as to what is reasonably tolerable is made in the context of the
particular society. Analysis of in-country evidence is necessary in deciding what an
applicant can expect on return and cannot, in my view, be ignored when considering
that issue. 12

The cases of HJ and HT have recently been considered by the Supreme Court, although it
has not yet issued its judgements. 13

Commenting on the Court of Appeal’s reasoning and its own analysis of refusal decisions,
UKLGIG has described the current position as “convoluted and complicated”:

In 56% of the cases reviewed, case owners found that the person could return to a
hidden life in their country of origin, even where people provided clear evidence of
having suffered severe harm due to their sexual identity in countries such as Iran and
Jamaica with appalling track records of persecuting lesbians and gay men. These
decisions ignored the fact that lesbians and gay men often live secret lives due to
societal repression and fear of being found out, not out of any voluntary desire to hide
their sexual identity.

The United Nations High Commission for Refugees recently stated that “a person
cannot be expected or required by the state to change or conceal his or her [sexual]
identity in order to avoid persecution. Nor is there a duty to be “discreet” or take certain
steps to avoid persecution, such as living a life of isolation, or refraining from having
intimate relationships.” Further, requiring lesbians and gay men to remain closeted is
discriminatory and can amount to persecution in itself. No “discretion” requirement is

11
Pill LJ, para 10 in HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of
State for the Home Department EWCA [2009] Civ 172 ; [2009] WLR (D) 87
12
Pill LJ, Ibid, para 32
13
UKSC 2009/0054 and UKSC 2009/0057

5
 imposed on other asylum seekers, for instance, those claiming religious or political
persecution. Why is it being required of only one group of people?

(...) part of the problem is that case owners focus on “homosexual acts” only and not
on sexual identity. For many case owners, being “discreet” simply means avoiding
having sex in public or in a place where one could be discovered. This, case owners
say, in the “cut and paste” language used in many refusal letters, is a part of living in a
“civilised society” and is “the accepted norm, regardless of sexual orientation.” This
analysis ignores the reality that being lesbian or gay in the home countries of asylum
seekers is in itself not conforming to the “accepted norm”. Sexual identity
encompasses much more than having sex with a partner. It includes the ability to meet
a potential partner, to live with a partner, to socialise and to express one’s sexuality
without fear of grave harm. 14

4 The Coalition Government’s policy

The Conservative-Liberal Democrat Government Coalition Agreement includes the following
commitment:

We will stop the deportation of asylum seekers who have had to leave particular
countries because their sexual orientation or gender identification puts them at proven
risk of imprisonment, torture or execution. 15

In June 2009 Phil Woolas, then Immigration Minister, posted an article on the political blog
Labourlist.org, which set out the previous government’s approach to asylum claims on the
basis of sexual orientation. 16

Some commentators have questioned whether, in the absence of any specific policy
changes, the commitment represents a change from the previous government’s policy, and
have highlighted that the Coalition Government has not withdrawn the previous government’s
submissions to the Supreme Court in the cases of HJ and HT. 17

A Home Office spokesman was reported in The Independent on 23 May 2010 as saying that
the Government is considering the best way of implementing its policy. In response to
reports that proposed new laws in Uganda could make Ugandan nationals in the UK liable to
be extradited and imprisoned in Uganda for committing homosexual acts, the spokesman
also confirmed that the Government would not extradite a person who is wanted overseas for
an offence which is not a crime in the UK. 18

14
UK Lesbian and Gay Immigration Group, Failing The Grade Home Office initial decisions on lesbian and gay
claims for asylum, April 2010, p.4-5
15
HM Government, The Coalition: our programme for government, May 2010, p.18
16
Labourlist.org website, LGBT refugees will be marching free from fear this weekend, 3 June 2009
17
B Keenan, guardian.co.uk, ‘Law must protect gay asylum seekers’, 21 May 2010
18
E Duggan and J Merrick, The Independent, ‘Virtually all gay asylum-seekers sent back to persecution’, 23 May
2010