The 1951 Refugee Convention, supplemented by the 1967 Protocol, enshrined the commitment of the nations of the world to offer protection to those who flee their countries of origin, due to a well-founded fear of persecution based on either their race, religion, nationality, political opinion or membership of a particular social group; who find themselves outside their country of origin or habitual residence, and are unwilling or unable to avail themselves of the protection of their home state . In December 1950, the signatories at the UN General Assembly never contemplated sexual or gender identity to ever be part of a Convention reason ground for protection.
While the Netherlands in 1981 was the first country to recognise refugee protection of gay men, it took the UK until 1999 in Shah and Islam  2 AC 629 to recognise that homosexuals may also be provided protection through the Particular Social Group Convention reason.
In July 2010, the Supreme Court in HJ (Iran) and HT (Cameroon)  UKSC 31 (aka the “Kylie concert case”), unanimously held that gay men, lesbians and bisexuals had the right to live “freely and openly” without the threat of persecution. At para 82, Lord Rodger provided guidance for administrative and judicial decision-makers on how to determine such claims. In summary the four stage test is as follows:
- Is the individual gay, or will he be perceived to be?
- Do openly gay people in the country of origin face a well-founded fear of persecution?;
- Will the individual be open on return? If so then he is a refugee.
- If the individual is voluntarily discrete, only because of family or societal pressure, then the individual is not a refugee;
- if on the other hand, a material reason for discretion is the well-founded fear of persecution, then the individual is entitled to refugee status.
This test has been the subject of academic attack, but the UK Border Agency has supported the test in the subsequent Supreme Court case of RT (Zimbabwe)  UKSC 38 in 2012. In 2011 the Upper Tribunal (Immigration and Asylum Chamber) amplified the extent of the test to straight women in Jamaica who would be perceived as lesbian unless they adhered to a specific heterosexual narrative, which included having a male partner, children or being receptive to the advances of a persecutory male caller (SW (Jamaica)  UKUT 00251 (IAC)).
From discretion to disbelief
Suddenly, since July 2010, supposedly due to a fear of false claims, the shift has been from discretion to disbelief. The battleground is now firmly centred in the individual overcoming the first limb of the HJ test and “proving” that they are gay.
How does an individual prove that they are gay? In 2008 and 2009 the Czech and Slovak authorities were receiving evidence from sexologists who had attached machinery to the genitals of men and women to measure their physical responses to pornography.
Since the publication of the UK Border Agency’s asylum policy instructions (API) on Sexual Orientation issues in the asylum claim in October 2010 – amended in July 2011 to separate the gender identity element – the issue of credibility is accepted by the UKBA to be one of “current” sexual identity (NR (Jamaica) applied  EWCA Civ 856), and that self-identification should be the starting point. Any additional enquiry is accepted by the UKBA to be sensitively handled (see API on Sexual Orientation issues in the asylum claim, p 11).
Nonetheless, not a single refusal decision letter seen by this author, or colleagues, let alone cites or applies this internal guidance. Decisions are based on countless adverse credibility findings arising from an approach fixated with establishing sexual conduct in the bedroom, rather than exploring issues surrounding expression of sexual identity in the “outside world”.
In the 2012 case of a 16-year-old gay teenager from Nigeria, counsel for UKBA cross-examined his foster mother about a photograph she had of the appellant and his best friend, which she stated showed from their body language that they were gay. Counsel asserted: “How do you know they are gay…they weren’t kissing each other in the photograph were they?”
In another 2012 case, the UKBA refused to accept evidence from a recognised gay refugee from Uganda that the appellant was gay, as he had first met him at a party where they had stripped down to their underwear, and he knew that he was attracted to the witness due to the state of his arousal. The UKBA’s stance was that straight men could have also attended the event.
The culture of disbelief within UKBA and some members of the immigration judiciary, which includes examples such as: “How does a lesbian come out at 13?”, and questions such as one posed to the UK national boyfriend of a gay man from Uzbekistan – “when did you first engage in buggery with your boyfriend?” – lead some asylum seekers to desperate measures. In some cases, gay asylum seekers in the UK feel forced to provide photographic and, in some instances, video footage of them engaging in same sex conduct to prove they are gay. The following email exchange in December 2012 shows how legal representatives, in this case a caseworker and solicitor, treated such evidence:
“We have a client that the Home Office refused his asylum claim.
“Client on his part has provided additional evidence including a video showing him during the act. Accordingly to client, his partner on this video cannot be traced as this was a one night stand. However, according to client he obtained the permission of the other party before filming.
“According to a colleague who has seen the video, the video is very convincing and leave [sic] little or no doubt about client’s sexual orientation.”
“We had a similar case where the client said he was gay. He forwarded videos and the IJ [immigration judge] in Bradford did not have objections for the video to be played in court. However, at the CMR [case management review] we obtained the specific details of the POU [presenting officers unit] who should be sent the material. The POU assessed before the full hearing that the client was not aroused.
“I was told once that I should not put forward evidence that I have not viewed. If your client’s instructions are that he wants the evidence in, then I think it is our duty to follow the instructions and not feel embarrassed.
“After all, it is for the client still to prove that he is gay and not the Home Office. I don’t think turning up to court stating client is gay and leaving it at that would assist the client. If all you have is the DVD, then I think you should run with it.”
The above illustrates an extreme but not isolated example. The UK Lesbian and Gay Immigration Group accepts that asylum seekers seek guidance on whether they should rely on such material. The use of such material is inhumane or degrading. No-one should resort to such extreme measures.
The response from Mark Stobbs, director of legal policy at the Law Society to the above scenario, is as follows:
‘Solicitors are in a very difficult position. They have a duty to act in their clients’ best interests and, given the attitude of the UKBA, it is easy to see how they might feel that putting even degrading material before a tribunal may serve those interests. In our view, the courts and UKBA need to establish ways of assessing the truth of a client’s statement without, in effect, forcing them to provide evidence of this sort.’
A Bar Council spokesman said:
“This raises important issues which require further expert thought and examination; we can see that the current situation is a very difficult one. This has been raised with the Bar Council’s equality and diversity committee, which will look more closely at present arrangements.”
The 2007 Yogyakarta principles provide a definition of sexual orientation:
“Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”
The humane approach must engage with the Yogyakarta definition and explore not just conduct, but also the emotional and affectional component to sexual identity. It is the recognition of non-conformity, outside the home by the potential persecutor, which lies at the heart of the refugee claims based on sexual or gender identity.
What is the alternative?
Clearly all gay asylum seekers will have to “prove” they are gay. The burden of proof is on the appellant, but the standard of proof is a low one, ie, the “reasonable degree of likelihood/ real risk” (ie, lower than the civil standard of proof). In 2011, as a response to the call by UNHCR at a meeting of non-governmental organisations, I created the “DSSH” model. DSSH stands for “Difference, Stigma, Shame and ‘Harm”. The central experience is not waking up one day and realising that the person is gay, but in the main, recognition of difference.
When the recognition of difference occurs, there is stigma, attached to difference. Stigma results from the fact that the family, the neighbours, your community will not accept you because of your difference. Shame is the internalised impact of stigma. Shame does not have to cross the threshold of mental illness, as it is a natural consequence of marginalisation. Difference, Stigma and Shame are common themes in the narrative of most lesbian, gay, bisexual, trans or intersex (LGBTI) individuals. What renders the individual a refugee? The valid fear of harm, either from the state, or non-state state sanctioned harm, due to a lack of effective state protection.
The United Nations High Commission for Refugees, endorse the model in the October 2012 Guidelines on International Protection, citing the International Association of Refugee Law Judges paper in the footnote [§ 62]:
“Ascertaining the applicant’s LGBT background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision-maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.”
The model provides triggers, to enable a detailed narrative to be provided by the asylum-seeker on the experiences surrounding their claims within a detailed statement and/or interview. The core issue is not that the individual is gay, but they do not conform to a specific heterosexual stereotype held by the potential persecutor, ie, they are not “straight enough”. This non-conformity leads to drastic life-threatening consequences, hence the reference to “curative rapes”.
In allowing the asylum claim of the gay teenager from Nigeria, the First-tier Tribunal in September 2012 found the following:
“The appellant’s narrative is that he claims that he has always felt different, he has not conformed to heterosexual norms and his account of gay men in Nigeria leading double lives is inherently plausible... I find that if the appellant is returned to Nigeria, then it is very likely that he would present as a gay man and has said that he does not want to live a lie and that he is who he is. I do not find that the appellant, given his young age, would be willing to live discreetly.”
In 2013, for LGBTI asylum seekers, the core issue is Difference.
S. Chelvan, Barrister, No5 Chambers