The last Legal Aid Barrister of the Year?

S Chelvan, LALY Barrister 2014, recalls the dark days of sexual identity asylum law and explains why he chose to practise in one of the most politically charged areas of the law GUIDE.

“With all the legal aid cuts, you will most probably be the last Legal Aid Barrister of the Year.”


Summarising comments made by a respected High Court judge over the summer, 2014 has been an eventful year; the devastating impact of cuts to legal aid, changes to judicial review, preceded by the limiting scope of funding to exclude the majority of immigration cases. The stigmatisation and demonisation of migrants will only grow worse with the forthcoming general election.

So why practise in this field?

My reasons for joining the Bar were entirely self-indulgent – I wished to empower myself as a gay man. In the 1990s, there existed an unequal age of consent, a ban on openly gay men and lesbians serving in the armed forces, section 28 (ban on promotion of pretend families), non-existent anti-discrimination legislation etc. The Bar Lesbian and Gay Group had only formed in 1994, the year after the Bar become one of the first professions to prohibit discrimination based on sexual orientation in its Code of Conduct.

In 1996, a friend of mine at Southampton University handed me a copy of the Inner Temple Yearbook, containing an article entitled The Time Has Come by Martin Bowley QC, the newly elected President of BLAGG. At a low point in my personal life, having recently come out to my family and been ostracised by them, Martin’s citation of Tony Krusher’s Angels in America still resonates to this day “ … The world only spins forward. We will be citizens.

The time has come.” I believed this then, as I do now, that the Bar is a profession which facilitates social justice and changes lives. My pupillage – split with a sabbatical year at Harvard gaining skills to apply international human rights law to gay and lesbian liberation ideals – centred on equality and human dignity, primarily related to developing a practice in immigration and asylum law. Linking the “fire in my belly” for self-empowerment as a gay man, and a first generation migrant (Jaffna Tamil), my ambition was to develop a niche practice in asylum claims based on sexual identity or gender identity, the LGBTI asylum claim. This required a sense of belief from my instructing solicitors and in 2001, in my first case based on sexual identity, my instructing solicitor Wesley Gryk – internationally renowned in same-sex immigration and asylum cases, responsible for my 2014 LALY nomination and now instructing me on two cases before the Strasbourg Court – noted the stubbornness and arrogance of this baby barrister.

In 1999, the House of Lords in Shah and Islam, in the obiter breadcrumbs from the judicial table, identified “homosexuals” within the refugee-protected “membership of a particular social group” 1951 Convention reason, due to their innate and immutable characteristics. The Court of Appeal, also in 1999 in the Indian asylum case of Jain, provided Lord Justice Schiemann’s continuum, within which an asylum seeker would have to be placed, either closer to the persecutory end with evidence of punishment, or at the free end, where they are “free to breathe”; the former availing them of refugee status.

My lay client, a gay man from Pakistan, had his asylum claim rejected by the Home Office. I arrived at the Tribunal in Hatton Cross armed with what could only be termed a volume of a skeleton argument, with every domestic and international authority cited, and the alarmed Home Office Presenting Officer asked the Immigration Adjudicator for a short adjournment. He returned, conceding the appeal, having read the skeleton argument. My client, on acknowledging what had just happened, broke down with a mix of tears of joy and cries of sheer horrific pain. He was in utter disbelief that after years of being rejected and isolated by the authorities, he would now be safe in the UK, as a refugee.

Dark days of gay asylum claims

The “dark days” of UK sexual identity asylum law were between 2004 and 2010; the Court of Appeal developed a body of case law which enabled the return of gay asylum seekers to countries where it was accepted they would suffer harm but for their (voluntary) discretion, which included, in 2009, a finding that it would be reasonable for them to respect a cultural relativism component. The development of the “discretion test” started with the misinterpretation, by the Court of Appeal in 2004 in Z, of the guidance of the High Court of Australia in Appellant S395, leading to a test whereby a gay asylum seeker had to prove that discretion would not be “reasonably tolerable” (the 2006 J test).

The 2005 Asylum and Immigration Tribunal in AT (Iran), held in obiter remarks in what is ironically known as the “flamers and flaunters” case, that not to apply discretion would be akin to acting uncivilized, as if rejection of discretion would be sub-human. AT (Iran) raised complaints directly against the judge by Stonewall and the UK Lesbian and Immigration Group. Stonewall’s 2010 No Going Back report, coupled with UKLGIG’s Failing the Grade report, highlighted the climate of disbelief within not only the Home Office, but also within the Tribunals and the Courts. Questions included “Why did you choose to be a homosexual when you know that it is illegal in your country?” UKLGIG recorded 98 to 99% of gay claims were being refused on the basis not on having failed to prove identity, but on the discretion test. Non-gay claims had a 73% refusal rate. There clearly existed an institutional breakdown.

The Supreme Court’s July 2010 landmark judgment in HJ (Iran) and HT (Cameroon) now provides guidance for the determination of gay asylum claims. HJ and HT is known affectionately as the “Kylie concert case” due to Lord Rodger’s reference to the ability of gay men to “be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates”, just as “male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates”. Finding the Court of Appeal’s creation of a “reasonably tolerable discretion test” was a misinterpretation of the Australian guidance, with the additional finding that discretion not being something a straight person would find reasonably tolerable, the Supreme Court provided guidance on how to determine a claim.

This case still enables dismissal on the basis that discretion is only due to family or social pressure – which in 13 years, none of my clients have provided as the sole reason for conduct on return, and is one I firmly believe does not engage fully with the life experiences of the gay appellant. The Upper Tribunal’s determination in June 2011 in SW (Jamaica) remedies this lacuna, noting that unless an individual proves to the potential persecutor that they conform to a “heterosexual narrative”, then they too are at risk. Unfortunately, the result of these judgments has been a shift from discretion to disbelief: having previously not had a problem in establishing sexual identity, since the July 2010 judgment in HJ the core issue is the ability to prove that you are gay.

Policy work

Over the past six years, I have also been involved in policy work in the UK and internationally. In 2011, within my Law PhD research at King’s College London, coupled with a reaction to the UNHCR desire to construct a questionnaire to prove a gay asylum claim, I created the DSSH (Difference, Stigma, Shame and Harm) model, to provide an alternative to a questionnaire of proscribed questions, and provide a template of trigger questions, to enable further in-depth investigation of a claim. The model starts with what Newsweek Europe in October 2014 defined as “a simple starting point which cuts across borders”, i.e. self-identification of difference by the applicant. It is not the fact that an individual is gay which is at the core of the claim, but that they are perceived as different by surrounding society and the potential persecutor which places them at risk, i.e. that they are not “straight enough”.

The model has been endorsed by the UNHCR in their International Protection Guidelines in October 2012, and New Zealand, Sweden and Finland are amongst a number of governments who apply DSSH to establishing a gay asylum claim. John Vine, Independent Chief Inspector of Borders and Immigration, recommended in his October 2014 report on the Home Office’s handling of LGB claims that the DSSH model be fully implemented, and I am working with the Home Office as a corporate partner to provide input into training.

“Thank you for saving my life”

Whilst financial incentives are the last reason to join the publicly funded Bar, what makes life as a legal aid barrister worthwhile is the “thank you”. Whilst celebrating the LALY award, our waiter was a former gay client from Kosovo, whom I had last seen at his successful asylum hearing nearly a decade earlier. Having seen the award trophy, and recalling my practice and his case, he told our table “If it wasn’t for you, I wouldn’t be here.” Another former client, OO (Sudan), who, after six years in the system, had been represented in the early stages by the phenomenal Kent Law Clinic (pro bono), Wilsons Solicitors and then TRP Solicitors (both legal aid), turned round to me after being told of the Home Office conceding his appeal and said, “Thank you for saving my life.”

This is why legal aid is so vitally important, providing a mouthpiece for those who know the words, but have no voice. This is why legal aid must not only survive, but flourish. I believe that there will be a long line of future Legal Aid Barristers of the Year, who should also be recognised. Otherwise, as Munby LJ recently held in Re D (A Child): “[T]he State has simply washed its hands of the problem, ... [so that] to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable.”

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S Chelvan

Chelvan practises from No5 Chambers, in London. He is the 2014 Legal Aid Barrister of the Year. His award is in recognition of his ground-breaking work in gay asylum claims and his national and international reputation in asylum law.