The article deals with people claiming asylum in the UK on the basis of a well-founded fear of persecution due to their sexual orientation or gender identity (SOGI). Although the UK is a country that respects and actively promotes SOGI rights, the UK does not always provide adequate protection to those who come to the UK in need of refuge. For many years, people persecuted because of their SOGI were not considered a member of a particular social group and were therefore not afforded international protection pursuant to the 1951 Refugee Convention. This began to change in 1999 in the House of Lords decision of Islam and Shah and in 2010 the Supreme Court in HJ (Iran) confirmed the right to refugee status even if the person could avoid persecution by concealing their sexual orientation. However, despite the Supreme Court judgment, considerable obstacles remain.

This article discusses these obstacles—namely, the continued and often unlawful use of the discretion test; that bringing criminal charges due to an individual’s SOGI does not constitute persecution; and elements of the asylum process that frustrate legitimate claims for asylum.

Source: Birkbeck Law Review