A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador [2020] UKUT 313 (IAC).

Background to asylum claim 

Mx M is a citizen of El Salvador who had originally claimed asylum as a gay man, but whose identity had evolved during their time in the UK. They now identify as non-binary and has actively campaigned on LGBTI social and political issues.

While living in El Salvador, Mx M was subject to a daily barrage of homophobic abuse, including having rubbish thrown at them and on one instance a bag of urine. They had also been beaten up by police officers because they chose to dye their hair blonde. 

Their original asylum claim based on sexual orientation had been refused and an appeal dismissed on the basis that the suffering to which they had been subjected did not reach the threshold of “persecution” required for an asylum claim. The daily abuse and missile throwing was just discrimination, said the First-tier Tribunal, while the attack by the police had only occurred on one occasion. 

Mx M subsequently made a fresh claim for asylum based on their non-binary identity. This claim was also refused but attracted a further right of appeal. On this occasion, the First-tier Tribunal essentially held it was bound by most of the findings of the previous hearing and dismissed the appeal. 

Mind your language 

The Upper Tribunal started by emphasising the need for appropriate language in such cases. The appellant requested the use of gender-neutral terminology and “Mx” instead of “Mr” or “Ms” as a form of address. 

The judge reminded decision-makers they should use gender terminology which respects the chosen identity of claimants before them wherever possible, in line with the Equal Treatment Bench Book for judges and Home Office guidance on Gender Identity Issues in the Asylum Claim. 

She noted that all previous decisions had referred to the claimant as “he” for no good reason.

Applying the case of HJ (Iran)

But the focus of the judge’s criticism was the wholesale disregard of previous decision-makers for the House of Lords case of HJ (Iran) [2010] UKSC 31. 

HJ (Iran) is the UK’s leading authority on persecution based on issues of gender or identity. While that case focused on gay men, it established the principle that certain identities constitute innate characteristics which people cannot be expected to change. 

HJ (Iran) requires four questions to be asked:

1. Is the appellant a member of a particular social group?
2. Do members of this particular social group face persecution in El Salvador if they live openly?
3. How would the appellant behave if returned home?
4. If they choose to live discreetly, is any part of that decision informed by a fear of persecution?

Not unreasonably, the judge was surprised that HJ (Iran) had not found its way into any of the four previous Home Office and tribunal decisions involving Mx M. 

She considered that the lower tribunal’s failure to make a clear finding on the first HJ (Iran) question at the outset had led it astray in the rest of its analysis. She noted that it was not clear the First-tier Tribunal had even understood the extent to which Mx M’s claim had evolved since the previous hearing. Although the tribunal had recorded the evidence of a specialist psychotherapist that the claimant now identified as non-binary, nowhere was the matter considered or any finding made on this core issue. In particular:

At paragraph 37 the Tribunal appears to reduce this evidence, concerned as it is with the core of the Appellant’s identity as a human being, to this: 

“The factors that are different relate to the Appellant’s change of appearance, his style of dress, his dyed hair…”

Turning to the second HJ (Iran) question, she found three further errors in the decision. Firstly, the First-tier Tribunal had failed to consider all the relevant evidence. There had been considerable country background material before that court detailing the treatment of LGBTI individuals in El Salvador, with specific evidence relating to the ill-treatment of those perceived to be transgender women. 

Secondly, she made a finding of perversity. She noted that the First-tier Tribunal had concluded that LGBTI people returned to El Salvador were likely to face specific threats, including being targeted by gangs on the basis of their sexual orientation, and being subject to physical and sexual violence – yet had deduced from this that LGBTI people were not at risk of persecution in El Salvador. “Without more detailed explanation I am at a loss to understand how that evidence was logically capable of underpinning that conclusion,” the judge commented.

The third error was the “approach taken to the Appellant’s lived experiences”, which had amounted to “unpleasant” discrimination rather than persecution, according to the First-tier Tribunal. Upper Tribunal Judge Bruce disagreed, criticising the failure of the lower court to explore the incidents described in any detail.

In terms of the police attack, she found that a particularly shocking one-off incident – such as a physical attack by police officers – could amount to persecution, while more “minor” incidents could become serious enough to constitute a violation of human rights by their repetition and accumulation.

Finally, the judge expressed concern over the lower court’s failure to consider the last two (HJ Iran) questions. It had been assumed Mx M would be “out” based on their previous life in El Salvador but the Upper Tribunal considered otherwise. Based on the claimant’s evidence, the Upper Tribunal considered they would be compelled to modify their behaviour, in order live “discreetly” out of fear. The First-tier Tribunal was also criticised for its failure to consider “whether the Appellant’s political work – ie his [sic] active involvement in numerous LGBTI events and organisations – fell at the core or the margin of their right to identify as gay/trans/non-binary”.

A non-binary breakthrough?

So are there any broader implications to this case? Like any asylum claim, Mx M’s case is to some extent fact-specific, based on their own particular background in El Salvador.  But the decision is significant. It seems to be the first time the position of non-binary people has been considered in express detail in an Upper Tribunal decision. 

This may seem surprising in the context of the growing understanding and acceptance of gender fluidity in recent years, but it could be a question of the courts playing catch-up with society as a whole. It’s perhaps of note that a landmark employment tribunal decision on the application of the Equality Act 2010 to non-binary people was heard just weeks before the present case.

Perhaps more surprising is the fact the Upper Tribunal actually needed to spell out the application of HJ (Iran) to asylum claims involving non-binary people — evidence that some judges are catching up far more slowly than others.

As such, this determination is an important one. It is a timely reminder to all decision-makers of the principles underlying gender-based claims, while the headnote leaves no room for any lingering doubts: “The principles in HJ (Iran) are concerned with the protection of innate characteristics. As such they are to be applied in claims relating to gender identity”.

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