The recently published UK Lesbian & Gay Immigration Group report Still Falling Short examines the Home Office’s decision-making in  asylum applications from LGBTQI+ people.

The report is a qualitative study of mainly lesbian, gay and bisexual cases. It analyses Home Office interview records and reasons for refusal letters to assess whether these are compliant with the published Asylum Policy instructions on Sexual orientation in asylum claims of 2015 and 2016.

It concludes that, despite some improvements in the interview process, the standard of proof applied by the decision-makers is too high and often the legal test on “discretion” set in the Supreme Court case of HJ Iran is misapplied.

Still Falling Short is good reading for immigration practitioners dealing with LGBTQI+ asylum applications because it explores specific features that characterise such cases, which we will try to summarise in this post.

Taking instructions: self-identification and narrative

When taking instructions from a new client applying for recognition as a refugee on the basis of persecution over their sexual orientation or gender identity it is essential that, as the legal representative, you understand the applicant well. Be clear on how they identify themselves, to avoid assumptions and labelling. Using the correct pronouns and terminology when addressing your client and in the body of their asylum statement is very important in all LGBTQI+ cases, and even more so if your client is trans or does not identify with any specific gender.

If you are not clear on this, you cannot expect the Home Office to get it right, and confusion on a basic issue such as the client’s gender identity or sexuality may lead to misunderstandings and adverse credibility findings.

Secondly, beware of stereotypes. Different applicants may have very different accounts. The Home Office often expects a specific narrative, entailing for example a difficult process of self-realisation or a deep intimate conflict between the applicant’s sexual orientation or gender identity (SOGI) and their religion.

When this expectation is not fulfilled, the decision-maker may refuse the claim on the basis that the account is vague or lacks credibility.

In reality some people may not see any conflict between their SOGI and their religion.

Others may not have experienced a particularly difficult soul-searching journey before coming to terms with their sexual orientation or gender identity.

The level of education of the person giving the account and their personality also impacts on the quality and quantity of the information provided. Some may find it very difficult to put into words how they came to realise they were attracted to someone of the same gender, or why they liked a particular boy or girl.

The language you use is also important: words such as “like”, “boyfriend” or “relationship” may have a different meaning in different cultural contexts. It is therefore crucial to fully explain your questions when taking instructions for the statement.

The statement and supporting evidence

So, in LGBTQI+ asylum cases there is no ‘one-size-fits-all’ narrative. Not everyone experiences the same feelings, and not everyone discovers their sexuality or gender identity in the same way.

This is why a carefully drafted statement helps immensely in setting the scene.

It should be easier for applicants to open up to their representatives than in the stressful context of an asylum interview, and the process of giving detailed instructions is an invaluable training exercise to prepare for the interview itself.

This is also the time when you will discuss if your client has any corroborative evidence.

If the applicant has been attacked in their home country, it is obvious to ask if they have been hospitalised and have any proof of this; if they have a partner you may want to get a statement from them. But other than that, how do you prove that someone is gay, lesbian or bisexual?

This is not an easy task, especially if your client is not and has never been in a relationship. Even more so if they were forced to enter into a heterosexual marriage or have children.

Thankfully, it is clear even to the Home Office that explicit evidence or narrative are no longer required.

The latest Home Office policy on sexual orientation clarifies that:

The interview is the primary opportunity for claimants to present their case for fearing persecution on the basis of their sexual orientation. There may however be occasions during interview when they voluntarily provide narratives regarding the development of their sexual orientation which may focus on issues of sexual activity, or physical or sexual attraction.

The claimant must be allowed to make such disclosures as they wish, however caseworkers must not pursue any such narratives with further lines of questioning which may invite sexually explicit disclosure. Home Office policy is clear, questions about claimants’ sexual practices must not be asked and there are no circumstances in which it will be appropriate for the interviewer to instigate questions of a sexually explicit nature.

Examples of useful evidence could be statements from friends who are aware of your client’s SOGI, dating profiles and printouts from social media, photos or confirmation of attending “LGBT places”. However, the main piece of evidence remains your client’s own story.

The content of the statement will vary depending on the circumstances, but it should cover how your client came to identify as LGB and attempt to describe the first time your client remembers being attracted to or having an experience with someone of their own gender. Any relationship and how it was to live in a country where they could not express themselves freely are topics to be discussed.

In trans cases – including people who are gender non-binary or gender fluid – it is crucial to explain your client’s gender identity and how they identify themselves in the UK and in their country of origin if this identity was kept hidden.

The Home Office decision

When taking a decision on an LGBTQI+ claim, the Home Office should abide by the principles set out in the relevant asylum policy instructions.

Were these always applied, it would probably result in higher-quality decisions. The problem, as identified in the Still Falling Short report, is that Home Office caseworkers don’t always follow their own guidance or seem aware of what do to.

Therefore, when writing representations it is worth pointing out how the decision-maker is supposed to deal with LGBTQI+ cases, in accordance with the asylum policy instructions.

The policy on Gender identity is being revisited, and it appears that suggestions from stakeholders, including UKLGIG, are being taken on board. The consultation process is almost over and the guidance should be undergoing an internal clearance process soon.

The Home Office policy-makers who met with UKLGIG seemed very interested in improving the document and getting it right. It remains to be seen whether the published version reflects these good intentions, and whether the policy will be correctly applied.

An update on the Sexual orientation guidance is also due but no timescale has been confirmed for its publication.

Still Falling Short highlights that the Home Office still applies a standard of proof that may be too high. As shown in some refusal letters analysed in the report, sometimes stereotypical views of LGBTQI+ people are applied, particularly in the assessment of credibility.

Late disclosure of one’s own sexuality should not be seen in and of itself as an indicator of lack of credibility. Many people don’t know that they can apply for asylum on the basis of their sexual orientation or gender identity, believing that claims are based on political activities. It can also be very difficult for someone who had to hide their true self for years in their home country, to come out in front of perfect strangers.

It is also baffling to realise that, having gone through the painful process of revealing a truth that they kept hidden from society, applicants are disbelieved and refused because their sexual orientation is disputed.

Credibility is often crucial in asylum applications, and it is often disputed by the Home Office. When objective evidence is clear in stating that LGBTQI+ people are persecuted in a specific country (such as Uganda), the Home Office is more likely to dispute the applicant’s sexual identity.

In other cases the Home Office may accept the truthfulness of the account, but argue internal relocation or state that there would be no risk on return (for example in India).

HJ Iran and being “discrete”

A common reason why LGBTQI+ claims are refused and appeals dismissed is the misapplication of the Supreme Court case of HJ Iran [2010] UKSC 31.

The UK Lesbian & Gay Immigration Group recently published a specific paper on the application of HJ Iran to asylum claims based on sexual orientation.

In a nutshell, an applicant cannot be forced to return to their country and live “discreetly” to avoid persecution.

In cases where the applicant’s account is accepted and the country of origin information confirms that LGBTQI+ people are at risk, the Home Office (or appeal judge) can only refuse a claim if they are persuaded that the person would live discreetly or lie about their sexual orientation solely for their own reasons, such as not to disappoint their family.

However, if at least one reason why someone would live discreetly or hide their sexual orientation is because they fear persecution, this is enough to establish an asylum claim.

Unfortunately, often LGBTQI+ asylum seekers do not spell out that fear of persecution would compel them to hide their sexual orientation, perhaps because it is so obvious to them that it does not occur to mention it. A lack of clarity on this point may be fatal to the claim, and therefore it is important to ask the right questions, and ensure the asylum statement fully explains how someone would behave if they returned to their country of origin — and why.

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