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View on Migration: Gay asylum seekers face unfair system
  • View on Migration: Gay asylum seekers face unfair system

Copyright: Pat Brown / Panos

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  • The UK Home Office is increasingly dismissing LGBT asylum applications

  • But 'proving' sexuality is problematic, as is assessing home country risk

  • The process requires a more open-minded approach, says UK barrister

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The UK government’s treatment of LGBT asylum seekers hit the headlines this month with news of the imminent deportation of Orashia Edwards, a bisexual Jamaican. [1] Edwards’s asylum claim was dismissed on the grounds he was being “dishonest” about his sexual orientation. [2] He now looks likely to return to Jamaica, where same-sex sexual activity is an imprisonable offence — the case in around 70 countries worldwide.

The UK Home Office is increasingly dismissing asylum applications based on the grounds of sexual orientation, according to Andrew Eaton, an asylum barrister at Garden Court Chambers in London. He dates this back to a specific change in UK law.

Eaton tells me that up until 2010 the UK would generally accept what asylum seekers said about their sexual orientation but refuse to grant asylum if behaving in a “discreet manner” in their country of origin would avoid persecution. This was deemed unacceptable in a 2010 case at the Supreme Court, however, as it breached universal refugee law. [3]

UK asylum law then changed to cover those persecuted on the grounds of sexual orientation, which led the Home Office to change its approach, focusing more on inconsistencies in sexual orientation testimony and evidence of relationships to reject claims.

“Proving that you’re gay is an intrinsically difficult thing to do in an interview.”

Andrew Eaton, Garden Court Chambers in London


A Home Office interview is the initial stage of any claim. This falls roughly into two parts: assessing evidence of sexuality, followed by evidence of risk. These interviews tend to be “conducted in a fairly unsympathetic manner”, says Eaton. Then there’s the “hugely thorny issue” of testimonies being mistranslated, making them appear inconsistent and thus more easily discredited.

“Proving that you’re gay is an intrinsically difficult thing to do in an interview,” says Eaton. In contrast, political asylum seekers might be able to provide evidence of party membership, for instance.

The Home Office asks “matter-of-fact details about your relationships, when they began and ended, rather than specific sexual practices”, says Eaton. But this is difficult for somebody coming from a country that persecutes such openness.

The second part of asylum evidence involves assessing the risk factors in the country of origin. For this Home Office interviewers will only look at country of origin reports — which include detailed digests of human rights reports — but ignore other lines of evidence and nuances.
For example, Eaton tells me there is UK case law on Jamaica outlining how a person’s ability to avoid persecution often depends on their wealth and class. And in South Africa, progressive legislation on sexual freedom exists alongside widespread homophobia and discriminatory practices.

By disregarding such evidence, Home Office investigators might turn a blind eye to the disconnect between legislation and reality on the ground, according to Eaton.

He says that making this process fairer requires “a more open-minded approach...in terms of the sort of evidence they look at”. Concrete action could include allowing claimants’ partners or ex-partners to be cross-examined in tribunals, something which now “absolutely never happens”.

Imogen Mathers is reporter/producer at SciDev.Net. @imogenmathers

References

[1] Owen Duffy Bisexual asylum seeker facing imminent deportation from UK to Jamaica (Guardian, 5 May 2015).
[2] Orashia Edwards’s UK asylum claim rejected by judge (BBC, 1 July 2014)
[3] HJ (Iran) vs Secretary of State for the Home Department (British and Irish Legal Information Institute, 7 July 2010)
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