Damning report says practically all UK LGBT asylum claims are being refused; Border Agency "cruel and discriminatory"

Attack on a Jamaican transsexual. The UK Home Office tells those fleeing this for UK asylum to return, 'relocate' and 'be discrete'

By Paul Canning

According to the UK's lesbian and gay asylum and immigration charity the UK Lesbian and Gay Immigration Group (UKLGIG) the British government is refusing 98-99% of claims made by LGBT compared to 73% for claims made on other grounds.

The astonishing figure is the result of work revealed in a new report 'Failing the grade' released by UKLGIG 8 April. It is based on a review of 50 Home Office Reason for Refusal letters (refusal letters) issued from 2005 to 2009 to claimants from 19 different countries who claimed asylum on the basis of their sexual identity.  The report does not purport to be a definitive piece of research but rather a study that indicates trends emerging from the Home Office’s consideration of LGBT asylum claims.

Asylum applicants reviewed were from Belarus, Cameroon, Dominica, Congo, Gambia, Ghana, Iran, Jamaica, Kenya, Libya, Morocco, Nigeria, Pakistan, Sri Lanka, Syria, Tanzania, Uganda, Yemen and Zimbabwe.

The UK-based leader of Iraqi LGBT, Ali Hili, told LGBT Asylum News that every Iraqi gay asylum seeker in the UK his group was aware of had been first refused asylum, including cases in the past two years (that is, since the situation for gays in Iraq, which includes militias systematically hunting them down and killing them, became widely publicised).

In 2008 the Scottish activist Robert McDowell asked the Home Office in a Freedom Of Information request how many LGBT asylum claims had been made the previous year. He was told that information wasn't collected and it would be too expensive to retrieve.

The definitive numbers are not known but evidence from overseas shows that LGBT asylum claims form a tiny component of overall numbers - even in countries understood to have 'liberal' policies.

The main US LGBT asylum group Immigration Equality dealt with 80 cases in 2008. The Dutch Liberal MP Boris van der Ham, who led parliamentary efforts to secure asylum for Mehdi Kazemi, asked authorities for details in 2008. They said six LGBT asylum seekers are expected in 2009 and 38 to 40 in total since 2006. According to the Asylum Documentation Program of the International Gay and Lesbian Human Rights Commission, 62 lesbians have been allowed to stay in the United States between 1994 and 2007 (out of 435 inquiries), and 643 gay men (out of 4,134 inquiries)

Most, if not all, of the claims reviewed would have eventually received asylum. But only at the end of a long and - this report suggests - entirely unnecessary process costly both to the British taxpayer but also to the asylum seeker themselves, unable to contribute through taxes and other means to Britain and forced into a lengthy wait whilst living below the poverty line and often expensive detention.

Why are almost all cases being refused?

UKLGIG patron Angela Mason CBE says in her forward:

"Decisions on lesbians and gay men seeking refugee status in this country are being made by Home Office case owners who lack essential training and access to appropriate guidance on dealing with such claims."

Apart from the higher refusal rates for lesbians and gay men "it is also evident from the nature of the individual decision making", she says.

"It seems clear that case owners making decisions about lesbian and gay asylum claims do not have training on the particular issues arising from persecution based on sexual orientation or identity. They are also relying on out of date information on countries of origin and too often ignoring the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity."

"The result is that lesbian and gay asylum seekers who are already experiencing persecution may also face discrimination in our own country. This is something that should not and need not happen."

The report looks at why the initial LGBT refusal rate is so high by UK Border Agency (UKBA) staff and identifies six reasons.

• A lack of understanding of what sexual identity actually is which leads to decisions requiring asylum seekers to conceal their sexual identity and live a clandestine life in order to avoid persecution.
• A false assumption that internal relocation is a viable option for lesbians and gay men in countries where homophobia is prevalent.
• Failing to appreciate the ways in which multiple discrimination and persecution impact on lesbian asylum seekers and inaccurately equating the lack of Home Ofice country of origin information about human rights abuses of lesbians with an absence of such persecution.
• UKBA staff believing that because there's a lack of documented evidence on the application of sodomy laws means there's no persecution.
• Refusing to believe someone is lesbian or gay because they don't fit their misconceptions about sexual identity.
• Assuming that LGBT asylum seekers must be lying because they talk about having engaged in so-called “risky” sexual or nonconforming social behaviours that then lead to their persecution.
• Problems with their Operational Guidance Notes not matching information on LGBT persecution contained in Home Office Country of Origin Reports.

Half were simply not believed to be lesbian or gay and the report says that UKBA staff are not sensitised to recognise the self-loathing, shame or internalized homophobia that claimants coming from countries in the Global South often have: "questions about their sexuality [are] very difficult, especially when speaking to an authority figure." In three cases the fact that claimants were previously married was taken to mean they must be lying that they are gay or lesbian - one involved a lesbian forced into marriage in The Gambia, another a Jamaican gay man who had married as 'cover'.

Border Agency staff often have, the report says: "stereotypical concepts of what it means to be lesbian or gay, such as that all gay men are flamboyant and all lesbians are masculine in appearance."
The 'discretion test'

In over half the cases asylum seekers were told that they could return to a hidden life in their country of origin, including to Iran and Jamaica with appalling track records of persecuting lesbians and gay men, and even where people provided clear evidence of having suffered severe harm due to their sexual identity.

The report says:

"These decisions ignored the fact that lesbians and gay men often live secret lives due to societal repression and fear of being found out, not out of any voluntary desire to hide their sexual identity."

In a groundbreaking guidance note issued last year the United Nations High Commission for Refugees (UNHCR) dismissed the 'discretion test' and said "a person cannot be expected or required by the state to change or conceal his or her [sexual] identity in order to avoid persecution."

In an astonishing note from the Home Secretary to a refused Iranian which is quoted in the report, he claims that "[w]hen an individual’s right to pursue his sexuality is placed within the context of a civilised society, the need for discretion in relation to sexual practices is the accepted norm” — a focus entirely on sex and ignoring the reality that being lesbian or gay in the home countries of asylum seekers is in itself not conforming to the “accepted norm”.

Professor of Asylum Law at the University of Venice, Bruce Leimsidor, told LGBT Asylum News:

"Not only is the demand for "discretion" contrary to human rights, it is also impossible to demand of, for example, an Iraqi gay. Because of the family and societal structure, staying "in the closet" exacts a much higher price in Iraq that it does in the West for the following reasons:"

"1) An Iraqi woman is expected to marry, and if she doesn't, her family marries her off by force. How does an Iraqi Lesbian cope with this? Either she submits, and is forced to have undesired sex with a man - which may even be repulsive to her - or she "comes out" either directly, or indirectly, by running away.  She then is no longer discrete and risks an honour killing murder by her family."

"2) Even Iraqi men are expected to marry, although the pressure may not be as great as with women. How does he avoid this pressure without coming out, i.e,, being indiscrete?  Young adults generally live at home until they marry. How can an Iraqi gay handle this without his family's eventually finding out or without totally repressing his sexuality?"

"3) The oppressive situation for LGBT in Iraq is so complete that many react by being hostilely flamboyant. As reported in the NY Times article, some adopt a "Well, they're going to kill me anyway" attitude. Psychologically, "Butching it up" isn't an option for them."

The Home Secretary's refusal note to a gay Iranian says that although the their death penalty for gays “may cause you to be secretive in the conduct of  your homosexual relationships" this didn't concern the UK’s obligations under the article of the European Convention on Human Rights which covers a right to respect for one's "private and family life, his home and his correspondence."

LGBT asylum advocates hope that in a major test of the 'discretion test' coming up at the Supreme Court in May such language on 'discretion' will become a thing of the past.

Catch-22

If a person does come out they can be refused because it won't be believed that anyone in their right mind could possibly engage in such 'risky behaviour'. One case received the following rejection:

“It is not considered credible that you would then invite known homosexuals and “camp” men to your house and so readily place yourself in danger from reprisals or any other form of abuse.”

“It is not accepted that you were observed kissing a[nother] pupil nor that you would risk doing so at school where this could be observed, as you were fully aware that homosexuality is not accepted in Uganda and the consequences.” 

“You assert that although you were too scared to tell anybody about your sexual orientation you dressed like a man…if as you claim you have lived in fear for an approximate period of 20 years it is not believed that you would openly have dressed in men’s clothes thereby leaving yourself and your son open to verbal and physical abuse.”

Just move

The report says that two thirds of the cases were refused because UKBA staff said that claimants could 'internally relocate'. It says that this is especially difficult for lesbians and gay men because, for example in the small island nation of Jamaica there is a culture of virulent homophobia which exists everywhere, with violence committed frequently (and us well documented) against lesbians and gay men.

Nine out of ten of the Jamaican cases reviewed were told to go home and relocate. Yet all the cases were claiming asylum precisely because they were 'caught' with a partner or were already perceived to be lesbian or gay. This, says the report "is an impossible no-win situation."

Jamaican cases also face misuse of the actual Home Office signed-off evidence of persecution in particular countries. There have been numerous reports on the problem of the country guidance made available to decision makers. Here's a line from one refusal letter:

“There is no evidence to corroborate that lesbians generally face serious ill-treatment in Jamaica.”

'No-one is going to kill you'

The report say that documented claims regarding threats of so-called 'honour' killing by family members were almost always dismissed. In one case involving a Pakistani lesbian fleeing her father who was threatening to kill her the report says:

"The case owner speculated that since her father had “never travelled to other parts of Pakistan” previously, he would not travel to find and kill her if she relocated to another area. [UKBA] case owners must appreciate the power of the culture-based concept of family honour, the gravity of these threats and the reality that families can and will find the ‘offending’ person within the home country."

"Finding that claimants can internally relocate as long as they stay in hiding is cruel and discriminatory."

It should be noted that there is no real system for reporting the fate of lesbians and gays who might be returned to such potential fates. No one is studying this and there is no will or funding to find out and there is confusion about which agency (the Foreign Office?) might be responsible.

Lesbian = ignored, doubled-down discrimination

The specific gender-based discrimination experienced by lesbians is completely ignored in the cases reviewed:

"Relocation, for example, is extremely difficult for unmarried or divorced women in general, because they are viewed with suspicion and are at a distinct social and economic disadvantage that leaves them highly vulnerable to abuse and harm. The plight of lesbians is even worse since they are subject to an additional threat of harm based on their sexual identity."

Four of the lesbian cases involved forced marriage, eight domestic violence and/or rape and so called 'honour' crimes in another four: all were refused asylum. The report underlines previous findings that the UK system fails to appreciate gender-based persecution.

Because many countries from which UK LGBT asylum seekers are fleeing have sodomy laws as a legacy of colonisation - but not laws against lesbians - this was cited as a refusal for believing that lesbians are persecuted in countries like Jamaica.

But they don't enforce the [Empire's] law?

In gay male cases the supposed lack of enforcement of sodomy laws (often inherited from the British Empire) was cited as reason for refusal - rather than their continued existence being a clear indication of a lack of state protection of gays.

"Such laws show a general climate of homophobia and often lead to unlawful detentions, extortion and violence by police. Lesbians and gay men suffer grave harm as a result of the mere existence of these laws, which indicate institutionalised homophobia. Additionally, lesbians and gay men are inhibited from reporting abuse to the authorities because they fear arrest or mistreatment by these authorities."

Change. Needed. Now.

The report outlines a series of needed changes. For example:

"Case owners need to be especially sensitive to the lack of objective evidence of a person’s sexuality and focus on narratives that help flesh out a person’s self-knowledge of their sexual identity. It is especially important that case owners receive specific training in this area since credibility assessment is such a critical part of the refugee determination process."

"Denying who they are and living in constant fear of detection, in order to be free from significant harm [does constituent] a 'reasonable fear of persecution' and [means that people should] be granted asylum."

"The inordinately high rate of initial refusal of these claims is based on a lack of understanding of the issues involved. Fortunately, education can address this deficiency. UKLGIG hopes that this report, along with Home Office adoption of its recommendations, will vastly improve the initial decision making process in sexual identity asylum claims."

Failing the Grade