By: S. Chelvan*
In September 2011, an Immigration Judge addressed this question to the representative of a lesbian appellant from Pakistan, highlighting her disbelief of the appellant, despite the appeal being ready to proceed.1 It is astounding that there are still those who need educating in the simple facts that the differences between straight, as compared to lesbian, gay and bisexual appellants, are in fact found in the experiences of all human beings. This is particularly shocking after the training provided to Immigration Judges by STONEWALL earlier this year following HJ (Iran) and HT (Cameroon),2 which repeated the mantra to the judges, “It is not what we do, but who we are”. Would anyone ever ask “How does a teenager come out as straight at 13?”. In the hetero-normative society we live in, there are still those who assume that every child is programmed as straight as this is ‘normal’, ignoring the core development of a sexual and gender identity, straight, bisexual, gay, lesbian, trans or intersex, based on identity (including desire and love), and not merely conduct, in all human beings.
The rejection of a straight life
Following guidance and training since the UK Supreme Court’s July 2010 landmark ruling in HJ (Iran) and HT (Cameroon)3 there are decision-makers who engage with detailed analysis of such claims, and who would reject as highly unacceptable and legally flawed decisions which are based on personal ignorance, or in some instances blatant homophobic bigotry. For example, in July 2011, the Upper Tribunal reversed the dismissed appeal of a gay man from Uzbekistan, finding the adverse credibility findings as perverse. The deeply flawed approach of the Immigration Judge in the initial appeal included the question “When did you first engage in buggery with your boyfriend?” clarifying that the reference to ‘buggery’ was perfectly acceptable.4 The invisibility of lesbians, bisexual women, trans and intersex women, has until recently reflected the blatant ignorance of asylum decision-makers. The recent Upper Tribunal country guidance case on Jamaican lesbians,5 shows a much welcomed engagement with the core issues of difference, stigma, shame and harm (‘DSSH’)6 which are at the core of the narrative of the majority of LGBTI claims. SW importantly identifies risk categories to those who are, or those who are perceived as lesbian in Jamaica, where an individual does not live a ‘heterosexual narrative’ (i.e. have men ‘calling’ or have a boyfriend/husband and/or have children). Six years since the Tribunal concluded that the finding “there is some force that perception is key” was non-binding,7 the Tribunal has finally applied this to the core trigger of “difference”.
Correcting a historical wrong
This article explores how the development of case law in the past twelve years shows a significant attempt by the UK to identify what is at the core of asylum claims made by lesbians.8 There is a need to recognise that it is the failure to abide by the “heterosexual narrative” which creates the “difference” with heterosexual individuals. This difference is linked to stigma and results in asylum seekers’ shame and a continuing fear of harm in their home country. This understanding is at the heart of identifying the protection needs of women in sexual and gender identity asylum claims. It was the case of two women who feared domestic violence at the hands of their husbands in Pakistan9 in 1999, which established that “homosexuals” could be considered a particular social group in addition to women. Lord Steyn recognised an international consensus based on prosecution, or the potential prosecution, of predominantly male same-sex conduct. This landmark judgment reflects that the Refugee Convention is a living instrument and should be interpreted as such. Ironically and shamefully, this corrected the historical wrong which hid the fact that ‘homosexuals’ were also part of the persecuted in Nazi Germany: in ignoring such facts, the framers of the Convention created a protection gap in the UK of nearly fifty years.10
This fixation with criminalisation of male same-sex conduct was carried through by the Court of Appeal.11 Lord Justice Schiemann importantly recognised that criminalisation of consensual adult homosexual conduct in private “is not regarded by the international community at large as acceptable”. In 2011, 76 countries criminalise same-sex conduct, which includes 5 nations who prescribe the death penalty,12 and 42 that specifically prohibit lesbian conduct in their legislation.13Nevertheless, it is remarkable that from 1999 to 2005,14 there were no reported cases on sexual or gender identity by women asylum seekers.15
NR (Jamaica) - a case study in ignorance and unfairness
The case of NR highlights successive procedural and institutional ignorance, prior to her eventual grant of refugee status at appeal.16 Her past narrative of being a victim of gang rape in Jamaica at thirteen was not accepted as credible. Her criminal conviction in the UK as a young woman for drug supply was accompanied by a life of vice and prostitution but she had no sexual interaction directly with men. Her narrative was that following her rape, she had no sexual interest in men, and found solace from the age of sixteen in sexual and loving relationships with women, which resulted in a developing self-identified lesbian identity. Despite accepting that she did not constitute a continued risk to the public, the Tribunal at her appeal did not accept she was a lesbian because of a reference in a Pre-sentence report to her having a ‘boyfriend’. The Tribunal considered she was not a lesbian even though the evidence included letters from NR’s girlfriend, which graphically described her carnal desires and emotional feelings towards her. Importantly, the Presenting Officer alluded to an assertion that NR was ‘just going through a phase’. NR was granted an order for reconsideration because the Tribunal’s reasoning on sexual identity was perverse. On reconsideration, the Upper Tribunal could not come to an agreement despite the Presenting Officer accepting that NR was a lesbian on the basis of the graphic love letters. NR had then to prepare for a third fact-finding Tribunal which did not doubt her girlfriend’s love for her, but constructed her profile as someone who had manipulated her whilst in prison where NR had ‘no choice’ but celibacy and her same-sex conduct was but a continuation of her teenage experimentation. Crucially the Tribunal, having rejected her claim to be a lesbian, did not make a finding on what risk she would face as a woman engaging in same-sex relationships.
In July 2009, NR’s appeal hearing before the Court of Appeal resulted in national media attention.17 Focussing on her criminal profile, media reports were outraged at NR’s affront to UK’s asylum procedures as a convicted criminal, and argued that the appellate process was a waste of public funding. The Secretary of State submitted that NR was using lesbianism in an attempt to stay in the UK. In the judgment, Goldring LJ pointed out the obvious:
“Even taking into account that the Tribunal saw and heard the appellant, it seems to me its analysis is not without difficulty. A great deal of weight appears to have been placed on what was said very shortly in two reports. The appellant has now been in a series of exclusively lesbian sexual relationships over some 4 years. That is on its face cogent evidence that she is a lesbian, or predominantly a lesbian, by sexual identity. What might have begun as sexual experimentation with lesbianism could have ended with it being her sole or predominant sexual orientation. That does not appear to have been adequately considered or, at least, explained by the Tribunal. It is of course her sexual orientation at the time of the hearing which is important.”18The fourth fact-finding Upper Tribunal held unanimously that even with the historical reference in the Pre-sentence report to a boyfriend, in 2010 NR presented as ‘exclusively lesbian’. The Tribunal thus concluded that she would be identified as a lesbian and be at risk on return because of her inability to portray a profile conforming to a heterosexual narrative (i.e. by having a boyfriend or children).
Another decision by the Court of Appeal has established that even where sexual identity is not challenged, the appellant will still have to ‘prove’ that she is a lesbian.19
Discrimination and not persecution
In 2009, the Tribunal could only identify in the country background evidence one incident of harm to a lesbian in Albania.20 The general conclusion was that discretion of Albanian lesbians was due to family, social pressure, or discrimination and not due to a risk of persecution. This determination highlights the importance of accurate country background evidence. In particular in the case of lesbians, where there is an absence of evidence relating to risk because of their general invisibility in a patriarchal society. This was also detrimental in the appeal of Amare,21 where the 2005 Court of Appeal held that it was discrimination, and not persecution, which was at the core of the narrative of a lesbian from Ethiopia.
In AK (Iran) 22 the 2008 Court of Appeal remitted for re-hearing country evidence on risk to a trans woman from Iran, correcting the mistake in Rahimi where it was held that risks to trans women in Iran did not exist due to the availability of surgical provision.23 However, the Court of Appeal continued to incorrectly use a male-pronoun to a self-identified trans woman, highlighting the urgent need for a reported guidance case on gender identity asylum claims.24 Whilst UKBA is to be congratulated on the recent Asylum Instruction on Gender identity issues in the asylum claim, there still needs to be clear unambiguous guidance from the Tribunal or a higher court.25
SW (Jamaica) – at last a breakthrough!
In SW (Jamaica) in June 2011, the Upper Tribunal finally engaged with the simple fact arising out of sexual or gender identity asylum claims: it is the rejection and/or inability to conform to the heterosexual narrative which identifies difference with the hetero-normative norm and which leads to the real risk of curative rape and even murder.26 The case set out that women from Jamaica are expected to be sexually active at a young age, and would be expected to have children. If women are not identified as living with a man, they would be expected to be receptive to men ‘calling’, seeking sexual relations with them. This is what is termed the ‘heterosexual narrative’ for women in Jamaica.
The Secretary of State’s position, having conceded general risks to lesbians who are ‘open’, was that SW would not be able to find any ‘open’ lesbians in Jamaica to have a relationship with, so she would be discrete, and this would be ‘reasonably tolerable’.27 SW presented as an ‘out’ lesbian, who had been on Gay Pride marches, dated the head of UK Black Pride, was ‘open’ about her relationship with her girlfriend. She is educated and articulate. The Tribunal by its findings in effect accepted that SW would therefore be within the exclusive group of ‘gay martyrs’.28 Consequently, she would not be discrete, and would face the conceded real risk of curative rape and even murder. There was therefore no need to examine whether she would be voluntary discrete on return to Jamaica.
The Upper Tribunal importantly recognised that women not living a heterosexual narrative could be perceived as lesbian and therefore be at risk. This then addresses the lacuna in Lord Rodger’s guidelines as even those who are voluntary discrete for family or social reasons alone, who would not be refugees pursuant to HJ/HT are arguably still refugees due to their inability (be it voluntarily or not) to live a straight life. It is the rejection of hetero-normativity which leads to identification and consequent risk pursuant to the ‘DSSH’ model described earlier.
What has now occurred is a shift of the focus to ‘proving’ sexual or gender identity. As Asylum Aid’s 2011 report highlighted, there exists a “high threshold to meet for applicants to convince case owners of their sexual identity, even though the law only requires that to be established to the level of reasonable degree of likelihood”.29 This is reflected in one of the recommendations contained in the September 2011 Fleeing Homophobia report, which elevates ‘self-identification’ as the single evidential requirement.30
Returning to the rhetorical question posed by the Immigration Judge, “how does a lesbian come out at 13?” Any answer can only be given following education, experience and empowerment for without such core triggers women seeking asylum based on sexual or gender identity will continue to be invisible, resulting in ignorance and fear.
* Barrister of the Inner Temple, No5 Chambers and part-time PhD Candidate in Law (King’s College London). E-mail: firstname.lastname@example.org. The author was the UK Country Expert and member of the Advisory Board to the Fleeing Homophobia project (COC Netherlands and VU University (Amsterdam) (2010 to 2011) ). He has also held the post of Trustee of the UK Lesbian and Gay Immigration Group since 2005. Chelvan trains, lectures and publishes on LGBTI asylum law both nationally and internationally.
1 Anecdotal evidence of lay party to the appeal conveyed to the author on the day of the adjourned hearing, confirmed by solicitor for the appellant who is aware of use of the account for this article.
2 HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31;  1 AC 596. For analysis of judgment see S. Chelvan, “Put Your Hands Up (If You Feel Love)”, Journal of Immigration, Asylum and Nationality Law 25(1), 56-66. See also James Hathaway and Jason Pobjoy, “Queer cases make bad law” (forthcoming, January 2012, New York University Journal of Law and Politics 44(2)).
3 See Women’s Asylum News, Issue 93, July 2010, pp. 5-7, http://www.asylumaid.org.uk/data/files/publications/138/WAN_July_2010.pdf.
4 Unreported determination of the Upper Tribunal (IAC) (hearing on 12th July 2011).
5 SW (lesbians – HJ and HT applied) Jamaica CG  UKUT 000251 (IAC), 24th of June 2011.
6 The author has personally constructed this learning tool for both litigation and training purposes used in various arenas including UKLGIG asylum support meetings, an ELENA Course on Vulnerable People (April 2011), UNHCR NGO Meeting (Geneva, June 2011),UNHCR/ECRE/IARJ informal meeting of experts (September 2011, Bled, Slovenia, training slides now used internally by UNHCR) and before the European Parliament (Brussels, 20th October 2011, Civil Liberties, Justice and Home Affairs Committee). It is the self-identification of difference with the consequent recognition of stigma, which attaches shame and fears harm which are the core four triggers in the majority (but not all) LGBTI asylum claims.
7 DW (Homosexual Men – Persecution – Sufficiency of Protection) Jamaica CG  UKAIT 00168, §. 71.
8 Due to the word limit to this article the author has to focus on lesbian claims. Forthcoming paper on the application of the rejection of hetero-normativity in claims from gay and bisexual men will be presented by the author on the 18th of January 2012 at the University of Middlesex conference The Marginalised Man. Paper entitled: “I want to wear pink!” – an analysis of the rejection of hetero-normativity in the narratives of gay and bisexual male asylum seekers in the United Kingdom.”
9 Islam v Secretary of State for the Home Department and R v IAT ex parte Shah  2 A.C. 629;  2 WLR 1015
10 The first country to recognize sexual orientation as a persecution ground was the Netherlands, in Afdeling rechtspraak van de Raad van State (Judicial Division of the Council of State) 13 August 1981, Rechtspraak Vreemdelingenrecht 1981, 5, Gids Vreemdelingenrecht (oud) D12-51 (Source: Fleeing Homophobia: Asylum Claims related to sexual orientation and gender identity Sabine Jansen and Thomas Spijkerboer (September 2011, fn. 36, p. 19) http://www.rechten.vu.nl/nl/onderzoek/conferenties-en-projecten/conference-fleeing-homophobia/index.asp (last accessed 16th October 2011).
11 Jain v Secretary of State for the Home Department  Imm. A.R. 76.
12 Yemen, Saudi Arabia, Sudan, Mauritania and Parts of Somalia and the Northern states in Nigeria also prescribe the death penalty. See State-sponsored homophobia: A world survey of laws criminalising same-sex sexual acts between consenting adults (Bruce-Jones and Itaborahy, ILGA, May 2011) http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf (last accessed 16th October 2011). The newly independent state of Southern Sudan is expected to introduce the death penalty in the imminent future. Uganda, has recently decided to drop the death penalty from a reintroduced Anti-Homosexuality Bill.
13 The arrest and subsequent persecution of lesbians on the basis of legislation which proscribes (male) same-sex conduct has been recognised by the UK Administrative Court (see R (on the application of SB (Uganda) v Secretary of State for the Home Department  EWHC 338 (Admin) (February 2010)).
14 LK (AA applied) Zimbabwe  UKAIT 00159 (no material error in law in Adjudicator’s finding that lesbian appellant would be at real risk on return), compare and contrast with earlier Immigration Appeal Tribunal appeal constantly relied on by the SSHD in refusal letters and at appeals - JD (homosexuals – MDC supporter – internal relocation) Zimbabwe  UKIAT 00259. In 2011 the Upper Tribunal is expected to hear a Country Guidance case in North Shields on the real risk to gay men and lesbians from Zimbabwe.
15 The reference relates to reported case law.
16 NR (Jamaica) v Secretary of State for the Home Department  EWCA Civ 856;  INLR 169.
17 See Lesbian Jamaican drug dealer fights deportation, The Daily Telegraph, 15th July 2009, http://www.telegraph.co.uk/news/newstopics/howaboutthat/5831764/Lesbian-Jamaican-drug-dealer-fightsdeportation.html (last accessed 16th October 2011), You can’t deport me, I’m a lesbian: Jamaican drug dealer makes human rights plea, Paul Sims, The Daily Mail, 15th July 2009 http://www.dailymail.co.uk/news/article-1199668/Lesbiandrug-dealers-human-rights-violated-deported-home-Jamaica.html (last accessed 16th October 2011).
18 § 24.
19 LS (Uzbekistan) v Secretary of State for the Home Department  EWCA Civ 909.
20 MK (Lesbians) Albania CG  UKAIT 00036 (9th September 2009) [see § 340 to 342]. It is understood that the Appellant is currently seeking leave to appeal to the Court of Appeal.
21 Amare v Secretary of State for the Home Department  EWCA Civ 1600;  Imm A.R. 217. Approach of Laws LJ affirmed in OO (Sudan) and JM (Uganda) v Secretary of State for the Home Department  EWCA Civ 1432;  All ER (D) 17 (Jun).
22 Rahimi v Secretary of State for the Home Department  EWCA Civ 267.
23 AK (Iran) v Secretary of State for the Home Department  EWCA Civ 941. AK (Iran) and Rahimi are the only reported cases on gender identity asylum claims.
24 AK (Iran) v Secretary of State for the Home Department  EWCA Civ 941.
25 See UK Border Agency Asylum Instruction on Gender Identity issues in the asylum claim, 13th June 2011, http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/genderissueintheasylum.pdf?view=Binary (last accessed 16th October 2011). See for a similar instruction on sexual identity: UK Border Agency, Sexual Orientation issues in the asylum claim (6th October 2010, revised on 13 June 2011).
26 For a comprehensive summary and case analysis of SW (Jamaica) see Women’s Asylum News, Issue 103, July 2011, pp. 6-8, http://www.asylumaid.org.uk/data/files/publications/167/WAN_July_2011.pdf See ‘Jamaican lesbian can stay in UK, tribunal rules’ BBC News 6 July 2011, http://www.bbc.co.uk/news/uk-england-stoke-staffordshire-14047505 and ‘Immigration judges grant Jamaican lesbian UK residency’ Pink News, 6 July 2011 http://news.pinkpaper.com/NewsStory/5663/6/07/2011/immigration-judges-grant-jamaican-lesbian-uk-residency.aspx (last accessed 16th October 2011).
27 This was the legal test at the time of the hearing in December 2009 pursuant to J v Secretary of State for the Home Department  EWCA Civ 1238;  Imm AR 73 [§ 16].
28 HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31;  1 AC 596, para. 53.
29 See Unsustainable: the quality of initial decision-making in women’s asylum claims (Asylum Aid: January 2011), p. 191. See also Jenni Millbank, From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom, The International Journal of Human Rights, Vol. 13, Nos 2-3, April-June 2009, 391-414
30 See Recommendation No 5, Fleeing Homophobia: Asylum Claims related to sexual orientation and gender identity, Sabine Jansen and Thomas Spijkerboer (September 2011) p. 11. http://www.rechten.vu.nl/nl/onderzoek/conferenties-enprojecten/conference-fleeing-homophobia/index.asp (last accessed 16th October 2011).