Text last amended 12 March 2017
Links updated 12 March 2017
A protest about assylum | Outrage/UK Gay News | Date: 2006 | Photographer unknown | 15094
What this is about
For gay men and lesbians seeking assylum from a fearful existence elsewhere, there are problems in obtaining assylum in the United Kingdom and in Europe. The problem is understandably exacerbated by the public response to acts of terrorism in Europe.
On November 7, 2013, the European Union’s highest court ruled that the fear of imprisonment for homosexuality in African countries is grounds for asylum in the EU. The existence of laws that could lead to the imprisonment of homosexuals, “may constitute an act of persecution per se” if they are routinely enforced. It is unreasonable to expect gay people to hide their sexuality in their home countries in order to avoid persecution. Concealing their sexuality would amount to renouncing a “characteristic fundamental to a person’s identity.”
Laws specifically targeting homosexuals do make them a separate group, but a ban on homosexual acts alone is not grounds to grant asylum.
The UK Supreme Court ruled in 2010 that gay men and lesbians claiming assylum in the UK cannot be deported back to countries where they will not be free to choose their own lifestyle, or where their lives are in peril if they return.
Detailed figures are difficult to obtain but there are suspicions among workers in this area of policy that lesbians and gay men seeking assylum find it particularly hard to enter the UK. While only 24 per cent of all assylum seekers are successful, at one time, less than 3 per cent of gay men and lesbians appeared to be successful.
In January 2017 it was announced that the number of refugees claiming asylum in Britain because being gay puts them in danger in their own country has increased by 450 per cent in five years. 1,115 people claimed asylum due to their sexuality in 2014 compared with just 200 in 2010. Most of the claimants were from Pakistan, with 748 claiming asylum because of their sexuality between 2007 and 2014.
The Supreme Court issued the following guidance to the authorities in dealing with assylum claims.
Tribunals should decide on the evidence whether the applicant really is homosexual.
Then the tribunals should consider whether the applicant faces persecution if they are open about their homosexuality.
If so, does the applicant have a well-founded fear of persecution even if they avoided the risk by living discreetly.
If an applicant opts to live discreetly because of social pressure, for example not wanting to distress his parents, the application should be rejected.
But if the tribunal finds that the applicant has no choice and has to live discreetly in order to avoid persecution then the application should be allowed.
In July 2010, then Home Secretary Theresa May remarked: “We have already promised to stop the removal of asylum seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution.
“From today, asylum decisions will be considered under the new rules and the judgement gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case.”
The Home Office in 2017 stated: “Updated guidance on LGBT asylum claims was recently published by the Home Office, which forbids “detailed questioning in regard to sexual practices” and requests for “sexually explicit evidence”.”
That all sounds very pleasant and cordial. The reality is that gay and lesbian assylum seekers continue to experience difficulties and hardships in gaining secure entry to the UK. Cases are now dealt with quickly and sometimes with limited access to services and advice.
UK Government advice to many applicants is to return to their country of origin and live quietly rather than openly as a gay man or lesbian, and they would be safe if they did so. That advice has been widely criticised by human rights groups in and outside the UK. It also seems to contradict the advice of the Supreme Court.
In one case a doctor seeking assylum here because he had treated HIV+ patients in Africa was told to go back because he would be perfectly safe if he did not treat HIV+ patients back home.
Then there is another problem facing applicants – officials and tribunals do not believe they are gay, and fast track their deportation. There are instances of airlines refusing to return deportees to their original country. There are also reports that gay asylum seekers are going to extreme lengths to prove their sexual orientation, filming themselves having sex and describing intimate encounters – an infringement of their human right of privacy in their personal and sexual life. There are also cases where a gay or lesbian couple have arrived and have been dealt with differently and with different outcomes.
In January 2017 Conservative MP David Burrowes said its very difficult for the Home Office to confirm the claimants are gay. “It is hard to prove your sexuality and ensure genuine claims are successful.”
In May 2011 the government admitted that it is still not collecting data on the number of people who claim asylum or are refused on the basis of their sexual orientation. The lack of data means that it is not known whether gay and lesbian asylum seekers are being returned to countries where they face persecution.
In April 2015 the Home Office was ordered by Mr Justice Cranston, sitting in the Upper Tribunal of the Immigration and Asylum Chamber, to return to the UK, at the Home Office’s expense, a family including a child who had already been deported to Nigeria, because the rights of the child had not been sufficiently considered by The Court. The ruling casts doubt on the legality of the Government’s “deport first, appeal later” policy.
On 12 June 2015, the High Court’s Mr Justice Nichol ruled that the fast track assylum appeals process was unfair on the applicant, and is unlawful. He issued a quoshing order which is held in abeyance and the process remains in place while the Home Secretary and Lord Chancellor refer his decision to the Court of Appeal. Then on 26 June 2015 The High Court further ruled that the process be suspended completely while the Government Appeal is heard and considered. That Appeal was heard on the 29th July 2015: three Court of Appeal judges dismissed the Appeal by the Lord Chancellor against Mr Justice Nichol’s ruling. The Master of the Rolls, Lord Dyson, declared that the fast track rules (FTR) “are systematically unfair and unjust” and “do not strike the correct balance between speed and efficiency and fairness and justice” and said precisely how that is done is a matter for Parliament.
Gay Activist asks readers and activists in the UK to find out more about the issues affecting gay men and lesbians trying to seek a safe refuge in our community, and discuss the matter with their Member of Parliament. The current situation is not satisfactory for all parties.
Acts of Parliament
BBC News, 7 Jul 2010: Gay asylum seekers from Iran and Cameroon win appeal
Stonewall, No date: Asylum research uncovers damning Home Office failures
Political Scrapbook, 5 May 2011: UK Border Agency To Assylum Doctor: Don’t treat gay AIDS patients
UK Gay News, August 6, 2011: Air France Refuses to Fly Failed Gay Asylum Seeker to Cameroon
Pink News, 5 May 2011: Government ‘still not collecting data on gay asylum claims’
Huffington Post, 4 Feb 2013: Gay And Lesbian Asylum Seekers ‘Feel Forced To Show Sex Films To Prove Sexuality To UK Border Agency’
Independent, 7 Nov 13: Fear of imprisonment for being gay in African countries is grounds for asylum, EU court rules
Independent, 22 April 2015: Home Office ordered to bring back migrant mother and five year old son deported to Nigeria
BBC News, 26 June 2015: Fast-track asylum appeal system suspended by Court of Appeal
Guardian, 24 November 2015: How do you prove you are gay? A culture of disbelief is traumatising asylum seekers
The Local: 17 Sept 2016: Swedish Police slammed for deporting gay Ugandan
Daily Mail, 17 January 2017: Number of gay refugees seeking in assylum in Britain increases 450% in five years
Independent, 12 March 2017: Abbey Kyeyune to be deported