Asylum Overview
[Note 1 - where applicable: In the UK, "Solicitor" = "Lawyer"]
[Note 2 - this is an overview - for more detail see
Asylum
Procedure]
What is a
'refugee'? What is 'asylum'?
If you are in the UK and fear returning to your home country
because of persecution which you would face there, you may qualify
as a 'refugee'. If you are granted refugee status in the UK, you
will be granted permission to remain in the UK for five years. If
you still need the UK's protection after five years, you will then
be granted permanent stay in the UK.
In order to qualify as a refugee, you would need to convince the
authorities that you meet the definition of 'refugee' set out in the
UN Convention Relating to the Status of Refugees. Under that
definition, you have to demonstrate that you are a person who has a
"well-founded fear of persecution for reasons of race, religion,
nationality, membership of a particular social group or political
opinion" in your country of nationality or your former country of
residence.
The protection given to a recognised refugee is called 'asylum'.
Asylum means that the UK agrees not to send you back to a country
where you face such persecution.
Is it possible to qualify as a refugee on the grounds of persecution
I will face because of my sexual orientation?
For a long time, the Home Office resisted the idea that gay men
and lesbians who faced persecution in their home country because of
their sexual orientation should be recognised as refugees. Happily,
in a decision taken in March 1999, the House of Lords decided that
gay men and lesbians who would face persecution in their home
country constitute a 'social group' from which claims for asylum
should be allowed. The Home Office now accepts that if a person does
have a well founded fear of persecution because they are gay or
lesbian then they can qualify for asylum.
The decision of the House of Lords can also be interpreted to
mean that individuals who are HIV positive and face persecution
because of their health status may also be recognised as refugees.
What do I need to show to qualify as a refugee on the grounds of my
sexual orientation?
You need to show that there is a reasonable degree of likelihood
that if you were returned to your home country you would face
serious harm because you are a gay man or lesbian. Serious harm must
come from either the government authorities or other sections of the
population from which the government is either unable or unwilling
to protect you.
Serious harm would include the possibility of extra-judicial
execution, physical violence, torture and denial of liberty. It may
also include very serious discrimination. Prosecution for consensual
same sex acts may of itself amount to persecution.
You will need to make clear what is the harm that you fear and
you will need to show that your fear is justified. This means
proving your case as best as possible with evidence. The immigration
courts have given guidance in certain cases as to whether gay men or
lesbians are at risk of persecution in particular countries. Whether
you are at risk will change as circumstances change in your home
country.
In deciding whether or not to apply for asylum, you should take
into account the fact that the vast majority of applications for
asylum are refused. Cases are commonly refused either because the
applicant is not believed or because the Home Office thinks the fear
is not well founded (or what is feared is not serious enough to
amount to persecution). This is not an easy route to remain in the
UK and an application for asylum should not be made unless you have
a genuine fear of persecution.
How do I
make an application for asylum?
See also
Asylum
Procedure
If you are already in the UK, you can make the application to the
Home Office by attending an Asylum Screening Unit. These are
situated in various parts of the UK. The main one is in Croydon. It
is very important that, before doing so, you contact a lawyer
specialising in asylum law to assist you since the asylum process
may move very quickly following the application. You may be
interviewed in depth about your fear of persecution soon after you
apply or given a questionnaire which needs to be filled out very
quickly. You may be detained and sent to an immigration removal
centre where your application will be fast-tracked - this means it
will be decided in a matter of days. Prior advice is therefore
essential.
If you are outside the UK, you can apply for asylum on arrival at
any port.
What information do I need to produce to apply successfully for
asylum?
You will be required to give a detailed statement about why you
fear being persecuted. You will need to give details about any
persecution that you have suffered in the past. If you have not
suffered persecution in the past, you must explain why you believe
that you will be persecuted in the future. You should be in a
position to provide objective information from human rights
organisations or the press or other sources showing that the kind of
persecution you describe does in fact occur in your home country. If
you have a solicitor, they can help you access this information.
The Home Office has access to information about what is happening
in all countries of the world. They will form their own view as to
whether your fear is well founded. It will, however, help your case
if you can submit evidence to show that your fear of persecution is
real and that other gay men and lesbians in your position have been
persecuted.
Home Office overview of Asylum Rules
Should I consult a lawyer if I am applying for asylum?
Yes, in order to ensure that your case is properly presented, it
is essential to consult a lawyer who specialises in asylum law and
who, preferably, has represented gay or lesbian asylum seekers
before. If at all possible, you should consult the lawyer before
applying for political asylum. Asylum law is a complex area of law
and recent legislation means that advice right from the start of the
process is essential.
"How to get
good asylum advice" - A very informative guide from Advicenow.
Important and recommended reading for asylum seekers.
What is my status in the United Kingdom while my application is
pending?
An answer to this question will depend on your status at the time
of applying and your lawyer will be in the best position to advise
you. You will not be removed from the UK until your asylum appeal is
determined and any right to further appeal has been exhausted.
Will I
receive accommodation or financial support?
If they are destitute, applicants may be entitled to some
assistance with respect to food and housing from the National Asylum
Support Service. Applicants are usually not entitled either to
standard welfare benefits or to take employment.
What
happens if my application is refused?
You have the right of appeal to an Immigration Judge, who is a
judge operating independently of the Home Office. Many successful
cases are resolved only at this point. There will normally be a
hearing at which you would give evidence. If the Immigration Judge
dismisses your appeal you can apply to the High Court for a review
of the decision and if an error of law was made by the Judge, the
High Court may order that your appeal be reconsidered by a different
Judge.
However, you may not get a right to appeal. There are now
‘designated states’ which are presumed safe by the Home Office and
asylum applicants from those states may have their claim certified
as ‘clearly unfounded.’ If a claim is certified in this manner,
there is no right of appeal from within the United Kingdom against a
refusal of asylum. This underlines the need for expert advice at an
early stage.
Sometimes, even if the Home Office decides to refuse an
application for refugee status, a decision to grant the individual
'humanitarian’ or ‘discretionary’ leave to remain in the United
Kingdom may be made. This is rare but may be appropriate if you are
in a relationship with a British Citizen (or someone with right of
abode in the UK) and there are exceptional circumstances why you
could not go back to your own country to apply for an unmarried or
proposed civil partner visa.
What
happens if my application is successful?
You will be granted permission to stay for five years. You will
be entitled to apply for a UN refugee travel document and you will
also be entitled to work, study and claim benefits in the UK in the
same way as a UK citizen. You will also be entitled to apply in due
course for British nationality if you are granted permanent stay at
the end of the five years. This will be granted only if you are
still at risk of persecution.
Publications &
Links
UKLGIG
submission to Home Affairs Committee - December 2005
"How to get
good asylum advice" - A very informative guide from Advicenow.
Important and recommended reading for asylum seekers.
A
Navigation Guide: Lesbian, Gay, Bisexual and Transgender (LGBT)
Refugees and Asylum Seekers - written by Anisa de Jong, former
asylum co-ordinator of the Safra Project, a resource project
for Muslim LBT women in the UK, and a freelance researcher on issues
relating to LGBT rights, gender and refugees.
Details of entitlement to NHS treatment - October 2007
Asylum Seekers and Refugees -
NHS overview
Asylum Policy Instructions
(pdf)- Home Office policy instructions
detail. Including at vi. "Assessing the claim" para 8.7 "membership
of a particular social group" (the outcome of Shah v. Islam in the
House of Lords in 1999).
ICAR - The
information centre about asylum and refugees in the UK
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