The Home Office and Sweden’s Migration Agency face similar challenges in assessing asylum claims based sexual orientation or gender identity.
This is a guest blog by a former member of staff at Sweden’s Migration Agency. The views are those of the author and do not necessarily represent those of UKLGIG.
The Home Office and Sweden’s equivalent, the Migration Agency, both have guidance for staff on assessment of LGBTQI+ claims. However, in practice the decision-making processes at both agencies are based on enduring stereotypes of how claimants are expected to answer questions during the asylum interview.
- Asylum seekers with LGBTQI+ claims are expected to give deeply detailed descriptions of conflicting feelings they are supposed to have experienced from an early age due to the realisation of their sexual orientation or gender identity. The focus on the claimant to present a sophisticated story of their emotional journey goes beyond the correct standard of proof.
- LGBTQI+ claimants are also expected to describe a deep inner conflict between their religious beliefs and sexual orientation or gender identity.
UKLGIG’s report Still Falling Short examines Home Office decision-making against the Asylum Policy Instruction: Sexual Orientation in Asylum Claims (version 5 of February 2015 and version 6 of August 2016). The report is based on a qualitative study of LGBTQI+ cases and pinpoints several areas where the Home Office demonstrates insufficiency. With several years of experience working for the Swedish Migration Agency, I believe the Agency faces similar problems in the assessment of LGBTQI+ cases, especially regarding two specific themes.
The Swedish Migration Agency’s instructions on sexual orientation and gender identity in asylum claims is not as extensive and detailed as the Home Office Asylum Policy Instruction: Sexual Orientation in Asylum Claims. The Swedish instructions direct case officers to UNHCR’s guidelines on International Protection No. 9: Claims to refugee status based on sexual orientation and/or Gender identity for further support on assessments. However, the instructions from the Migration Agency suggest some relevant themes for interviews with persons with LGBTQI+ claims.
The case officers are instructed to ask the claimant about their childhood, and expect the claimant to have experienced emotions of feeling different early in life. This in turn may have led to feelings of stigma and later isolation. Furthermore, the instructions point out that answers are highly personal, with no objective right and wrong. Rightly, this theme can be highly relevant during the interview. However, in practice, this particular topic has become the sole focus of the interviews.
Previously both the Home Office and the Swedish Migration Agency received wide critique for interviewers asking LGBTQI+ claimants inappropriate questions on sexual practices. That is no longer the case, and it has become a well-integrated practice in the agencies to avoid questions around sexual practice. However, instead focus has shifted to assess to the degree to which the claimant can describe their conflicting emotional journey. This has become the single most important issue and failure to do so is a reason for refusal. To focus on a claimant’s self- realisation journey is in a sense a positive development, but expectations of sophisticated answers have been set at an unrealistic level. It is of course highly personal if you have the capacity to formulate your experience in depth. Also, it leaves no room for a different experience. For instance, a claimant that early on felt fairly confident in their sexual orientation or gender identity, and therefore can’t give a testimony of long periods of conflicting emotions, may still have faced extensive problems due to their sexual orientation or gender identity in their home country and is therefore in need international protection. But lack of providing a comprehensive narrative on conflicting emotions will in many cases lead to refusal.
In Sweden as well in the UK the legal standard of proof in asylum cases is set at reasonable likelihood. However, with the focus on self-realisation narratives, the bar is set too high in practice and goes beyond the correct standard of proof.
UKLGIG’s report Still Falling Short also finds that many caseworkers at the Home Office had the expectation that asylum seekers who were genuinely LGBTQI+ would experience a complex internal conflict in relation to their religious beliefs. Similarly, the Swedish Migration Agency focus is to ask questions on how the claimant’s religious belief fits with their sexual orientation or gender identity. Here too, the claimants are expected to give comprehensive reports on their wide theological considerations, usually with the expectation to have stepped away from religious practice. Again, the decision-makers expect answers based on stereotypes of how LGBTQI+ people ‘should’ give accounts of a deep inner religious conflict. Even though, there can be many reasons to why a claimant cannot describe such experience and it will solely shed light on the nature of their religious belief, rather than their identity in relation to their sexual orientation or gender identity.
The Home Office and the Swedish Migration Agency’s instructions on the assessment of LGBTQI+ claims clearly state the difficulty for claimants to speak about these issues, and that the individual experience will vary greatly from person to person. Therefore, it is essential to assess the cases thoroughly and not focus on a couple of themes. Still, in practice decision-makers set the bar too high in regards to the extent LGBTQI+ asylum seekers are expected to discuss these specific themes during the interviews.