If you are in the UK and fear returning to your country of origin because of persecution, you may qualify as a refugee. The protection given to a recognised refugee is called ‘asylum’ and means that the UK will not not to send you back to your country of origin.
In order to qualify as a refugee as an LGBTQI+ person, you need to convince the Home Office or a judge that you would be at risk of serious harm in your country of origin because of your sexual orientation, gender identity, gender expression or sex characteristics.
Starting your application
You should apply for asylum on arrival in the UK by telling the border officers. Do not delay making your claim; you should apply at the earliest opportunity.
It is important to have a lawyer to assist you during your asylum application.
If you have not applied for asylum at the border, you need to call the Home Office on 0300 123 4193. You will be asked to provide your personal details and an address where the Home Office should send you a letter for an appointment for an interview at the Asylum Screening Unit, Lunar House, 40 Wellesley Road, Croydon CR9 2BY.
If you are destitute or homeless, you do not need to book an appointment in advance and can go straight to the Asylum Screening Unit.
The first of two interviews that you will have with the Home Office is called the screening interview. At your screening interview the Home Office will ask you questions to establish who you are and how you arrived in the UK. They will also ask you some basic questions about your claim.
They will take your fingerprints and your photo. They will then give you a card which confirms your personal details and that you are an asylum seeker. The Home Office will check their records to see if you have previously visited the UK or had leave to remain, or whether you have been fingerprinted or made a claim for asylum in another European country. If your fingerprints are found in the European database Eurodac, the Home Office may decide to return you to the European country where you claimed asylum or were fingerprinted.
You will have the right to use an interpreter provided by the Home Office free of charge, but very often the interpreter will be on the other end of a telephone. It is important that you are happy that you and the interpreter understand each other well.
You can be at the screening unit for several hours. The Home Office will then decide whether to detain you or release you while processing your claim. It is very unlikely that you will be detained at the screening unit.
During your screening interview, the Home Office should also ask if you would prefer your substantive interview to be conducted by a man or woman. Your substantive interview is the second interview you will have with the Home Office. It will take place at a later date and the Home Office will ask about your claim in detail,
Preliminary Information Questionnaire (PIQ)
At or after your screening interview you may receive a questionnaire that you need to complete and return to the Home Office by a particular date.
This questionnaire contains detailed questions on your case and you should get legal advice to complete it. The questionnaire is an important document and you should ensure you fully understand the questions, so completing it with a lawyer would greatly assist you.
If you do not return the questionnaire by the deadline or do not give the Home Office a reason why you cannot complete it, your asylum application may be considered as withdrawn. You need to contact the Home Office with your reason before or the deadline.
You need to think about your answers carefully because the questionnaire will be part of your evidence and completing it properly will take some time.
If you do not have a lawyer and you need to return the questionnaire, our Legal Officer may be able to give you some advice, including how to ask for more time. Our Legal Officer will not be able to complete the form with you.
Make a copy of the form for yourself to keep before you send it to the Home Office. Show this copy to your lawyer when you find one.
After your screening interview, you will have to wait for your substantive interview. It is at the substantive interview that the Home Office will ask you about the details of your claim. The time you will wait for your interview differs from person to person. Some interviews are scheduled quickly while some take several months. These interviews can last several hours.
At the interview you will be asked questions about your past experience in your country of origin, what made you decide to leave and what you fear. For example you can be asked if you had a partner, if you have ever been attacked, or how did you enter the UK. The questions vary depending on the circumstances of your case.
You will also be asked if you are feeling well enough to be interviewed, if you have any medical conditions and at the end you will have the opportunity to give any additional comment you might have.
If you need a break during your interview, you can ask. If you do not understand a question you need to let the interpreter or caseworker know. If you do not remember a date or some other detail, it is better to say so rather than “guessing” to avoid risk of mistakes that may damage your credibility.
While you wait for your interview, you should prepare your evidence with your lawyer. You will then decide with your lawyer when to submit your evidence.
The Home Office routinely tape-records interviews but you can make sure they do so by making a request in advance.
The Home Office can provide an interpreter for the interview free of charge. You simply need to tell the Home Office that you need an interpreter at your screening interview or after you receive the invitation to the interview, if it’s not already noted on the invitation letter. Make sure you understand each other well. If you do not understand a question, you can ask them to repeat or clarify it.
At your interview, you may be asked to complete a form in which you give permission to the Home Office to request your medical records from your doctors. You do not have to give your consent for this if you do not want to. Refusing to consent on this form should not affect the outcome of your asylum application. It is best to seek your lawyer’s advice before signing the consent form.
You need to explain in detail why you fear being persecuted in your country of origin. Many Home Office refusals of LGBTIQI+ asylum claims are because they don’t believe the applicants are lesbian, gay, bisexual, trans, queer or intersex. It is therefore important to be prepared to talk about your experience in relation to your sexuality or gender identity. This does not mean talking about sex, but how you came to be who you are as a person.
The main categories of evidence are:
- Your own personal witness statement describing your story and your experiences as an LGBTQI+ person. Your statement should also give details of any persecution you may have suffered in the past. It could also include descriptions of any relationships you have had. If relevant, you should write an explanation about why you did not apply for asylum earlier. You will also need to explain why you fear returning to your country and why you believe you would be persecuted.
- Witness statements from friends, family and current or former partners which can support what you say about your sexual orientation, gender identity, gender expression or sex characteristics and if applicable, anything that has happened to you. Not everybody will have, or need, statements like these.
- Medical reports if, for example, you were attacked in your country or if you suffer from any medical conditions.
- Human rights reports, press articles or other sources of information which show what the situation in your country is for LGBTQI+ people, as evidence that you are at risk of serious harm as an LGBTQI+ person. If you have a solicitor, they would normally help to research this information. The Home Office has access to information about what is happening in every country. 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 support your claim that LGBTQI+ people in your country are persecuted.
The Home Office will make a decision on your claim on the basis of your substantive interview and your written or documentary evidence. This may take a few days or months. If you don’t receive a decision within a reasonable time, your lawyer may challenge the Home Office’s delay.
There are five possible outcomes:
Outcome 1: granted refugee status for 5 years
If you are granted refugee status, you will 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 for permanent leave to remain at the end of the five years if you are still at risk of persecution.
Outcome 2: granted humanitarian protection for 5 years
Outcome 3: granted another form of leave
The Home Office might give you ‘discretionary’ leave to remain in the United Kingdom. This is rare but may be appropriate if you are in a relationship with a British Citizen (or potentially someone with another status 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.
Outcome 4: refused – with a right of appeal in the UK
Outcome 5: refused – no right of appeal until after removal from the UK, known as being ‘certified’
You may not get a right to appeal that you can exercise from within the UK. There are some countries which are presumed safe by the Home Office and people from those countries may have asylum claims certified as ‘clearly unfounded.’ If a claim is certified in this manner, there is no right of appeal from within the United Kingdom. In some cases you may be able to challenge such decisions by way of Judicial Review, which involves an application to the Upper Tribunal (Immigration and Asylum Chamber). You need the advice of a lawyer to discuss this option.
If the Home Office has refused your asylum application, you will normally have the right of appeal. You must submit your appeal within 14 days of the date of the refusal letter.
Your appeal will be decided by a judge at the First-Tier Tribunal (Immigration and Asylum Chamber). The judge is independent of the Home Office.
Appeals normally involve a hearing inside a court room at which you give evidence. Any witness you may have will also need to attend. We recommend you have a lawyer to represent you and the Home Office will send someone to represent them.
Confidentiality in appeals
Appeals at tribunals or court in the UK are public and any member of the public may attend. Often there will be other people who have their own appeal in the same room when your case is being discussed.
The determination of any appeal (the written decision which sets out the detailed reasons) is a public document and will have the names of the appellant and any witnesses recorded in it. It is rare for First Tier Tribunal determinations to reach the public domain, but it can happen and Upper Tribunal decisions are routinely published.
If you do not want your name made public, you must tell the tribunal that you need that information to be kept confidential. They will not keep it private unless you ask them to. You should ask for this at the earliest possible stage – usually when you send an appeal form to the tribunal. Your lawyer can make this request for you.
There are two things you can ask the tribunal to do:
- Anonymise the appeal by replacing the name of the appellant with a set of initials or, if there is a very strong reason, removing names from whole determination. The names will remain in the copies of the determination sent to the appellant and the Home Office but names will not be in the public record copy or on the list of cases on the wall outside the hearing room
- Have any discussion about the case in private with no one else allowed in the room.
You can ask for one or both things. You should get a decision from the tribunal before the hearing takes place about whether they agree to your requests. On the day of the hearing, before it starts, make sure the tribunal staff know that a private hearing or anonymity have been ordered.
There are two possible outcomes
This means you have won. The Home Office should issue you with refugee or humanitarian protection, or another type of leave if you win your appeal on the basis of your private and family life in the UK rather than on asylum.
However, the Home Office has a right to apply for permission to appeal against the judge’s decision. The procedure they will follow and possible outcomes are the same as they are for your appeal (described below).
This means you have lost. It is very important that you have lawyers to advise you if this happens.
If you think there is a material error of law, then you can ask the First Tier Tribunal to give you permission to appeal to the Upper Tribunal. If they refuse, you can ask the Upper Tribunal to give you permission. This is done in writing. Make sure that you appeal within the given deadline. A material error of law means that the judge made a mistake in applying the law or misunderstood the evidence in a way that impacted on their decision.
- If permission to appeal is refused by the Upper Tribunal, there is a difficult legal process to appeal this further in a very limited number of cases and you will need a lawyer to help you.
- If permission to appeal is granted, the Upper Tribunal will then hold a hearing to decide whether there is an error of law made by the First Tier Tribunal.
If an error of law is found, then the Upper Tribunal will re-make the decision, or will send it back for the First Tier Tribunal to re-hear the case.
If after re-making the decision, the Upper Tribunal dismisses the appeal, there is a possibility of appealing to the Court of Appeal. Again this is a difficult process which is possible only in a limited number of cases and you will need a lawyer to help you.
Finding a lawyer
If you if do not have sufficient funds to pay for a solicitor privately, you may be entitled to legal aid. Legal aid can pay for:
- your lawyer to prepare your asylum claim
- a professional interpreter to attend your booked appointments with your lawyer
- translation of evidence
- Expert reports, which can be very expensive to pay for privately.
Legal aid generally cannot pay for a lawyer to go to your asylum interview with you unless you are in a detention centre. It also cannot pay for work on asylum appeals that have poor prospects of succeeding or for someone to change to a new legal aid lawyer (unless there is a very strong reason).
If you are in a detention centre, there are advice surgeries provided by legal aid lawyers on a rota. Ask the welfare officer to sign up for an appointment if you do not have a lawyer.
The number of people looking for legal representation is much greater than the number of cases that legal aid lawyers can take on. UKLGIG can help sometimes help people who have not been able to find a lawyer for themselves.
We hear of some lawyers who are failing to carry out work that can be properly funded by legal aid. We encourage people to work hard with their lawyers to prepare their asylum claims and to ask questions if they are concerned that work that the lawyer is not doing the work that is needed. If you continue to have problems, please contact us.