|“To compel a homosexual person to pretend that his sexuality does not exist
or suppress the behaviour by which to manifest itself
is to deny his fundamental right to be who he is.”
Lord Hope, 7th July, 2010, reading the Supreme Court ruling
on ‘HT’ (Cameroon) and ‘J’ (Iran)
|“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.”
Home Secretary Theresa May, 7th July, 2010
|House of Commons briefing paper to Members of Parliament – 9th July, 2011.|
- What is a ‘refugee’ ? What is ‘asylum’ ?
- Is it possible to qualify as a refugee on the grounds of persecution I will face because of my sexual or gender identity?
- What evidence do I need to show to qualify as a refugee on the grounds of my sexual or gender identity?
- How do I make an application for asylum?
- What information do I need to produce to apply successfully for asylum?
- Should I consult a lawyer if I am applying for asylum?
- What is my status in the United Kingdom while my application is pending?
- Will I receive accommodation or financial support?
- What happens if my application is refused?
- What happens if my application is successful?
- More useful resources and links
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 or gender identity?
If you are afraid that if you return to your home country you are at risk from serious harm because you are lesbian, gay, bisexual, transgender or intersex (LGBTI), then you may qualify for asylum.
This will depend on whether you can show that the conditions in your country of origin are such that in law they amount to persecution of those who are open about their sexual or gender identity.
It is important to remember that previous uk court decisions have established that nobody can expect you to go back to your country of nationality and hide your sexual or gender identity to avoid persecution. This applies both to people who may have been open and also to those who have hidden their sexual or gender identity in the past.
Hiding your sexual or gender identity because you have a well founded fear of persecution and want to avoid serious harm, qualifies you as a refugee. See further HJ (Iran) v Secretary of State for the Home Department  UKSC 31 (07 July 2010).
What evidence do I need to show to qualify as a refugee on the grounds of my sexual or gender identity?
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 lesbian, gay, bisexual, transgender or intersex. 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 imprisonment. It may also include very serious discrimination. Prosecution for consensual same sex acts may amount to persecution depending on the country conditions.
This means that you need to demonstrate by evidence of what is happening in your home country that serious harm comes to people in your situation.
You will need to make clear what is the harm that you fear and you will need to show that your fear has objective basis and 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 lesbians or gay men (or those who are bisexual, transgender, or intersex) 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 in Croydon, at Lunar House, 40 Wellesley Road, Croydon CR9 2BY. If you arrive without an appointment you may be asked to return on another day. You can make an appointment by telephone.
You will first go through a screening process to establish who you are, how you arrived in the UK and basic information about your claim will be taken. You can expect to be there several hours and the Home Office will then decide whether to detain you or release you while processing your claim. The detained fast track scheme has been suspended. It is therefore now far less likely that you will be detained at the screening unit. .At a later date you will be interviewed in depth about your asylum claim.
It is very important to have a lawyer specialising in asylum law to assist you with your claim. Prior preparation of the claim and availability of a lawyer to help from the beginning can make a difference to your claim.
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 explain in detail why you fear being persecuted. This must involve a detailed description of your experiences and you should be prepared to talk in depth about your identity as a LGBTI individual, and how the environment in your country of origin affects the free expression of that identity.
In recent years many of the Home Office refusals of LGBTI asylum claims are based on them not believing that the applicants are lesbian, gay, bisexual, transgender or even intersex. It is therefore important to be prepared to talk about your experience of coming to terms with being different from your heterosexual family, and general environment. This does not mean talking about sex, but how you came to be who you are as a person.
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.
Please note that information held by the home office is not always complete and you may find more information from different sources, such as at www.ecoi.net
Home Office country information and guidance – Guidance used by UK Visas and Immigration to make decisions in asylum and human rights applications.
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 LGBTI 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.
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 application is decided, and if you appeal, until your 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 Asylum Support Team. Applicants are usually not entitled either to standard welfare benefits or to take employment, but they are entitled to healthcare.
What happens if my application is refused?
You have the right of appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) where your appeal will be decided by 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 First-Tier Tribunal dismisses your appeal you can apply to Upper Tribunal (Immigration and Asylum Chamber) for permission to appeal against the decision of the First Tier Tribunal. If permission is granted, then there will be a hearing in the Upper Tribunal to decide whether the first judge made an error of law. If there is an error of law by the First Tier Tribunal, the Upper Tribunal may order that your appeal be decided by a different judge either in the First Tier Tribunal or in the Upper Tribunal. There is a limited right of appeal to the Court of Appeal against a decision of the Upper Tribunal.
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, but in that case there may be a special way of challenging such decisions by way of Judicial Review in very limited circumstances. 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, they may instead give them a shorter period of ‘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.
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.