UK Immigration and LGBTI Asylum Seekers

The world is undoubtedly changing and at a far faster pace than some people would like. As immigration solicitors we are not talking about global environmental change. We will leave that to the G7 summit and world leaders. What we are talking about is worldwide societal attitudes towards homosexuality and to transgender and intersex people. As expert individual immigrationsolicitors we often help gay or transgender asylum seekers who are seeking asylum in the UK because they fear persecution in their country of origin due to their homosexuality or sexual orientation. That’s because not every country in the world is embracing societal change at the same pace as other countries and people can't put their lives on hold in the hope that their country of origin will change its LGBTI laws or cultural norms.

In this article we take a look at the leading case law on UK immigration and LGBT asylum seekers.

UK London based and online immigration and asylum solicitors

For specialist advice on asylum and individual immigration applications call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.

 LGBTI asylum seekers and the statistics

Historically, according to available 2018 UK government figures, nationals from Pakistan make the most asylum claims based on homosexuality and sexual orientation, followed by applications by Bangladeshi nationals and individuals from Malaysia and Uganda.

As immigration solicitors it is important to understand the volume of LGBTI asylum claims and asylum appeals as well as the home countries of the majority of LGBTI asylum applicants. That’s because to make a successful asylum claim an asylum applicant has to be able to show that they fear persecution as members of a particular social group and or ill-treatment in breach of Article 3. For LGBTI applicants persecution is based on their sexuality or gender identity but can also include other factors, such as their politics and political activities.

LGBTI asylum seekers and the law

The law on asylum for any asylum seeker is the same whatever the basis of their application. The law is found in Article 1(a)(ii) of the 1951 Geneva Convention.

Article 1 states a refugee is a person, who, owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of their nationality and is unable or, owing to such fear, is unwilling to avail themselves of the protection of the country of their nationality.

It has long been established that being LGBTI could fall within Article 1 if the individual asylum seeker has a well-founded fear of persecution based on their sexuality or characteristic.

For a human rights claim, an applicant has to bring a claim under Article 8 European Convention on Human Rights (ECHR), namely the right to family and private life or Article 3 ECHR, namely the prohibition of torture and inhuman and degrading treatment.

LGBTI  asylum claims

To make a LGBTI asylum claim you must come from a country where there is LGBTI discrimination although immigration solicitors stress that homosexuality does not need to be illegal in your country of origin to make a successful UK asylum claim.

As an asylum applicant you need to be able to prove that you as an individual are at real risk of serious harm from your government or from people in your country and the government either can't or won't protect you.

Many people have their asylum claim rejected. If that happens to you it is best to get expert legal advice as you may be able to appeal the decision to the asylum and immigration tribunal. An asylum solicitor can advise you on the best way of presenting your appeal case and the sort of evidence you will need to produce in support.

Expert legal advice is needed on your asylum application and any appeal as whilst it may be easy to establish that in your country-of-origin homosexuality is illegal that isn’t enough. You need to prove that you are lesbian, gay, bisexual, transgender or intersex and that you either fear persecution by operation of the law in your home country or from within the community.

Many asylum seekers fear that they are penalised in their asylum claim if they are either not openly gay or transgender or if they come from a country where being LGBTI isn’t illegal but in reality, they could not live openly as an LGBTI person.

The leading court case for LGBTI asylum claims remains the Supreme Court case of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. This case continues to explain the approach to take on a LGBTI asylum claim and establishes the test that should be applied when assessing such a claim

The LGBTI asylum application

Immigration solicitors say it is essential that when making a LGBTI based asylum claim that the case of HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 is followed carefully as that ensures the best prospects of a successful asylum claim.

Step by step, a LGBTI asylum seeker has to be ready to answer the following questions:

1. Is it reasonably likely that the asylum seeker is lesbian, gay , bisexual, transgender or intersex or that the asylum seeker will be perceived or thought of as LGBTI in their home country?

The required standard of proof is establishing a ‘real risk of persecution’ arising out of being LGBTI or being treated as LGBTI.

2. Is there a real risk that a LGBTI asylum seeker would face persecution if they lived openly as LGBTI in their country of origin?
3. Would the particular LGBTI asylum applicant live openly as a LGBTI person or would they conceal their sexual orientation if returned to their home country?

If an asylum seeker says they will be living openly as a LGBTI person then their asylum claim should succeed. If an asylum claimant says that they can't live openly as a LGBTI person as they will be persecuted then their asylum claim should succeed. An asylum claim would fail if,  for example, the LGBTI person was concealing their sexual orientation not because of persecution but because they did not want to upset a family member who would not be able to accept them for who they are.

Home Office guidance on asylum interviews and LGBTI asylum seekers

On the 3 June 2021 the Home Office published updated guidance on the conduct of asylum interviews. At page 46 of the new guidance for Home Office officials it is stated that:

‘Where sexual orientation or gender identity is the basis of a claimant’s claim, you should focus the interview on establishing claimant’s current sexual orientation or gender identity, how they define and express it and how this is relevant to their fear of harm in their home country’.

The guide goes on to say that:

‘The claimant is not required to ‘prove’ their sexual orientation or gender identity, but simply to establish that is it reasonably likely that they are so or will be perceived to be. For the purposes of the interview, self-identification as lesbian, gay or bisexual will be the normal starting point as an indication of a claimant’s sexual identity. However, although self-identification is the starting point, this does not mean that a claim will be accepted; it must still be subject to proper assessment of the facts and circumstances when all the evidence is considered in the round’.

OTS Solicitors LGBTI asylum seeker claims

If you are worried about your asylum interview or you are concerned that your LGBTI asylum seeker claim may be refused it is best to get expert immigration law legal advice as soon as possible so you know how best to present your asylum application and your appeal options.

UK London based and online immigration and asylum solicitors

For expert advice on asylum and individual immigration applications call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.