Earlier this year, sharia-based laws came into effect in the Asian nation of Brunei making homosexual sex punishable by stoning to death. This draconian legislation was met by widespread international condemnation, but it seems unlikely the country will revise the policy.
Unfortunately, Brunei is not the only nation with a backward view of LGTB+ rights. Just covering homosexual sex, many countries around the world still classify this act as illegal, such as Singapore, Jamaica, and the Maldives.
Therefore, it is understandable that LGTB+ individuals strive to live in a location which accepts them as people, not criminals. Sadly, obtaining refugee status in our country is not as easy for these people as it should be.
Why is the Home Office turning away LGBT+ applicants?
Government data shows – over a three-year-period – around 5,300 applications were made to the Home Office for asylum containing a reference to sexual orientation. Of those, approximately 70% were refused.
Troublingly, of those individuals who chose to appeal the Home Office's decision, more than two-thirds had their verdicts overturned. Based on this information, campaigners argued that the Home Office was setting "the bar too high" for LGBT+ individuals seeking protection.
This verdict is hard to disagree with.
Furthermore, statistics suggest the Home Office generally has an excessively complicated immigration system. In a report published by the Guardian, it was claimed the organisation lost almost three-quarters of its final immigration appeals over the course of a year. This led to one solicitor accusing the Home Office of "stopping people getting on with their lives".
What must LGBT+ individuals prove to gain protection?
Under the UN Convention Relating to the Status of Refugees, an LGBT+ individual will be recognised as a refugee in the UK if they can establish several things. Successfully doing so will grant them refugee status for five years – giving them the rights to work, study, as well as apply for benefits and housing. Furthermore, the same status will often apply to the applicant's close family members and children.
First, LGBT+ applicants must demonstrate their fears regarding persecution are well-founded. This can be difficult as these must be backed up by evidence. Those concerned for their safety are unlikely to collect proof of this before fleeing to the UK and, as a result, individuals frequently have to demonstrate persecution through oral evidence.
Second, applicants must prove their native countries persecute LGBT+ individuals. In the case of countries where homosexuality is illegal, this should be quite straightforward to prove. However, for many victims, this misses the reality of persecution. For many of these individuals, threats to their safety don't necessarily come from the state but rather from their communities or family members.
Thirdly, LGBT+ applicants must prove their sexual orientation. Demonstrating this can also be difficult as those living in a country which criminalises homosexuality are unlikely to collate evidence of this. Consequently, the Home Office has previously refused claims for asylum after not believing the applicant's sexual orientation.
The problem with evidence
In 2018, the UK Lesbian & Gay Immigration Group published the Still Falling Short report. This document looked into the standards applied by the Home Office when deciding asylum claims based on sexual orientation. Although the study concluded that significant improvements had been made in some areas, the authors felt the organisation's application of the correct standard of proof was "problematic".
Furthermore, the study emphasised that a claimant should just demonstrate their account is "reasonably likely" but stated this standard was often not applied.
On the subject of evidence, the report stated:
"Decision-makers often place very limited or no weight on corroborative evidence of sexual orientation, such as evidence from friends, partners, participation in LGBTQI+ groups, attendance at events, social media exchanges. Such evidence is often labelled 'self-serving'. Failure to produce such evidence, however, is damaging to the claim."
LGBT+ applicants need compassion – not interrogation
Those seeking refuge in the UK are often extremely vulnerable – especially if they have fled their home nations for fear of persecution. As a result, they need sympathy from our government and those processing their applications.
Proof is something which is obviously important, but the bar for submitting this must not be set excessively high. If the process is not fair, then the consequences could be extreme. Those seeking protection might be deported back to their home nations where, potentially, they could face death.
Therefore, the Home Office must evaluate the process for LGBT+ asylum seekers and ask which is more important – bureaucracy, or human life?
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
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