New UKBA policy on sexual orientation and gender identity

Following the ruling by the Supreme Court that the ‘reasonable tolerability’ test runs contrary to the 1951 Refugee Convention a new asylum instruction on sexual orientation and gender identity has been issued.

The instruction contains guidance on how sexual orientation and gender identity issues should be taken into account when looking at issues of: persecution; state protection; and future fear within the legal, political and social context of thecountry of origin.

Hostility and discrimination

The instruction makes clear that hostility or threat of violence to lesbian, gay, bisexual or transsexual (LGBT) individuals need not necessarily be the defining feature of persecution. Discriminatory measures, whether cumulative or singular also have the potential to amount to persecution if such discrimination has sufficiently serious consequences, including restrictions on earning a living or restricted access to public places.

Non state actors and state protection

The instruction also provides guidance on non state actors, recognising that persecution can result from the failure of the state to effectively protect individuals. Protection is defined in the instruction as being effective when the state takes reasonable steps to prevent the persecution or suffering of serious harm, and the applicant has access to such protection. There is an understanding that in some situations it is not possible for an LGBT individual to alert the authorities to his or her need for protection.

Interviewing and Credibility

When interviewing an applicant the guidance requires decision makers to have an awareness of the status and treatment of LGBT individuals and to make ‘a sensitive enquiry into the applicant’s realisation and experience of sexual orientation or gender identity.’ There is a recognition that LGBT applicants may feel ashamed about their sexual orientation and struggle to talk about it openly. Heterosexual relationships or parenthood should not be automatically taken as evidence of a lack of credibility, nor should the lack of previous same-sex relationships.

Deciding the claim

As indicated by the Supreme Court, people can no longer be required to behave discreetly in their home countries to avoid discrimination. However, how an applicant would naturally behave on return to their home country is to be considered and someone who would choose to live discreetly because he or she wanted to avoid embarrassment or distress to friends and family would ‘not be deemed to have a well founded dear of persecution and [would] not qualify for asylum.’

The guidance provides that the following steps need to be considered:

a) Is the applicant gay or someone who would be treated as gay by potential persecutors in the country of origin?

b) If yes, would gay people who live openly be liable to persecution in that country of origin?

c) How would the applicant behave on return? If the applicant would live openly and be exposed to a real risk of persecution, he has a well-founded fear of persecution even if he could avoid the risk by living discreetly.

d) If the applicant would live discreetly, why would he live discreetly? If the applicant would live discreetly because he wanted to do so, or because of social pressures (e.g. not wanting to distress his parents or embarrass his friends) then he is not a refugee. But if a material reason for living discreetly would be the fear of persecution that would follow if he lived openly, then he is a refugee.

New UKBA policy on sexual orientation and gender identity

New UKBA policy on sexual orientation and gender identity

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