‘How do you prove to the Home Office something you’ve spent your life trying to hide?’

In this guest blog post trainee solicitor Caitlin Alexander writes about asylum cases and persecution on the basis of sexual orientation.

Working primarily with Immigration Law. I studied at the University of Glasgow, graduating in 2018 and obtaining my Diploma in Professional Legal Practice in 2019. So far, working as a Trainee has been incredibly insightful. I have been working towards my restricted practicing certificate so that I can represent clients in the First Tier Tribunal. It was been truly amazing to combine my passion for human rights with learning how to be commercially aware and successfully contribute to a business.

How do you prove to the Home Office something you’ve spent your life trying to hide?

I have been a Trainee Immigration Solicitor for only a few months so far, but it has been the most incredibly eye-opening experience. Being LGBT myself, I am particularly interested in asylum cases regarding persecution on the basis of sexual orientation.

A WELL-FOUNDED FEAR OF BEING PERSECUTED AND A CONSISTENT STORY…

In order to be successfully granted refugee status, the onus is on the applicant to prove to  the Home Office that they have a “well-founded fear of being persecuted”. As per case law, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, the applicant must also prove to the Home Office, among other things, that they are indeed LGBT.

I have been dealing with some cases as part of my Traineeship which involves various applications being rejected on the basis that the Home Office are not convinced that the applicant is the sexuality that they claim to be. I want to share with you one case that really got me thinking.

In the interests of GDPR, I will keep the account of this particular case as concise as possible, leaving in only pronouns as an identifying detail. In this case, the Home Office did not accept the applicant’s claim that he was bisexual. The applicant told the Home Office how he was sexually attracted to men and has been ever since he was a teenager. When asked how he knew he was bisexual, the applicant expressed that it was too hard to explain, he just has feelings of strong romantic like towards both men and women.

When appealing a decision to the Immigration Tribunal, an applicant must respond to points that the Home Office have picked up on regarding inconsistencies and sufficiency of detail during previous interviews/statements. Regarding the applicant’s account of how he knew he was bisexual, the Home Office deemed this explanation to be vague and, thus, damaging to his credibility. When I asked the applicant for a response, he explained to me that what he had told the Home Office was the best way that he could describe his feelings, as strong feelings of romantic and sexual attraction to both sexes.

It made me think, how is it that these genuinely LGBT+ asylum seekers “convince” the Home Office of their sexuality?

FROM STEREOTYPES TO ASSESSMENT

On the whole, it is much more difficult to obtain a successful grant of refugee status if you do not fit into stereotypes, i.e. you don’t look or act “gay” enough.

There is also much more of a chance of being granted asylum if your behaviour lines up with what western people deem “gay” – visiting gay bars, being outspoken and activist, wearing rainbow clothing. This is problematic in so many ways. For example, if the applicant comes from a country where homosexuality is illegal then it is not safe for them to be outspoken about their sexuality. However, the Home Office will draw negative inferences from this lack of activism.

Another thing that the Home Office ask about is what they call the applicant’s “journey to sexual realisation”. This essentially is someone’s coming out story. Successful grants of asylum seem to hinge on how cogently an applicant can describe a coming out story in line with western stereotypes. The Home Office appears to require an account of an applicant’s emotional journey to realising their sexuality. How is it possible to tell the genuine stories from the fake ones regarding something so personal? It really is not something that you can define the start, middle and end of. The Home Office also require such vivid detail of this account that anything short of this is viewed as damaging to credibility. How is an applicant expected to remember something that they spent years trying to suppress?

So, the Home Office wants an elaborate articulation of a story, right? But there seems to be no way to correctly tell this story. For example, the Home Office will assume that, if the person is gay, then they will have had relationships in their home country with someone of the same sex. If they have had same-sex relationships, then the Home Office will question how this could have been possible in light of the averred risk of persecution. They will say that, if there was a real risk of persecution then they would have been caught. Why would they take the risk? If the applicant has not had a relationship in their country of origin, then the Home Office will draw the conclusion that they are not gay at all. Lose, lose.

For the Home Office, my client’s account was not good enough in their eyes. If an applicant just knows that they are gay/bisexual then how can they articulate an account of their coming out that will satisfy the Home Office? It seems completely unjust to leave it up to majority straight, western assumptions as rationales for deciding on whether an individual is gay or not.

WESTERN GAY = CONVINCING GAY

There is also the western assumption that being gay or bisexual is only convincing when you have a same-sex partner. How is it possible for an asylum seeker to find a partner? Think about it, they probably don’t speak English particularly well, they’re living on about £5 a day from the Home Office and not allowed to work, and their immigration situation is precarious. It’s so unrealistic. A lack of a same-sex partner does not, by any means, make someone “less gay”.

In addition, the Home Office look into how active in the LGBT community an asylum seeker is when they come over to the UK. They will ask if they attend LGBT community groups, or attend Pride, for example. The problem with this is that, often, asylum seekers live out of the city and cannot afford the transport into the city to attend any groups.

Any statements submitted to the Home Office by a Solicitor must be as comprehensive as possible otherwise the applicant’s account will be deemed not to be credible. A statement must detail the persecution (if any) the applicant has faced in their home country and what persecution they would face upon return. It is necessary to give details of whether or not they would have to conceal their sexuality upon return and why they would have to do that. To meet the threshold of persecution, it is not enough simply to fear rejection by family or to be subject to unfavourable societal attitudes. Evidence, if available, must be submitted to the Home Office. For example, statements from friends/partners who can testify as to the situation.

In conclusion, the Home Office’s investigation into sexuality rests on assumptions and stereotypes – assumptions as to what a convincing coming out story should look like, and assumptions as to how a genuinely LGBT person should look and act. This is incredibly concerning and creates a mould as to the perfect LGBT asylum seeker. Anything which breaks this mould is not credible in the eyes of the Home Office.