Lesbian, Gay, Bisexual and Transgender (LGBT) Asylum Seekers – the Fight goes on

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2010 National LGBT Conference
20 November 2010

Conference welcomes the Supreme Court’s unanimous judgement on 7 July 2010, which overturned the Home Office policy and the approach previously taken by the Courts of returning lesbian, gay and bisexual (LGB) asylum seekers to their countries of origin on the basis that they would be safe if they remain “discreet” about their sexual orientation. The Court ruled that this constituted a denial of a fundamental right.

The judgment explicitly recognised that persecution for reasons of homosexuality has dramatically increased, fanned by misguided but vigorous religious doctrine. Lord Hope gave examples in his judgment (para 2): “The ultra conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right wing evangelical Christian churches indulge in throughout most of Sub-Saharan Africa is another.”

Lord Hope specifically referred to the Malawian couple Steven Monjeza and Tiwonge Chimbalanga who were arrested allegedly for holding a traditional engagement ceremony (Chinkhoswe) in Blantryres township of Chirimba, Malawi and were convicted of unnatural offences and indecent practices between males, and sentenced to 14 years in prison with hard labour, noting that, “They were later pardoned in response to international pressure by President Muthiarika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture its religion and its laws.”

Conference further notes Lord Hope’s observation that “more and more gays and lesbians are likely to have to seek protection here, as protection is being denied them by the state in their home countries”.

Conference welcomes the Supreme Court’s emphatic rejection of the “reasonable tolerability” test previously applied by the courts in which it was assumed that persons living in states where there was institutionalised persecution of homosexuality could avoid it by being “discreet”. Lord Rodger stated (para 77) “it is objectionable to assume that any gay man can be supposed to find restrictions on his life and happiness reasonably tolerable.”

However, LGBT asylum claims will still have to be proven on a case-by-case basis. Conference notes that the United Kingdom Lesbian and Gay Immigration Group (UKLGIG) report Failing the Grade: Home Office initial decisions on lesbian and gay claims for asylum (April 2010) showed that decisions are being made by Home Office case owners who lack essential training and access to appropriate guidance on dealing with such claims.

Conference is concerned that although LGBT people often face persecution because they are identified as “different” by their community, decision-makers frequently focus instead on the legal position in a country and interpret an absence of laws, or a lack of evidence that the existing laws are enforced, as evidence that there is no threat of persecution of LGBT people in that country. This is compounded by the reliance in many cases on inaccurate information on the situation for LGBT people in countries of origin.

Further, the Stonewall report No Going Back: Lesbian and Gay people in the asylum system (May 2010) found ‘almost systemic homophobia’ in the asylum system and detailed how LGB people seeking asylum experience significant and specific disadvantages as a direct consequence of their sexual orientation. It also showed that officials in the United Kingdom Benefits Agency (UKBA) rely on inaccurate information and outdated ideas about LGB people and admit that they don’t know how to question them appropriately.

Both reports also identify specific concerns relating to lesbians, including officials failing to acknowledge that lesbians often encounter harm due to the inter-relation of their gender and their sexual orientation, and ignoring elements of gender discrimination altogether. Issues concerning forced marriage, honour killings and marital rape are not acknowledged to be relevant to lesbians.

Conference believes that the available evidence strongly indicates a similar situation with regard to the treatment of people seeking asylum on grounds related to their gender identity.

Conference recognises the need to campaign for comprehensive steps to be taken to urgently rectify the fundamental institutional failings highlighted in these reports, and for these to address issues relating to gender identity and gender expression as well as sexual orientation.

Conference therefore instructs the National LGBT Committee to continue to work with others such as the Trades Union Congress LGBT Committee and the UKLGIG to:

1.Lobby the UK Government for action to address the institutional failings highlighted in the reports, raising the issues with ministers, the Home Office and the UKBA;

2.Provide information regarding progress to regional groups and publicise the issues in Out in UNISON;

3.Campaign for a “human rights” framework for asylum seekers which will give refuge to those fleeing social persecution because of their sexual orientation, gender identity or gender expression;

4.Work with Liberty and the Equality and Human Rights Commission to identify and support cases which seek to extend the law to cover those fleeing such persecution;

5.Seek the widest possible support for appropriate activities in support of this campaign.