Asylum Claims for Lesbian, Gay, Bisexual and Transgender (LGBT) people
Our LGBT immigration lawyers are experienced in asylum claims for Lesbian, Gay, Bisexual and Transgender (LGBT) people who have well-founded fear of persecution. If you are afraid that if you return to your home country you are at risk from serious harm because you are lesbian, gay, bisexual, transgender or intersex (LGBTI), then you may qualify for asylum and our expert LGBTI immigration lawyers will be able to assist you. You would need to demonstrate however that the conditions in your country for those who are open, or perceived to be open about their sexual orientation, gender identity or sex, amount to persecution in law.
It is widely documented that LGBTI individuals are the targets of killings, sexual and gender-based violence, physical attacks, torture, arbitrary detention, accusations of immoral or deviant behavior, denial of the rights to assembly, expression and information, and discrimination in employment, health and education in all regions around the world. Many countries maintain severe criminal laws for consensual same-sex relations, a number of which stipulate imprisonment, corporal punishment and/or the death penalty. In these and other countries, the authorities may not be willing or able to protect individuals from abuse and persecution by non-State actors, resulting in impunity for perpetrators and implicit, if not explicit, tolerance of such abuse and persecution.
You need to convince Home Office that because you are LGBTI that there is a reasonable degree of likelihood that you would face serious harm if you go back to your home country.
A claimant may qualify for asylum when they fear persecution on account of their actual or perceived sexual orientation that does not, or is deemed not to conform to prevailing political, social or cultural norms in their country of origin.
You cannot be expected to return to your country and keep your sexual orientation secret to avoid persecution. In one of the major case UK courts have established that nobody can expect you to go back to your home country where you cannot live openly and hide your sexual or gender identity to avoid persecution. The decision applies to all people who have hidden their sexual or gender identity in past to avoid persecution and who have been open about their sexual identity.
If you cannot return to the country of origin due to the well- founded fear of persecution on the basis of your sexual orientation and/or gender identity, then you may qualify for refugee status.
Legal aid is available for cases involving Asylum where a person fears returning to their country of origin because of their sexuality or gender issues. We can represent you from the point of claiming Asylum at the Home Office to appealing a refusal in the Immigration and Asylum Tribunal.
Overview of Asylum
An asylum seeker is someone of any age who has fled their home country to find a safe place elsewhere. A refugee is someone whose asylum application is successful.
Who can apply for asylum in the UK?
The UN Convention Relating to the Status of Refugee sets out who can apply for refugee status. It outlines their rights and the legal obligations of the countries that abide by it. The criteria that an asylum applicant must meet in order to be eligible are:
- They must be outside of their own country
- They have a well-founded fear of persecution
- They have experienced persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion
- They are unable to obtain protection in their own country
Lesbian, gay, bi and trans people can be considered a 'social group' for the purposes of an asylum claim.
What does 'a well- founded fear of persecution' mean?
The term "persecution", though not expressly defined in the 1951 Convention, can be considered to involve serious human rights violations, including a threat to life or freedom as well as other kinds of serious harm. In addition, lesser forms of harm may cumulatively constitute persecution. What amounts to persecution will depend on the circumstances of the case, including the age, gender, opinions, feelings and psychological make-up of the applicant.
An individual will be considered to face 'persecution' if they can show they face serious harm in their home country. Usually this will be in the form of physical danger such as beatings, torture, death, detention or long-term imprisonment. Severe discrimination, such as denial of employment or housing, can also be considered.
The persecution can come from Government authorities, or from sections of the wider community that the Government is unable or unwilling to prevent.
Intolerance from other people and communities, including derogatory comments and stigmatisation, will not alone count as persecution. The fact that a person will be able to live a more open life in the UK as a lesbian, gay, bi or trans person also does not in itself qualify them for refugee status.
Hiding sexuality because of a well- founded fear of persecution
For some years, many asylum courts ruled it would be 'reasonably tolerable' for lesbian, gay and bi people to be secretive about their sexuality in their own country to avoid persecution. Many were denied refugee status as a result of this. However, in 2010 an important court case rejected this idea, and it is now agreed that if a lesbian, gay or bi person has to hide their sexual orientation in order to protect themselves from persecution, they are eligible for refugee status in the UK.
The application process
Applications for asylum can be made to an immigration officer at a port of entry into the UK or at the Asylum Intake Unit in Croydon. In very exceptional circumstances, such as someone unable to travel to Croydon, including unaccompanied children, applications can be made at Home Office Local Enforcement Offices. The majority of applications are made via the Asylum Intake Unit.
If you are already in the UK, you can make the application to the Home Office by attending an Asylum Screening Unit in Croydon, at Lunar House, 40 Wellesley Road, Croydon CR9 2BY. If you arrive without an appointment you may be asked to return on another day. You can make an appointment by telephone by calling 0300 123 4193.
Asylum applicants have to attend a screening interview, usually soon after making the application. This interview is used to collect basic information such as identity, country of origin, when and how the person arrived in the UK, and what documents they have, such as a passport or other identity papers.
Preliminary Information Questionnaire (PIQ)
At the screening interview you may be given a questionnaire that you need to complete and return to the Home Office within a time scale written on the form.
Application Registration Card (ARC)
The asylum seeker is fingerprinted and a photo is taken which is put on the Application Registration Card (ARC) which is sent to them within a few days of screening. Unaccompanied children have a shorter interview, called a welfare interview.
Each application is assigned to a casework team within UKVI to conduct the interview and make a decision on the claim. These two activities may be conducted by different individuals and may be passed from one team to another.
A second, more detailed interview then takes place, often referred to as a substantive interview. The basic information from the first interview is checked to ensure a consistent account is given. It is at this interview that the asylum seeker has to provide the evidence to back up his/her asylum claim and show that they are in need of protection and cannot safely be returned to their country of origin.
While the application is under consideration the asylum seeker may be required to report on a regular basis to one of the 15 Reporting Centres across the UK. They are expected to produce their ARC when they report. Failure to report can lead to the withdrawal of any asylum support they have been awarded.
- Outcome 1: granted Refugee Status for 5 years.
- Outcome 2: granted Humanitarian Protection for 5 years.
- Outcome 3: granted another form of leave.
- Outcome 4: refused – with a right of appeal in the UK.
- Outcome 5: refused – no right of appeal until after removal, i.e. certified cases [remedy is Judical Review, i.e. application to the High Court].
- This is available if a person does not have sufficient funds to pay for a solicitor privately.
- Legal Aid solicitors have very strict limits to Legal Aid spending.
- Legal Aid solicitors will only be able to represent you at an appeal if they think there is more than a 50% chance of success
Legislation and legal framework
The 1951 Refugee Convention
Claims relating to sexual orientation are primarily recognised under the 1951 Refugee Convention ground of membership of a particular social group, but may also be linked to other grounds, such as political opinion and religion, depending on the circumstances.
The European Council Directive (2004/83/EC) of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection provides a framework for determining whether a person is a refugee. The Directive was transposed into UK law through the refugee or person in need of international protection (qualification) regulations 2006 and through changes to the Immigration Rules, and has applied to all protection-based claims since 9 October 2006.
Article 2(c) defines a refugee as a third country national who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country.
Article 10(1) (d) notes that:
depending on the circumstances of the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.
The European Council Directive (2004/83/EC) and the UNHCR guidelines on international protection no. 9: Claims to Refugee Status based on Sexual Orientation confirm that, as understood in refugee law, a particular social group can be based on sexual orientation. LGBTI people in most countries will meet this definition and will thus form members of a PSG.
Stigmatisation, shame and secrecy
Some LGBTI people may originate from countries in which they are made to feel ashamed, humiliated and stigmatised due to their sexual orientation. This may be through homophobic attitudes, instilled within children in early years that being gay is shameful and wrong. This can be compounded where the individual is made to feel different and separated from their peers, causing such negative messages to become internalised. Claimants may reference in their narratives, elements of strong disapproval from external sources, indicating that the claimant's sexual orientation and or conduct is seen to be unacceptable, immoral, sinful, and socially disgusting.
This can emanate from many sources including the following;
- organisations of state
- law enforcement agencies
- religious leaders and political groups
- it may also arise from cultural customs and legislation
Treatment that could amount to persecution Harm and violence
A climate of hostility including acts of violence, persecution and serious discrimination can exist in a particular country even when homosexual activity is not specifically laid down as criminal in a penal code or legal statutes or where laws do exist but are not enforced. Hostility and violence can be committed against LGB persons by non-state agents, such as mob or family violence, or violence perpetrated by other members of the public.
Claims made by people on the basis of their sexual orientation will often highlight a fear of being vulnerable, 'singled out' and suffering harm. LGB based claims can reveal exposure to extreme levels of physical harm, including the following:
- honour killing
- medical abuse
- inhuman or degrading treatment
- physical or sexual violence
- curative rape
- beating and other forms of physical abuse
Claims may also highlight psychological harm which be manifested through such measures as:
- arbitrary detention
- mob violence
- homophobic bullying
- forced prostitution
- and limitations on the freedom of movement
Home Office should also be mindful of the impact felt by some claimants arising from the harm and discrimination inflicted upon them by external sources. Such impact can take the form of:
- post-traumatic stress
- suicidal tendencies and attempts
- shame and guilt
- stress related psycho-somatic symptoms and diseases
Any individual making an application for asylum should seek legal advice as soon as possible. Asylum law is complex and hard to navigate without professional and experienced support from a lawyer who understands the issues faced by LGBT people.
Need legal advice?
UK immigration law is extremely complex and constantly changes. The UKVI has strict criteria relating to different types of visa. Therefore, it is essential you get the right legal advice from an expert UK immigration lawyer to make sure your application is successful, first time. We will guide you through every step of the process, putting you in the best place possible to get a good result.
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