Asylum: Claims based on sexual identity

The 1951 Geneva Convention relating to the Status of Refugees doesn’t identify persecution on account of sexual orientation as grounds for refugee status. These types of asylum claim are usually made by attributing the persecution to ‘membership of a particular social group.’

The UK Border Agency (UKBA)’s approach to assessing sexual identity-based asylum claims has been scrutinised in recent years by NGOs and the courts. Some organisations have criticised the quality of decision-making in these cases and suggested that there is “systemic discrimination” against gay and lesbian asylum seekers.

On 7 July 2010 the Supreme Court unanimously rejected the UKBA’s view that it could refuse asylum if it would be ‘reasonably tolerable’ for the applicant to avoid future persecution by concealing their sexual identity in their country of origin. The Court issued detailed guidance on how these types of asylum claim should be assessed in the future. The UKBA automatically reviewed some cases in light of the decision, but not those which had already exhausted the appeals process.

The Government welcomed the Supreme Court’s decision. The Coalition Agreement pledged not to remove asylum seekers from the UK if they are at proven risk of persecution due to their sexual orientation or gender identification. The UKBA has since enhanced its guidance and training for asylum caseworkers on how to handle these types of asylum claim, but has been criticised for failing to monitor how the new approach is being implemented.

Constituents seeking advice about an asylum claim should be advised to seek professional advice from a suitably qualified specialist in immigration and asylum law. The disclaimer in this note and the UK Lesbian and Gay Immigration Group’s database of solicitors may be helpful in this regard. The Stonewall guide to refugee status and humanitarian protection for lesbian, gay and bisexual people may also be of interest.