Home Affairs Committee

THE ASSESSMENT OF CREDIBILITY OF WOMEN, … VICTIMS OF TORTURE .. WITHIN THE DECISION MAKING PROCESS AND WHETHER THIS IS REFLECTED IN APPEAL OUTCOMES.

Summary

This response concerns the process of applying for asylum and the treatment of gay and lesbian applicants.196 A major hurdle facing these asylum seekers in an appeal is proving that they are gay. This has led some asylum seekers to feel under pressure to provide degrading video or photographic evidence to support their claims. It describes the obligation to protect lesbian and gay asylum seekers incorporated into European law and transposed into UK 2006 Regulations. It refers to the Supreme Court ruling in 2010 holding that the underlying rationale of the Refugee Convention is to enable a person, whether they are gay, black or a descendent of a political dictator to live freely and openly without fear of persecution. This case led to guidance based on a 4 stage test. From 2010 there was a notable shift in the UKBA’s197 approach to one of not accepting sexual identities claimed by asylum seekers resulting in the dilemma faced by legal representatives, who have a duty to act in their client’s best interests, when asked to submit degrading evidence to support an asylum claim. This response recommends that the humane approach must engage with the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender and explore not just conduct but also the emotional and affectional component to sexual identity. It recommends a model put forward by the author to help establish the existence of a well-founded fear of harm.

1. In 2013, there are 78 countries in the world which criminalise any form of same-sex conduct in private by consensual adults198. 42 of these countries specifically single out lesbians. 5 of these countries: Mauritania, Sudan, Saudi Arabia, Yemen and Iran provide the death penalty. The Islamic states of Nigeria and parts of Somalia also enforce the death penalty. In Uganda, the Anti-Homosexuality Bill renders criminal prosecution of even straight landlords for not reporting the fact that they have a gay tenant. It is not a safe world to be gay.

2. The obligation to protect lesbian and gay asylum-seekers is incorporated into European Union law. Since the 2004 Qualification Directive entered into force on the 6 of October 2006199, 26 EU member states, including the United Kingdom,200 have a positive obligation to recognise the asylum claims of adult lesbians and gay men, pursuant to Article 10(1)(d):

‘Member States shall take the following elements into account when assessing the reasons for persecution:

(d) A group shall be considered to form a particular social group where in particular:

members of that group share an innate characteristic, ... or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

depending on the circumstances in 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 ...;’

3. The definition above, transposed into the UK 2006 Regulations, does enable the vast majority of claims based on sexual orientation to come within the particular social group Convention reason. However, children who identify as lesbian or gay prior to 16, ie the age of consent in the UK, are prohibited from protection due to the concentration on sexual identity in this Article, prohibiting inclusion of ‘acts considered to be criminal’.

4. In July 2010, in HJ (Iran) and HT (Cameroon)201, the Supreme Court unanimously held that the underlying rationale of the Refugee Convention was to enable a person, whether they were gay, black, or a descendent of a political dictator, to ‘live freely and openly’ without fear of persecution [§ 53 and 65].

5. At paragraph 82, Lord Rodger provided guidance for administrative and judicial decision makers on how to determine such claims. In summary the four stage test is as follows:

(i) Is the individual gay, or will he be perceived to be?

(ii) Do openly gay people in the country of origin face a well-founded fear of persecution?

(iii) Will the individual be open on return? If so then he is a refugee.

(iv) If the individual is voluntarily discrete, only because of family or societal pressure, then the individual is not a refugee.

• — if on the other hand, a material reason for discretion is the well-founded fear of persecution, then the individual is entitled to refugee status.

6. The UK Border Agency has supported the test in the subsequent Supreme Court case of RT (Zimbabwe)202 in 2012. In 2011 the Upper Tribunal (Immigration and Asylum Chamber) amplified the extent of the test to straight women in Jamaica who would be perceived as lesbian unless they adhered to a specific heterosexual narrative, which included having a male partner, children or being receptive to the advances of a persecutory male caller if they were did not display these specific characteristics or had an explanation for their absence (SW (Jamaica)203).

7. Up until July 2010 the UK Border Agency refused claims on the basis of ‘voluntary’ discretion, and had no concerns about establishing the sexual identity of the gay applicant.204 Suddenly, since July 2010, supposedly due to a fear of false claims, the shift has been from discretion to disbelief. The battleground is now firmly centred in ‘proving’ that they are gay.

8. Since the publication of the UK Border Agency’s Asylum Policy Instructions on Sexual Orientation issues in the Asylum Claim in October 2010, amended in July 2011 to separate the gender identity element, the issue of credibility is accepted by the UKBA to be one of ‘current’ sexual identity (NR (Jamaica) applied205), and that self-identification should be the starting point. Any additional enquiry is accepted by the UKBA to be sensitively handled206.

9. Nonetheless, not a single refusal decision letter seen by this author, or colleagues, let alone cites or applies this internal guidance. Decisions are based on countless adverse credibility findings arising from an approach fixated with establishing sexual conduct in the bedroom, rather than exploring issues surrounding expression of sexual identity in the ‘outside world’.

10. In the 2012 case of a 16 year old gay teenager from Nigeria, Counsel for UKBA cross-examined his foster mother on her evidence surrounding a photograph she had of the Appellant and his best friend, which she stated showed from their body language that they were gay. Counsel asserted, “How do you know they are gay … they weren’t kissing each other in the photograph were they?” The teenager had been told by the interviewing officer at his screening interview when he was 15, that the problem with him was that he was not ‘religious enough’. In the case of a lesbian from Uganda, the appellant’s girlfriend was cross-examined about her sleeping arrangements with the Appellant, even though both of them had been named as lesbians in an internet article published the month before, with references in the comments section to how they would be ill-treated on return to Uganda. In another 2012 case, the UKBA refused to accept evidence from a recognised gay refugee from Uganda that the appellant was gay, as he had first met him at a party where they had stripped down to their underwear, and he knew that he was attracted to the witness due to the state of his arousal. The UKBA’s stance was that straight men could have also attended the event. In the earlier proceedings the First-tier Tribunal Immigration Judge refused to accept the evidence of a well known UK domiciled Ugandan gay activist that the appellant was gay, due to the fact that the witness has not had sex with the appellant. All three individuals are now recognised refugees, but their experiences only serve to illustrate the inhumane procedures they encounter in order to prove who they are, in order to avail themselves of refugee protection by the UK.

11. The pressure to provide proof of being gay within UKBA led some asylum seekers to desperate measures. In some cases, gay asylum seekers in the United Kingdom feel forced to provide photographic and in some instances video footage of themselves engaging in same sex conduct to prove that they are gay. The following email exchange in December 2012 shows how legal representatives, in this case a Caseworker and Solicitor, treated such evidence:

The Question (December 2012)

“We have a client that the Home Office refused his asylum claim. The Home Office does not accept that he is gay. We have lodged an appeal and currently awaiting a NOH [Notice of Hearing]. 

Client on his part has provided additional evidence including a video showing him during the act. Accordingly to client, his partner on this video cannot be traced as this was a one night stand. However, according to client he obtained the permission of the other party before filming.

According to a colleague who has seen the video, the video is very convincing and leave [sic] little or no doubt about client’s sexual orientation.

The Reply:

“We had a similar case where the client said he was gay. He forwarded videos and the IJ in Bradford did not have objections for the video to be played in Court. However, at the CMR [Case Management Review] we obtained the specific details of the POU who should be sent the material. The POU [Presenting Officers Unit] gave us the name of the officer and we send it under separate cover marked private and confidential explicit content. Surprisingly the POU assessed before the full hearing that the client was not aroused.

“I was told once that I should not put forward evidence that I have not viewed. If your client’s instructions are that he wants the evidence in, then I think it is our duty to follow the instructions and not feel embarrassed.

You are right that if clients start to make movies having sex to prove that they are gay does not sit right. However, as your [sic] aware many are desperate. However, coupled with attending gay night clubs, gay sessions, having a gay partner should assist to the lower standard of proof that they are actually gay.

After all, it is for the client still to prove that he is gay and not the home office. I cannot see a way of getting round this. I don’t think turning up to court stating client is gay and leaving it at that would assist the client. If all you have is the DVD, then I think you should run with it.”

12. The UK Lesbian and Gay Immigration Group accept that asylum seekers seek guidance on whether they should rely on such material207. The above example is to illustrate an extreme but not isolated example. The use of such material in the UK would breach article 3 ECHR protection against inhumane or degrading treatment. To film same sex conduct, where in the above example consent was not provided by the other party, gives rise to a unilateral conclusion that the system has broken down. No human being should resort to such extreme measures.

13. “Sexual identity is more than just conduct” (MN (Kenya)208). The 2007 Yogyakarta Principles provide a definition of sexual orientation209:

“Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender..”

14. The video evidence is completely tainted by the fact that it is a reaction to the culture of disbelief. The humane approach must engage with the Yogyakarta definition and explore not just conduct, but also the emotional and affectional component to sexual identity. It is a very rare occurrence that the individual is caught by the police in the bedroom performing a sexual act. It is the recognition of non-conformity, outside the home by the potential persecutor which lies at the heart of the refugee claims based on sexual or gender identity.

What is the alternative?

15. Clearly all gay asylum seekers will have to ‘prove’ that there are gay. The burden of proof is on the Appellant, but the standard of proof is a low one, ie the ‘reasonable degree of likelihood/real risk’ (ie lower than the civil standard of proof). There is no questionnaire to prove that an individual is gay. Imagine only being able to answer 15 out of the 40 questions, a response could be ‘NOT GAY’. Answer 39 out of the 40 questions correctly, “NOT GAY—learnt the answers from material in the public domain”. This is not a hypothetic scenario to those who practice in the field, and are aware of the UKBA’s response to Somalia minority clan asylum seekers who answer the questions on clan identity correctly. In 2011, as a response to the call by UNHCR at a meeting of Non-Governmental Organisations, the author created the ‘DSSH’ model. DSSH stands for ‘Difference, Stigma, Shame’ and ‘Harm’. Ask any straight man when did they first realise that they were straight, a response usually includes a confused mumbling with something along the lines of “I’ve always known” or “I don’t know”. Nevertheless, gay asylum seekers are probed about when this event, ie “When did you realise you were gay” happened in their lives. The central experience is not waking up one day and realising that the person is gay, but in the main, recognition of difference.

16. Following recognition of difference, which can be expressed in non-hetero-normative conduct in childhood, for example a young boy playing games with the girls rather than the boys, a detailed narrative develops. When the recognition of difference occurs, then there is stigma, attached to difference. Stigma results from the fact that the family, the neighbours, your community will not accept you because of your difference. Shame is the internalised impact of stigma. Shame does not have to cross the threshold of mental illness, as it is a natural consequence of marginalisation. The model is not subjecting all gay asylum seekers to be mentally ill to avail themselves of refugee status. Difference, Stigma and Shame are common themes in the narrative of the majority of LGBTI individuals globally. What renders the individual a refugee? The well-founded fear of harm, either from the state, or non-state state sanctioned, harm due to a lack of effective state protection.

Difference

• — Recognition that not like other ‘boys/girls’ with respect to personal sex gender role development.
• — Gradual recognition of attraction to members of same-sex/opposite sex.
• — Gradual recognition of gender difference in gender identity claims/intersex claims.
• — May have commencement of same-sex conduct.
• — Recognition that this ‘difference’ sets LGBTIs apart from straight people.
• — Recognition and association with other LGBTIs—the other—group differentiated identification.
• — Not living a ‘heterosexual’ narrative.

Stigma

• — Recognition that close family members/friends disapprove of conduct/identity.
• — Recognition that the ‘majority’ does not accept/disapproves of the conduct/identity of the LGBTI individual.
• — Recognition of state/cultural/religious mores/laws which are directed towards LGBTIs.

Shame

• — Impact of STIGMA.
• — Feelings associated with isolation.
• — Impact of being the ‘other’ rather than the ‘same’.

Harm

• — State harm—criminalisation.
• — Fear of arrest/detention/torture.
• — Non-state agent harm—mob violence.
• — Family—honour killing.

17. The model first appears in printed form in the spring 2012 report on, following the September 2011 informal meeting of experts at the world conference of Immigration and Refugee Law Judges (‘IARLJ’) in Bled Slovenia, held in conjunction with ECRE and UNHCR.210

18. The United Nations High Commission for Refugees, endorsed the model in the October 2012 Guidelines on International Protection211, citing the IARJ paper in the footnote [§ 62]:

Ascertaining the applicant’s LGBT background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.

19. In October 2012 at the Inter-Governmental Consultations on Migration and Asylum and Refugees’ workshop on Gender, Sexual Orientation and Gender Identity held in Geneva, representatives from 16 governments from around the world were provided with training on DSSH. The model provides triggers, to enable a detailed narrative to be provided by the asylum seeker on the experiences surrounding their claims within a detailed statement and/or interview. The core issue is not that the individual is gay, but they do not conform to a specific heterosexual stereotype held by the potential persecutor, ie they are not ‘straight enough’. This non-conformity leads to drastic life threatening consequences, hence the reference to ‘curative rapes’.

20. In allowing the asylum claim of the gay teenager from Nigeria, the First-tier Tribunal in September 2012 found the following:

The Appellant’s narrative is that he claims that he has always felt different, he has not conformed to heterosexual norms and his account of gay men in Nigeria leading double lives is inherently plausible.

I find that if the Appellant is returned to Nigeria, then it is very likely that he would present as a gay man and has said that he does not want to live a lie and that he is who he is. I do not find that the Appellant , given his young age, would be willing to live discreetly.”

21. In 2013 for gay and lesbian asylum seekers, the core issue is Difference.

S Chelvan212
Barrister

April 2013

©Parliamentary copyright

Prepared 11th October 2013