Nationality and Borders Bill

Written evidence submitted by Mermaids (NBB15)

Submission to the Public Bill Committee on the Nationality and Borders Bill 2021

We use ‘trans' as an umbrella term for those who are transgender, non-binary, genderqueer, genderfluid, agender, are of non-Western gender identities, and those who have a trans history.

Mermaids (Registered charity no.1160575) has been supporting trans children, young people up to the age of 19 (inclusive) and their families since 1995.  

Mermaids is grateful for the opportunity to submit evidence to the Committee. Please note that Mermaids is not an expert of immigration and asylum law, nor do we offer expert support to asylum seekers or refugees. This submission is sent within the context of our charity’s work.

We are grateful to have worked closely with Rainbow Migration to understand the potential impact of this Bill in greater detail and would encourage MPs and the Committee to seek their further commentary and recommendations with regard to the potential LGBT+ implications for this Bill.

1. Introduction

1.1. The Nationality and Borders Bill 2021 (hereafter ‘the Bill’) if enacted in its current form is at risk of having a significantly harmful impact on trans people who are fleeing persecution in other countries and seeking asylum in the UK.

1.2. The specific areas of the Bill which we foresee having the most detrimental impact on trans people are the following:

1.2.1. The introduction of "temporary protection status" which may force many trans people to continue to hide their gender identity whilst in the UK for fear of persecution when they are made to return to their country of origin if they were to socially and/or medically transition (e.g. legally changing their name, altering their gender expression, undergoing gender-affirmative medical treatment etc.) in the UK.

1.2.2. The introduction of accommodation and offshore processing centres poses particular risks for trans people seeking asylum who are already a vulnerable group, and who may be placed in unsafe and violence situations where they face verbal and physical abuse, including sexual abuse.

1.2.3. By raising the standard of proof to a higher level of the "balance of probabilities", trans asylum seekers, who already experience difficulty in ‘proving’ their gender identity in order to claim asylum, will be forced to meet an even more onerous requirement.

1.2.4. Establishing penalties for, what are to be deemed, "late claims", will have a disproportionate and arbitrary impact on trans people claiming asylum as many people are not aware that they can apply for refugee protection on the grounds of gender identity.

1.2.5. Lastly, introducing a rigid deadline for providing evidence and penalising those who provide "late evidence", risks negatively impacting trans people applying for asylum specifically. Trans people already face difficulty in ‘proving’ their gender identity, due to the innateness of someone’s gender identity together with social expectations and stereotypes ostracising a population of trans people from protection. We see a similar difficulty in respect of LGBA identities insofar as it is by its nature next to impossible to prove something so intimate, without it becoming disproportionally invasive.

1.3. Enacting this Bill as it stands would undermine the UK Government’s commitment of being a global leader in advancing the rights and dignity of not only trans people, but LGBT+ as a whole.

1.4. We will expand on each of the above areas to discuss why the introduction of this Bill as it stands is a grave concern for the trans community and organisations such as ourselves who support trans people in the final section of our submission.

2. Our Recommendations:

2.1. In order to ensure trans people fleeing persecution are protected by the UK Government, we recommend the following:

2.1.1. Parliamentarians working on this Bill understand the specific impact and difficulties this Bill presents to LGBT asylum seekers and refugees.

2.1.2. Provide refugee protection to all people at risk of harm in their countries of origin.

2.1.3. House people seeking asylum in the community in the UK and remove clauses from the Bill allowing for extraterritorial process or consideration of claims.

2.1.4. Remove Clause 29 from the Bill that raises the standard of proof to the "balance of probabilities".

2.1.5. Remove Clauses 10, 11 and 36 from the Bill which would unreasonably and potentially disproportionately penalise trans people for "late" asylum claims.

2.1.6. Trans Awareness Training to be provided to all policy and frontline workers within this area of policy implementation to ensure that all trans asylum seekers and refuges are treated with dignity, sensitivity and humanely.

2.2. We provide further context below to support our recommendations.

3. Temporary Protection Status

3.1. The Bill makes provision for differential treatment of people based on how they travel to the UK and the point at which they apply for asylum (Clauses 10 and 11). Those who travel via a third country or do not claim asylum immediately would be designated as "Group 2" refugees. If their asylum claims are successful, they would probably only be granted temporary protection (instead of the current 5-year refugee leave to remain with the possibility of settling in the UK after that) and have their cases regularly reviewed to see if it would be possible to remove them from the country.

3.2. It’s vital to understand that the transphobia and persecution that forces people to leave their homes to seek refuge elsewhere most often do no dissipate after only a few years. Often the transphobia that fuels such persecution is a decades-long reality of discrimination and oppression that forces people to flee.

3.3. To penalise such individuals for the ways in which they’re forced to flee by allowing them only temporary protection would leave many people under immense stress and anxiety, which is at risk of negatively impact their mental health and wellbeing.

3.4. It is also at risk of denying trans people the ability to live in the UK as themselves and forcing them to hide their gender identity, as living openly as themselves in the UK would mean increasing the risk of persecution if they were removed to their country of origin.

3.5. Particularly if one considers that many trans people when ‘coming out’ and living openly may wish to socially and/or medically transition, which can include changing their name, altering their gender expression and in some instances changing their physical appearance. All of which can put trans individuals at a higher risk of facing persecution in their country of origin.

3.6. However, being forced to hide their gender identity whilst in the UK to avoid such persecution may cause immense distress for trans individuals who cannot live as themselves openly and attempt to rebuild their lives, especially for those who experience gender dysphoria.

4. Accommodation and Offshore Processing Centres

4.1. The Bill introduces provisions for accommodation centres, including centres outside of the UK while people’s applications for asylum are accessed or before that, while deciding whether their asylum claims are "admissible" in the UK.

4.2. There is thorough evidence from several contexts, including Australia, that offshoring asylum processes can

‘lead to situations in which lead to situations in which asylum seekers are indefinitely held in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It can also de-humanise asylum-seekers. UNHCR has voiced its profound concerns about such practices, which have "caused extensive, unavoidable suffering for far too long", left people "languishing in unacceptable circumstances" and denied "common decency".’ (UNHRC UK, May 2021, para. 16, page 3)

4.3. We know that large accommodation centres, which often do not afford those held there any privacy, are often harmful spaces for trans individuals housed who can experience both verbal and psychical abuse, including sexual abuse.

4.4. A Stonewall and Rainbow Migration (formerly known as UKLGIG) report from 2016 entitled No Safe Refuge: Experiences of LGBT asylum seekers in detention found that:

4.4.1. LGBT asylum seekers face discrimination and harassment in detention centres. Those who are open about their sexual orientation or gender identity often experience harassment and abuse from other detainees. Some report discrimination from staff. Many feel forced to hide their sexual orientation and gender identity while in detention as they fear bullying and discrimination.

4.4.2. Trans asylum seekers face particular threats of violence in detention. One trans interviewee reports being placed in multiple male detention centres, even though she made it known that she identifies as a woman. Trans detainees face particular danger in having to share bedrooms and communal showers with other detainees.

4.4.3. Detention staff fail to protect LGBT asylum seekers from abuse. Staff often lack basic understanding of LGBT issues and even display discriminatory attitudes towards LGBT detainees.

4.4.4. LGBT asylum seekers cannot fairly pursue their legal claim while being detained. They are required to collect detailed evidence to ‘prove’ their sexual orientation and gender identity. Due to a lack of privacy and resources, LGBT asylum seekers are gravely disadvantaged when fulfilling these requirements while in detention.

4.4.5. Detention has serious ill-effects on the mental health of LGBT claimants. The challenging and unsafe detention environment causes constant stress and severe anxiety. Depression, self-harm and suicide attempts were reported by most interviewees as a result.

4.4.6. Health care staff aren’t equipped to respond to the specific needs of trans people. Trans detainees often can’t continue their transition, which leads not only to emotional distress but has a direct effect on their mental and physical well-being.

4.4.7. LGBT asylum seekers find it difficult to settle back into society after their experiences of detention. Many describe experiencing severe mental health issues, isolation, discrimination and financial hardship post-detention. They are often excluded or feel unable to access diaspora or LGBT communities and therefore miss out on the support those community networks could provide.

4.5. Trans individuals should not be placed in unsafe and harmful spaces, especially as they already face higher rates of self-harm and suicide compared to non-trans individuals (in the year 2018, 46% of trans people thought about taking their own life, and 41% self-harmed, Stonewall 2018)), and are especially vulnerable after their mistreatment in their countries of origin which forced them to flee.

5. Standard of proof

5.1. At present, to be granted asylum, applicants have to demonstrate that there is a "reasonable degree of likelihood" of persecution if they were returned to their country of origin. Clause 29 of the Bill proposes to increase the standard of proof for assessing whether someone has a particular characteristic that gives rise to the fear of persecution to the higher level of "balance of probabilities".

5.2. This increase in threshold will innately mean more trans people will be unable to satisfy the standard because the standard does not work for the reason they are fleeing in the first place. It is inherently difficult for anyone to prove their gender identity due to the innateness of gender identity, as well as the ways in which society continues to enforce gender stereotypes which are outdated and do not accurately represent the ways in which people may express their gender identity.

5.3. Furthermore, dependent on their country of origin and the persecution they faced, many trans people may not be able to meet the standards imposed on trans people in the UK. Many countries do not allow trans people to legally change their name, or socially transition in other ways, and many countries do also not provide gender-affirming healthcare and treatment for trans people. Therefore, if ‘evidence’ deemed acceptable in order to ‘prove’ their gender identity is similar to the requirements which need to be met to obtain legal gender recognition in the UK – medical diagnosis of gender dysphoria, evidence of having ‘lived in their gender identity for two years’ for example, official documentation like bank statements in ‘a new name’ etc.- many trans people fleeing persecution will not be able to provide such ‘evidence.

5.4. It’s also important to acknowledge that many trans people do not wish to medically transition, or may not wish to change their name etc. Everyone’s journey of gender identity is unique. The only ‘evidence’ a person should have to provide is their own testimony, which is already a difficult thing to do, when they’re expected to talk about extremely personal and/or intimate aspects of their lives to a complete stranger, who can decide not to believe them or not. Adding to this the point at 3.4, it is difficult to see how this Bill remedies the ‘mischief’ it is there to do.

6. "Late Claims"

6.1. Many people do not know that you can receive refugee protection on the grounds of sexual orientation or gender identity. Therefore, many trans people will flee an immediate danger and not realise on arrival in another country that they can apply for asylum, believing that asylum / refugee protection is solely for people fleeing war or political persecution. Clauses 10, 11 and 34 of the Bill open the possibility for asylum seekers who apply some weeks, months or years after entering the UK to be penalised for that. The Bill stipulates that individuals must "present themselves without delay".

6.2. Specifically, young trans people may not know they’re trans until a significant time has passed. This can be for many reasons, but can be because of a lack of inclusive and positive education, or lack of trans visibility around them etc. It may also be the case that although they’re aware they’re trans, they fear the repercussions of telling people. Mainstream media in the UK is overwhelming hostile to trans lives, and it’s reasonable to assume that many may not think the UK is safe place to be out as a trans person.

6.3. Like other people from around the world, trans people from countries that are unsafe also come to the UK as students, or tourists or for work, but can later become too afraid to return home and may therefore overstay their visas. This can be especially the case if the individual ‘came out’ as trans in the UK, and underwent certain aspects of their social and/or medical transition, which they’re unable to hide if forced to return to their country of origin and put them at a higher risk of persecution.

7. "Late" Evidence

7.1. Clauses 16, 17 and 23 of the Bill create a mechanism which forces people to produce relevant evidence by a fixed date. If this deadline is missed, the evidence could be given "minimal weight", which will impact a decision-maker’s assessment of an applicant’s LGBT+ status and/or whether they have a well-founded fear of persecution.

7.2. This would be acutely detrimental to trans people because of the difficulties in gathering and providing evidence that helps confirm their gender identity as discussed above. Many trans people may have spent a long time trying to hide their gender identity from other people not only in their countries of origin but also in the UK.

7.3. Further, it can be an enormous challenge, if not impossible, to obtain supporting evidence from former partners, friends or family members in the country of origin who can be too afraid to write a witness statement, or because the individual was never ‘out’ to them due to fear of rejection or abuse.

7.4. For trans people specifically, many are unable to access healthcare in their countries of origin and unable to receive timely support within the UK and again, struggle to offer such supporting evidence as a result. To repeat, not every person requires medical intervention, but those that do are not always able to access it. We therefore strongly recommend that one should not have to offer medical evidence in order to ‘prove’ they are trans.

7.5. If we consider the ways in which even in the UK, which provides asylum to those fleeing transphobic persecution in other countries, many trans people face transphobic hate crime. Galop’s 2020 report on transphobic hate crime found that:

7.5.1. 80 per cent of trans people have experienced hate crime in the last 12 months;

7.5.2. 70 per cent of victims felt that the police could not help them.

7.5.3. Nearly 1 in 5 of trans people had experienced transphobic sexual assault or the threat of sexual assault.

7.6. Further, that trans people face in the UK often on a daily basis discrimination and harassment, as shown by Stonewall’s LGBT in Britain: Trans Report (2018):

7.6.1. 40 per cent of binary trans people, and 52 per cent of non-binary people adjust the way they dress because they fear discrimination or harassment. 41 per cent of trans people said that healthcare staff lacked understanding of specific trans health needs when accessing general healthcare services in the year prior to the report.

7.6.2. 29 per cent of trans people who accessed social services in the year prior to the report experienced discrimination.

7.7. It’s an unfortunate and sad reality that we should reasonably expect a population of trans people would choose to hide their trans identity to avoid being harassed and discriminated against, they would also face difficulties in providing evidence often when institutions and organisations that they would access such documentation from would not be supportive of their identity.

7.8. Furthermore, due to what has been termed the ‘hostile environment’ in the UK for immigrants and asylum seekers who come to the UK, it is again reasonable to understand that for those who are both trans and asylum seekers, the UK is not a place where they are encouraged to be themselves. Making it extremely hard for these individuals to gather any evidence.

20 September 2021


Prepared 24th September 2021