The Home Secretary Suella Braverman's controversial speech in Washington last week concerned the language around granting refugee status simply based on discrimination, and suggested that being a woman, or gay, 'shouldn't necessarily qualify you for asylum protection in the UK'.
Dr Chelvan - 33 Bedford Row's Head of Immigration and Public Law - who has practiced Asylum Law since 2001, with a national and international reputation on protection and human rights claims based on sexual or gender identity and expression analyses the Home Secretary's position in his (26 September) interview for Christian Fraser’s Connect program on BBC World News:
Dr Chelvan is also interviewed on this topic with Vanessa Feltz for Talk TV (26 September) which can be viewed here.
Attitude Magazine on 26 September, in an interview with Dr Chelvan in which he refuted the Home Secretary's claims that people could claim asylum based purely on being gay and facing discrimination in their country of origin:
“Discrimination must be a sufficiently serious violation of their basic human rights (2009 OO (Sudan) and JM (Uganda)),” he said pointing to the case of 2019 Attitude Pride Award winner, Kenneth Macharia, who “was afforded refugee protection on the basis of ‘a real risk of discrimination’ where the discriminatory laws lead to ‘a real risk of actual physical and sexual harm’.” (Attitude Magazine Interview)
Further to the above, ITV News' Deputy Political Editor Anushka Asthana also quotes in her 1 October 2023 comment piece Dr Chelvan explaining, "I am not aware of a single reported case where refugee status in the UK is granted solely on the basis of being a woman, or gay, or being solely discriminated against [...] The risk must be sufficiently serious by its intensity or duration to constitute a serious violation of human rights." (ITV article)
Southampton Law School, where Dr Chelvan is an Adjunct Professor, have shared Chelvan's inaugural lecture for the launch of their Centre for International Law and Globalisation (27 April 2023). This lecture provides a more of the detailed legal analysis on LGBTQ+ Refugee Status Determination and can be viewed here.
Dr Chelvan has also provided some further written legal analysis on this topic:
Having practiced in the field of asylum law since 2001, specialising in LGBTQ+ refugee claims, I was deeply disappointed by the lack of legal accuracy, but deeply relived at how the Home Secretary’s speech had no real bearing on how the UK approached refugee claims. I am not aware of a single reported case where refugee status in the UK is granted solely on the basis of being a woman, or gay, or being solely discriminated against.
Persecution has a high threshold, and requires the refugee applicant to prove there is a real risk of serious harm by either the state (death penalty, torture), or by non-state agents of persecution (family (honour killing), neighbours (corrective rape), community (mob rule)), where there is a lack of effective state protection, and no place where they can reasonably locate to within their country of origin or habitual residence (the internal relocation alternative). This real risk must be sufficiently serious by its intensity or duration to constitute a serious violation of human rights. We know from our own world history, discrimination is the precursor to persecution. For women and gay people, to come within one of only five Convention reasons, the Particular Social Group, for a refugee claim to start to be established, it is not only their innate or immutable characteristic, but additionally a need to have evidence they are discriminated against by surrounding society for their difference, independent of the persecution The Courts have been clear, discrimination by itself is not enough to establish a refugee claim. There must be an accumulation of various measures, and “a sufficiently serious violation” of rights to amount to persecution (2009, OO (Sudan [19-21])) - applying the law, no-one can succeed in a refugee claim in the UK, solely because they will suffer discrimination on return. Our Home Secretary should have been fully aware of these definitions, especially as they were recently transcribed by Parliament into primary legislation last year, codifying case-law (bar the increased civil standard of proof threshold) previously cited within the secondary legilsation immigration rules (sections 31 to 35 of the Nationality and Borders Act 2022, came into force for new asylum claims from 28 June 2022).
The 1951 Refugee Convention and 1967 Protocol, ratified by the UK respectively on 11 March 1954, and 4 September 1968, is a living instrument. It has been applied by our Courts to correct historical wrongs. It took the UK until 1999 for the House of Lords in the case of Shah and Islam, to include ((falsely accused) adulterous) women as a distinct group for refugee protection. In the same year, the Court of Appeal in the case of Jain, made clear gay men who were subject to criminal prosecution, noting two-thirds of the Commonwealth continue to apply laws, or those closely aligned to colonial laws we exported, were to be afforded the the same protection. The High Contracting Parties to the original 1951 Convention included countries who did not believe gay people suffered persecution, and some even denied they existed. As Lord Hope highlighted in the 2010 UK Supreme Court current binding guidance case for all asylum claims, HJ (Iran) ad HT (Cameroon) [2], this was “a manifest nonsense”. It is this 2010 judgment of the Supreme Court that makes clear mere membership of a Convention reason group, ie being a woman, or a gay man (or perceived to be), is the first limb of four possible limb guidance required to be granted refugee protection in the UK (paragraph 82, as per Lord Rodger). The standard of proof to establish this first limb, with the coming into force of section 32 of the Nationality and Borders Act 2022, is the civil standard if proof (51% and above). This also applies to subjective fear, whcih is releavent to the third and fourth limbs of the guidance. The most important second limb is the need to establish to the asylum standard ( reasonable degree of likelihood/real risk of serious harm) the well-founded fear of persecution to those who are open, ie openly gay in the country of origin. The third and fourth limbs address conduct on return, retaining in a modified form the refusal of a refugee claim if an individual (voluntarily) chooses discretion on return for only reasons of personal choice or social pressure. Our Supreme Court in 2010 corrected the historical incorrect interpretation of a 2003 Australian case on discretion (S/395), introduced by the Home Office through the Courts in 2004 (Z) under the previous Labour government, enabling return of refugee applicants on the basis voluntary discretion would be ‘reasonably tolerable’, where it was accepted if they were open they would suffer a real risk of torture, or for example the death penalty in Iran. Before the striking-down of this “reasonably tolerable discretion” test, the evidence showed in one 2010 report, 98-99% of Home Office decisions were refused, compared to the overall 73% for other claims (UKLGIG ‘Failing the Grade’).
Following the 2010 UK Supreme Court judgment, the greatest hurdle for LGBTQ+ refugee applicants if proving their sexual, or gender identity and expression. Nevertheless, the Home Secretary’s observations of many applicants pretending to be gay, firstly ignores the 24 August 2023 Home Office’s own statistics of just 2% of all asylum claims made in 2022 (1334 claims) were based on sexual-orientation/identity, and secondly, and most importantly, 72% of all 2022 decisions were positively granted refugee status, or some form of leave to remain by the Home Office (739 grants out of 1024 decisions). Approximately 50% of negative decisions that are appealed to our Tribunals and Courts, are overturned on appeal (MOJ Statistics, 27 September 2023). This ‘pretending gay’ approach also ignores the fact that even pretending to be gay, even within some of our own sub-sections of diaspora communities, can lead at best to social isolation in the UK, at worst, significant issues, including risk to close family back home. The 2022 legislation increased the threshold for ‘proving gay’ to the civil standard, and this is now the most significant hurdle for lesbian, gay and bisexual applicants to prove, and the Home Office to apply the correct legal approach. It is vital the public are aware the majority of claims, contrary to what was the underlying message by the Home Secretary, are accepted to be genuine, and lead to some form of sanctuary in the UK. We continue as a country to correct historical wrongs, and this now include speeches and in interviews, made by our own Home Secretary.
Dr S Chelvan, Barrister, Head of Immigration and Public Law, 33 Bedford Row Chambers and Adjunct Professor, Southampton Law School.