It is estimated that worldwide more than 175 million people, some three times the population of the UK, are at risk of persecution because of their sexual orientation. Seventy-six countries criminalise consensual same sex relations, among them 54 countries of the Commonwealth.
Hatred against lesbian, gay, bisexual, transgender and intersex (LGBTI) people is deeply entrenched in the culture of these countries, and their elected governments reflect the prejudice of the masses. They know that persecuting LGBTI people is contrary to international law, and leads to friction with donor nations.
In the case of Gambia, when EU representatives were due to arrive in January for a routine discussion on human rights issues including the treatment of LGBTI people, President Jammeh ranted on TV that it was ‘an insult to our sovereignty’ that the EU should want to talk about the ‘children of Satan otherwise referred to as homosexuals’.
In Uganda, the offices of Sexual Minorities Uganda (SMUG), the umbrella organisation for LGBTI people, were broken into in December and equipment was stolen and damaged. Last June an LGBTI workshop in Kampala was forcibly closed down by the police. These and similar events occur against the background of the Anti-Homosexuality Bill under which the death penalty is prescribed for gay sex.
Many other examples could be cited of the violent prejudice against LGBTI people, often fuelled in Africa by American evangelicals and in the Islamic world by clerics of both Sunni and Shi’a sects.
It is obvious that the victims of persecution arising from the prejudice and hatred that is endemic in these societies may flee their countries, looking for sanctuary abroad. Some manage to reach the UK, where since a court ruling of 1999, a person’s sexual orientation was added to the definition of ‘social group’ to bring gays and lesbians within the scope of the Refugee Convention.
In the Coalition Government’s Equalities Manifesto, we undertook to stop deporting asylum seekers who had to leave their country because their sexual orientation put them at risk of imprisonment, torture or execution.
On the whole, the information provided by the Border Agency to officials deciding LGBTI asylum claims has improved over the years, though it is updated too infrequently.
But the existence of a general state of persecution of a social group, and the applicant’s membership of the group isn’t enough to settle a claim. S/he has to demonstrate that there are grounds for an individual fear of persecution by an agent of the state.
This could be that s/he was unwilling to be open about their gender identity solely because of that fear, according to the guidelines issued by the Supreme Court in 2010. But if the person has no independent evidence of his persecution, there is the risk that the application may be rejected simply because s/he is disbelieved, or that the story doesn’t amount to persecution.
Worse, if the applicant comes from one of the countries perversely certified as safe for men by the Government, even though gays are viciously persecuted there, his claim may be certified as ‘clearly unfounded’ by the Borders Agency, depriving him of a right of appeal. Lesbians still have a right of appeal.
It would be great to see a judicial review application by a gay man against removal, after his claim was certified, on grounds of gender discrimination!
We have come some distance on gay asylum in the last 15 years, but the Borders Agency still gets far too many cases wrong, as we can see from the number of successful appeals. With huge numbers of LGBTI people all over the world at risk, and our own courts still developing the criteria for proving gender identity claims, there is still a long way to go.
* Eric Lubbock, Lord Avebury, is a working peer, and Vice-Chair, Parliamentary Human Rights Group. He blogs here.