Is it possible to qualify as a refugee on the grounds of my sexual orientation?

What is a 'refugee'? What is 'asylum'?

If you are in the UK and fear returning to your home country because of persecution which you would face there, you may qualify as a 'refugee'. If you are granted refugee status in the UK, you will be granted permission to remain in the UK for five years. If you still need the UK's protection after five years, you will then be granted permanent stay in the UK.

In order to qualify as a refugee, you would need to convince the authorities that you meet the definition of 'refugee' set out in the UN Convention Relating to the Status of Refugees. Under that definition, you have to demonstrate that you are a person who has a "well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion" in your country of nationality or your former country of residence.

The protection given to a recognised refugee is called 'asylum'. Asylum means that the UK agrees not to send you back to a country where you face such persecution.

Is it possible to qualify as a refugee on the grounds of persecution I will face because of my sexual orientation?

For a long time, the Home Office resisted the idea that gay men and lesbians who faced persecution in their home country because of their sexual orientation should be recognised as refugees. Happily, in a decision taken in March 1999, the House of Lords decided that gay men and lesbians who would face persecution in their home country constitute a 'social group' from which claims for asylum should be allowed. The Home Office now accepts that if a person does have a well founded fear of persecution because they are gay or lesbian then they can qualify for asylum.

The decision of the House of Lords can also be interpreted to mean that individuals who are HIV positive and face persecution because of their health status may also be recognised as refugees.

What do I need to show to qualify as a refugee on the grounds of my sexual orientation?

You need to show that there is a reasonable degree of likelihood that if you were returned to your home country you would face serious harm because you are a gay man or lesbian. Serious harm must come from either the government authorities or other sections of the population from which the government is either unable or unwilling to protect you.

Serious harm would include the possibility of extra-judicial execution, physical violence, torture and denial of liberty. It may also include very serious discrimination. Prosecution for consensual same sex acts may of itself amount to persecution.

You will need to make clear what is the harm that you fear and you will need to show that your fear is justified. This means proving your case as best as possible with evidence. The immigration courts have given guidance in certain cases as to whether gay men or lesbians are at risk of persecution in particular countries. Whether you are at risk will change as circumstances change in your home country.

In deciding whether or not to apply for asylum, you should take into account the fact that the vast majority of applications for asylum are refused. Cases are commonly refused either because the applicant is not believed or because the Home Office thinks the fear is not well founded (or what is feared is not serious enough to amount to persecution). This is not an easy route to remain in the UK and an application for asylum should not be made unless you have a genuine fear of persecution.

How do I make an application for asylum?

If you are already in the UK, you can make the application to the Home Office by attending an Asylum Screening Unit. These are situated in various parts of the UK. The main one is in Croydon. It is very important that, before doing so, you contact a lawyer specialising in asylum law to assist you since the asylum process may move very quickly following the application. You may be interviewed in depth about your fear of persecution soon after you apply or given a questionnaire which needs to be filled out very quickly. You may be detained and sent to an immigration removal centre where your application will be fast-tracked - this means it will be decided in a matter of days. Prior advice is therefore essential.

If you are outside the UK, you can apply for asylum on arrival at any port.

What information do I need to produce to apply successfully for asylum?

You will be required to give a detailed statement about why you fear being persecuted. You will need to give details about any persecution that you have suffered in the past. If you have not suffered persecution in the past, you must explain why you believe that you will be persecuted in the future. You should be in a position to provide objective information from human rights organisations or the press or other sources showing that the kind of persecution you describe does in fact occur in your home country. If you have a solicitor, they can help you access this information.

The Home Office has access to information about what is happening in all countries of the world. They will form their own view as to whether your fear is well founded. It will, however, help your case if you can submit evidence to show that your fear of persecution is real and that other gay men and lesbians in your position have been persecuted.

Should I consult a lawyer if I am applying for asylum?

Yes, in order to ensure that your case is properly presented, it is essential to consult a lawyer who specialises in asylum law and who, preferably, has represented gay or lesbian asylum seekers before. If at all possible, you should consult the lawyer before applying for political asylum. Asylum law is a complex area of law and recent legislation means that advice right from the start of the process is essential.

What is my status in the United Kingdomwhile my application is pending?

An answer to this question will depend on your status at the time of applying and your lawyer will be in the best position to advise you. You will not be removed from the UK until your asylum appeal is determined and any right to further appeal has been exhausted.

Will I Receive Accommodation or Financial Support?

If they are destitute, applicants may be entitled to some assistance with respect to food and housing from the National Asylum Support Service. Applicants are usually not entitled either to standard welfare benefits or to take employment.

What happens if my application is refused?

You have the right of appeal to an Immigration Judge, who is a judge operating independently of the Home Office. Many successful cases are resolved only at this point. There will normally be a hearing at which you would give evidence. If the Immigration Judge dismisses your appeal you can apply to the High Court for a review of the decision and if an error of law was made by the Judge, the High Court may order that your appeal be reconsidered by a different Judge.

However, you may not get a right to appeal. There are now ‘designated states’ which are presumed safe by the Home Office and asylum applicants from those states may have their claim certified as ‘clearly unfounded.’ If a claim is certified in this manner, there is no right of appeal from within the United Kingdom against a refusal of asylum. This underlines the need for expert advice at an early stage.

Sometimes, even if the Home Office decides to refuse an application for refugee status, a decision to grant the individual 'humanitarian’ or ‘discretionary’ leave to remain in the United Kingdom may be made. This is rare but may be appropriate if you are in a relationship with a British Citizen (or someone with right of abode in the UK) and there are exceptional circumstances why you could not go back to your own country to apply for an unmarried or proposed civil partner visa.

What happens if my application is successful?

You will be granted permission to stay for five years. You will be entitled to apply for a UN refugee travel document and you will also be entitled to work, study and claim benefits in the UK in the same way as a UK citizen. You will also be entitled to apply in due course for British nationality if you are granted permanent stay at the end of the five years. This will be granted only if you are still at risk of persecution.

Publications & Links

UKLGIG submission to Home Affairs Committee - December 2005

"How to get good asylum advice" - A very informative guide from Advicenow. Important and recommended reading for asylum seekers.

A Navigation Guide: Lesbian, Gay, Bisexual and Transgender (LGBT) Refugees and Asylum Seekers - written by Anisa de Jong, former asylum co-ordinator of the Safra Project, a resource project for Muslim LBT women in the UK, and a freelance researcher on issues relating to LGBT rights, gender and refugees.

Details of entitlement to NHS treatment - January 2005

Asylum Policy Instructions - Home Office policy instructions detail. Including at vi. "Assessing the claim" para 8.7 "membership of a particular social group" (the outcome of Shah v. Islam in the House of Lords in 1999).

ICAR - The information centre about asylum and refugees in the UK

Disclaimer

UK Lesbian & Gay Immigration Group has not translated this information and is not responsible for its updating. Therefore UK Lesbian & Gay Immigration Group does not warrant the accuracy of the information contained in these web pages and disclaims any liability to any third party anywhere in the world for any injury, damage, direct or indirect loss, consequential or economic loss or any other loss suffered as a result of the use or reliance upon the information contained in these web pages to the maximum extent permitted by law.

Up-to-date information on immigration issues can be found on our website at www.uklgig.org.uk

This disclaimer shall be interpreted in accordance with English law.

Sebastian Rocca, Executive Director