In this guest blog, writer and solicitor Tawseef Khan describes some of the barriers faced by LGBTQ+ people in the asylum system – and the ways in which hostile policies have slowed down progress.
My earliest memories of childhood are of my father practising immigration law from our living room, which doubled-up as his office. Sometimes his client was a young man fleeing political persecution from Pakistan, who wanted my father to accompany him to his interview with the Home Office. Other times, it was a Romani family that had been refused asylum despite the racism they had experienced in Eastern Europe. They were desperate and jittery, and my father promised to take care of them. Afterwards, when they had gone, I would sit at my father’s desk and re-enact his meetings.
In those days, hardly anybody claimed asylum on the basis of their sexuality. The right didn’t exist. But in 1999, Britain recognised the possibility for queer people to claim and be granted asylum here. As a result, my father started representing more and more LGBTQ+ cases.
By then, he had his own office and in my free time, I volunteered there too. Working alongside him exposed me to how uniquely complicated LGBTQ+ asylum cases were. It’s generally straightforward to prove that you follow a certain religion or belong to a political party. But how does a person prove their sexuality? Especially if you’re coming from a country where you’ve had to hide your sexuality to be safe, and you’ve had no chance to think about what your sexuality means to you, how do you go about explaining yourself to the Home Office in a coherent way?
Tawseef Khan is an immigration solicitor and writer.
It was this complexity that made me want to explore LGBTQ+ asylum claims in a PhD. I found that the Home Office’s decisions were all over the place. Sometimes, if a person presented and expressed their identity in a stereotypically ‘Western’ way, they were granted asylum. But if a person didn’t go to gay bars, read LGBTQ+ magazines or know about Oscar Wilde, the Home Office refused to believe they were who they said they were.
In other cases, the Home Office would say it was okay for a person to return to a country where there were old, often dormant, laws criminalising their sexuality. It didn’t think about the climate of intolerance that persisted, partly as a result of those laws. Or they would accept a claimant’s sexuality, but insist they could avoid persecution at home by acting ‘discreetly’.
In 2010, the Supreme Court’s landmark decision HJ (Iran) and HT (Cameroon) came along and improved things, if only a little. The Court said that a person couldn’t be forced into suppressing their identity in order to stay safe. But the test it proposed for examining LGBTQ+ claims was still problematic; it directed decision-makers to examine a claimant’s behaviour rather than their identity. Would a claimant be likely to conceal their identity in their country of origin? If so, what would the reasons for this be? These questions are a distraction from considering the actual danger a person is likely to face.
The hostile environment facing migrants in the UK is a powerful inhibitor of progress.
The myth of progress means we often believe that, with the right amount of education and persistence, the ignorance of LGBTQ+ asylum decision-making will be a thing of the past. And thanks to the work of NGOs and the improved guidance available to Home Office staff, things are definitely better for LGBT+ refugees than they were. But the hostile environment facing migrants in the UK is a powerful inhibitor of progress. For as long as it remains a cornerstone of government policy, Home Office staff will continue to be pressured to refuse as many claims as possible.
This means that LGBTQ+ claimants are refused protection for the same spurious reasons we hoped to have eliminated by now, either because they don’t fit stereotypical ideas of LGBTQ+ identity, or their countries of origin are incorrectly deemed safe, or because it is asserted that they can and maybe even should change their behaviour to avoid being persecuted. Until the system is overhauled, that reality is unlikely to change.
Tawseef Khan is an immigration solicitor and holds a doctoral degree from the University of Liverpool, where he examined the fairness of the British asylum system. His debut novel Determination is out now in bookshops & online.
