How do you prove you’re gay? This is a problem many gay asylum seekers are facing in the UK, experts have warned, with some desperate asylum seekers even resorting to filming themselves having sex with a same-sex partner so as to escape being returned to their home countries where they could be imprisoned or even be put to death.
In a lecture to be delivered this week at the Law Society, S Chelvan, a barrister who specialises in asylum cases and works with the UK Border Agency (UKBA), will detail the extraordinary methods to which individuals are resorting – including filming themselves having sex – to justify requests for refuge.
“I know of at least two cases in the last six weeks where I have had asylum seekers filming themselves to demonstrate they are gay. Now it’s all about proving whether you are gay or lesbian.”
A Ugandan woman, who was eventually given temporary leave to remain in the UK but wished to remain anonymous, told the Guardian: “The UKBA officials wanted me to prove that I was lesbian but they wouldn’t tell me how I could.”
The UK, as a result of a 2010 court judgement, recently altered its guidelines on how it assess LGBT asylum claims, switching emphasis so that LGBT applicants were no longer denied on grounds that they could simply be “more discrete” about their identities. However, the new emphasis on proving LGBT identity is evidently causing some problems because what constitutes a genuine claim is rather nebulous.
This also fails in quite a startling way to address the nuance of the asylum problem LGBT applicants face. In the case of the Ugandan woman mentioned above, for instance, it is unlikely the woman has ever been publicly part of any activities that are definable as “gay,” such as Pride parades and the like. It is also highly unlikely that the asylum seeker will have personal belongings that might incriminate them given a climate like Uganda’s would mean that were, for example, pictures of the applicant with a same-sex partner to be found, they would be used to start criminal proceedings.
Therefore relying on this kind of evidence to define the applicant as LGB or T is problematic and has led some asylum groups to question whether the UK’s broad LGBT rights protections and, indeed, its acceptance of LGBTs is being denied asylum seekers in order to keep asylum approvals artificially low.
The issue of asylum seekers not being “gay enough” to sway judges certainly isn’t just a problem unique to the UK, however. The issue of how to differentiate between a genuine asylum claim and one made opportunistically has taxed many a judge across Europe and beyond.
In fact, a Nigerian man applying for asylum in Canada won a review of his denied application last year because it was found that the judge who had originally assessed his claims had relied solely on gay stereotypes in order to assess the man’s application and had, therein, denied it on that basis alone, ignoring vital testimony and recent history that seemed to establish beyond reasonable doubt the man’s links to the LGBT community.
There has in recent weeks, however, been some more positive news on this front. A Guatemalan woman recently became the first openly transgender person to be granted asylum in Denmark after initially being denied the right to stay in the country. The woman, Fernanda Milan, had been an outspoken transgender rights activist and, on appeal, her legal team was able to show a substantial risk to her life should she be returned to her home country.
Needless to say, that an LGBT person’s life must actually be threatened in order for them to have their asylum claim taken seriously is, given the level of persecution that LGBTs still face in many countries, worrying in the extreme.
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