S Chelvan, one of the country’s leading barristers in their field talks to PinkNews.co.uk on how those fleeing homophobic and transphobic persecution abroad are still being failed by the UK when it comes to providing asylum.
The biggest thing Chelvan has learnt from working in this area over the years is summed up in two phrases “education, education, education” and “litigation, litigation, litigation” – with a bit of training thrown in.
“There is a lot of ignorance around not only within the Home Office and the government but also within the tribunal system and court system – especially when I started in relation to what it means to be a gay asylum seeker, and from that the most basic thing of what it means to be gay.
“The over concentration and fixation that it’s all about sex in the bedroom [but] now to a stage where decision makers, lawyers and the courts are engaging with the fact that the focus of persecution is not in the bedroom but in the outside world – outside the home – and the main issue is not whether someone is lesbian, gay, bisexual or trans, but the fact that they do not confirm to a stereotype of what it means to be straight in the eye of the persecutor – so what that means is that they are not ‘straight enough’.”
Chelvan gives the example of a woman in Jamaica, who maybe straight, but is still subjected to persecution and harassment for refusing to accept male advances. The barrister believes there is a need to improve understanding of what it means to fear persecution because of a person’s sexual gender identity. Through his work on encouraging best practice for asylum case workers, Chelvan has made a profound difference to the lives of many through his Difference, Stigma, Shame, Harm (DSSH) guidelines. It’s designed to ensure officials ask claimants the right questions.
Detailing the first category, Difference, Chelvan says: “The first question I ask all of my clients is, ‘when did you realise you were different?’ And that usually sparks recognition of a date years before any sexual attraction or sexual conduct where they realise that they didn’t fit in with other girls or other boys around them. So for example you have the experience of a young boy who unlike the other boys wasn’t interested in talking about girls.
“He liked to hang around with other girls and play games which weren’t stereotypically male orientated such as rugby or football – of course that doesn’t mean to say gay men do not play those sports – but it’s about gender non conformity.”
Chelvan moves on to discussing the second category, Stigma.
“Then what happens is the recognition that this difference is not accepted by society and that turns into stigma, because the Mullah at your mosque or your church leader or community leader says, ‘these people who have sex with each other are abnormal, wrong and need to be punished’.”
The third category, Shame, is an automatic response to people suggesting “what you are is wrong”. Chelvan adds: “Difference, stigma and shame comes into the common narratives of the majority – I’m not saying all – but the majority of LGBTI people throughout the world.”
The lawyer asks: “So what makes the refugee? It’s harm: the fear of harm because of their gender or sexual identity, because of the perception that they do not confirm.”
The pair had previously been refused asylum on the grounds they could hide their sexuality.
However, on 7 July 2010, the Supreme Court ruled unanimously that the men could not be expected to conceal their sexuality in this way, in effect quashing a Home Office policy which stated the men should be “discreet” about their sexuality.
Despite the ruling, the legal situation for many LGBT asylum seekers remains far from satisfactory.
Human rights groups, MPs and lawyers have frequently documented alleged cases of the Home Office deporting LGBT asylum seekers back to countries such as Uganda and Cameroon where they face persecution.
“What I have tried to develop in 2011 in another case – and this is the reality of the situation – it’s not about keeping quiet – it’s not about pretending you are not gay; it’s about having to tell a lie,” Chelvan warns. “What really happens in the majority of these countries is that your nosey neighbour will suddenly ask, ‘why don’t you have a girlfriend?’ ‘Why don’t you have any women coming around apart from these certain women on a Friday night? Why aren’t you getting married?’
“And it’s because you are not conforming to that hetronormative stereotype: you are not marrying at a certain age, you are not having children, you are not doing everything that is expected of you in your culture – even if you are discreet and don’t go shouting about [your sexuality] – you are going to be identified.”
Of the difficulties in maintaining deception, Chelvan says: “That’s the reality of LGBT people’s lives in these countries; not that they have to be ‘not gay’ – but they have to be uber straight to evade detection, and that’s not just for one day or one week, it’s for the rest of their lives.”
Changing attitudes is an uphill struggle and the lawyer believes at its worst the asylum system can appear indifferent to the plight of those fleeing homophobic and transphobic persecution.
The government has never released statistics from immigration tribunals on how many people each year apply for asylum claiming that they face persecution because of their sexuality.
But it is believed by support groups that the vast majority of such claims are rejected first time around.
Another was asked: “Why have you not attended a Pride march?”
Chelvan says: “I read Home Office refusal letters from a Jamaican client of mine many years ago where they said that it was ‘his’ fault that the mob came to his home and burnt his home down and tried to kill him.” Mentioning how the man decided to wear a dress and run around after a few drinks and be very jolly, Chelvan says the officials stated: “if you hadn’t flaunted your sexuality [the mob] wouldn’t have harmed you.”
Criticising this viewpoint the barrister stresses: “We’ve all got an alienable right to be who we are, to be able to express ourselves as we want to without a fear of harm. As long as we are not harming other people by being violent and assaulting them, then we’ve all got these rights to be protected. It’s not about ‘why are you being out?’ it’s about ‘why do you fear harm?’