A leading asylum barrister has criticised Shadow Immigration Minister Chris Bryant’s previous comments in defence of the Home Office from claims LGBT asylum seekers have been deported by officials in recent years.
Speaking to PinkNews.co.uk, as part of an interview on LGBT asylum policy, S Chelvan, from No5 Chambers, called on the Labour MP to improve his knowledge on the issue, and suggested he could start by looking at the failings of the last Labour Government.
In July, Mr Bryant told PinkNews.co.uk that he was not aware of any claims of LGBT asylum seekers being deported back to countries where they face persecution since the Home Office changed its guidelines in 2010.
“My experience thus far is that I have not known a decision [to] go in the wrong direction in the end.”
Mr Bryant said the challenges of ensuring that correct decisions were made in relation to LGBT asylum cases would always prove to be a “messy process” for the Home Office.
The MP said: “I think it is quite difficult to provide a hard and fast rule which says anybody who says that they are lesbian and gay and is from a country where there is oppression for lesbians and gays should automatically be given the right because it is very difficult to prove – and verifiable facts about something that is happening in another country are difficult to come by.”
He added: “I don’t think you will ever… it will always be a messy process and there will always be cases which are very you know six of one and half a dozen of the other.”
However, Mr Bryant’s view has received short shrift from S Chelvan.
“The problem is when you look at that sort of approach you negate the real world effect on the one individual who is sent back to their country of origin where there is a real risk that they will be tortured, raped and killed because they are gay or lesbian,” the lawyer said in response to Mr Bryant’s comments.
“I think as a Labour Shadow Minister for Immigration he should remember between 2004 and 2010 it was the Labour Government who were sending back lesbian, gay and trans asylum seekers to countries of origin where they accepted that the individual was LGBTI – where the country evidence did show persecution of lesbian and gay people – but because of the legal test that had developed under [Labour’s] own governmental policies and submissions through the Court – these individuals were told to be ‘voluntarily discreet’ in Pakistan and that would be reasonably tolerable.”
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.
“Even since the UK Supreme Court case of HJ (Iran), there are a lot of lawyers, decision makers and judges who are not applying the guidance properly,” Chelvan said before adding: “The majority of my practice is picking up cases where individuals have been through the system, not one, or twice but three times.
“They are being let down by the lack of specialist legal representation, or by Home Office presenting officers who will ask questions in tribunals such as ‘what makes you gay?’, or by judges who will say, ‘I am not helped by the lack of evidence including medical evidence to show penetrative sex of your client’ – now I don’t see how Chris Bryant has been very well briefed in saying that these individuals are not being failed by the system even after the Supreme Court case of 2010.”
Indicating how the Home Office still has a long way to go when it comes to ensuring that the correct guidelines are being implemented, Chelvan said: “I have only seen one Home Office refusal letter, since the guidance was published in October 2010, which applies the Home Office asylum policy instruction on sexual orientation issues – only one out of hundreds I have seen since 2010.”
“So I think a lot more work needs to be done in relation to humanising the system, training case owners and presenting officers in not fixating on ‘what type of sex did you have?’ ‘What time was it?’ ‘What did he or she do to each other?’ – [it] still unfortunately does occur.”
The lawyer concludes by saying: “I have read some interview records which are more akin to some sort of pornographic movie script, rather than investigating humanely the asylum claim.”