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Home Office bans caseworkers from asking LGBT asylum seekers for ‘proof’ of gay sex

Nick Duffy August 8, 2016

The Home Office has issued guidance banning caseworkers from asking LGBT asylum seekers for explicit details about their sex lives – but they can still be quizzed about local gay bars.

In 2014, the UK’s then-Home Secretary Theresa May carried out a review of the way LGBT asylum seekers are treated – but despite reforms, there has been continued criticism of inappropriate and discriminatory treatment within the asylum system.

One lesbian asylum seeker was told she couldn’t be gay because she has children, while a bisexual asylum seeker was compelled to show caseworkers explicit pictures of himself having gay sex to ‘prove’ his sexuality.

Under new Home Secretary Amber Rudd, the Home Office this month issued a new Asylum Policy Instruction on Sexual Orientation in asylum claims, which serves as guidance for caseworkers.

It warns that under EU law, caseworkers cannot rely on stereotypes about gay people, explicit sex details or photographic ‘evidence’ to ascertain the sexuality of people seeking asylum.

It says: “Questions based solely on stereotypical behaviour cannot be relied on in order to assess evidence put forward by a claimant: any assessment made solely on the basis of stereotyped notions associated with homosexuals will not satisfy the requirements of EU law, in that it does not allow those authorities to take account of the individual situation and personal circumstances of the claimant for asylum concerned.

“Detailed questioning in regard to sexual practices must not be asked: any such questions are contrary to the fundamental rights guaranteed by the EU Charter of Fundamental Rights and, in particular, to the right to respect for private and family life.

“Sexually explicit evidence, even if it is provided voluntarily by the claimant, must not in any circumstances be accepted: such evidence does not necessarily have probative value and would of its nature, infringe human dignity, the respect of which is guaranteed by the EU Charter of Fundamental Rights: the effect of authorising or accepting such types of evidence would be to incite other claimants to offer the same and would lead, in effect, to requiring claimants to provide such evidence.”

In place of the invasive questioning, the new guidance states: “The focus of the interview must be on allowing the claimant to provide a narrative that supports their claimed sexual orientation. It should never be an enquiry into any explicit sexual activity.

“In order to qualify for asylum, a claimant must have a well-founded fear of persecution on the basis of their sexual orientation: the required threshold of which is to a ’reasonable degree of likelihood’. If an individual is claiming to be at risk on the grounds of sexual orientation, it follows that they will need to establish their case to a reasonable degree of likelihood that they are or are perceived to be of the sexual orientation in question.”

Although questions about gay sex are banned, caseworkers will still be allowed to ‘test’ people’s sexuality by asking about their links with LGBT groups and local gay bars.

It instructs: “Any perceived lack of contact with the LGB community is a relevant area of investigation to explore… [although] ignorance of commonly known meeting places and activities for LGB groups is not necessarily indicative of claimant’s lack of credibility.”

“To enable claimants to present their case, it may be necessary to ask questions about where claimants have socialised or whether, for example, they have been members of clubs, groups or organisations, including through social media.

“Where a claimant has indicated that they have interacted with the LGB community, questions enabling the claimant to detail their knowledge and/or interactions with LGB contacts, groups and activities.”

Incredibly, the guidance partly affirms the suggestion that having kids means that someone might not be LGBT.

It states: “Evidence of existing or former opposite-sex relationships, or parenthood (both of which may need to be explored at interview) may be considered relevant in a credibility assessment, but must not be automatically taken as evidence which indicates a lack of credibility and must not lead to an automatic rejection.”

It is also up to asylum seekers to ‘prove’ that they face persecution because of their sexuality – and anti-gay laws alone are not enough to secure asylum.

The guidance states: “In order to qualify for asylum, a claimant must have a well-founded fear of persecution on the basis of their sexual orientation: the required threshold of which is to a ’reasonable degree of likelihood’.

“If an individual is claiming to be at risk on the grounds of sexual orientation, it follows that they will need to establish their case to a reasonable degree of likelihood that they are or are perceived to be of the sexual orientation in question.”

 

S Chelvan of No 5 Chambers branded the guidance “unfit for purpose” in an analysis for Free Movement, adding that it seemingly ignores precedent from rulings that ban ‘voluntary discretion tests’.

More: Amber Rudd, asylum, Gay, home secretary

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