LGBTQ refugees and asylum seekers and the hostile legislative environment in the UK

                                     

Author: Dr. Sacha Hasan

Abstract:

This review examines the prominent threats facing LGBTQ refugees and asylum seekers being stirred by the combination of the increasing hostility of UK immigration laws against refugees and asylum seekers on the one hand, and the uncertainty of LGBTQ rights to protection due to potential change in the UK commitment to the EU human rights law after Brexit on the other. This raises an urgency to recognise these groups’ intersectional vulnerability and needs, and their right to protection against state and non-state prosecutions. This calls for an immediate action to bring legislative change through increasing awareness, building capacity, and ensuring representation in the governmental and civic forums working with LGBTQ refugees and asylum seekers.

 Key words:

Refugee, asylum seeker, LGBTQ, human right, legislation, Brexit, UK, EU.

 

Review:

LGBTQ is one of the 9 protected characteristics under the UK’s Equality Act 2010, which is considered a significant improvement from the Gender recognition Act 2004, being more explicit and inclusive to wider SOGI (Sexual Orientation and Gender Identity) community. However, the UK departure from the EU is posing a prominent threat and uncertainty to LGBTQ rights in the UK, due to the fact that the EU Law is the only available justification to include this community in its equality act (Help Refugees, 2019).

 

On the other hand, the 1951 Refugee Convention recognises a refugee as a person who is unable or unwilling to return to his or her country of origin because he or she will be persecuted on the basis of one of five grounds: race, nationality, religion, political opinion, or membership of a particular social group.  In the UK, sexual orientation, gender identity, and/or sex characteristics is recognised as being a part of a particular social group in its asylum laws, and therefore, those identified as LGBTQ are entitled to seek asylum (Home Office, 2021).

 

Nonetheless, this is routinely exploited due to the ‘culture of disbelief’ and an ‘impossible burden of proof’ as said by Moira Dustin, who led the UK part of the SOGICA (Sexual Orientation and Gender Identity Claims of Asylum) four-year project funded by the European Research Council (ERC) (University of Sussex, 2020). This sits in a broader picture of The UK Home Office hostile environment policy announced in 2012, being a part of a strategy of reducing UK immigration figures.

 

Combining these facts raises the fear that future post-Brexit immigration policy may subject asylum seekers to further scrutiny, while possibly disregarding equality and non-discrimination rights for LGBTQ, causing LGBTQ refugees to have a two-dimensional vulnerability: immigration and non-state prosecution status, and LGBTQ+ identity. This makes it essential to prioritise LGBTQ refugees, especially given the relatively low number of countries that are both willing and able to protect LGBTQ persons against such injustices (Vitikainen, 2020). This is a loud call for a commitment to recognising and addressing intersectionality needs in legislation.

 

There may not be a single best approach to drive legislative change, but there may be several initiatives to provide a safer environment for LGBTQ refugees and asylum seekers. These are proposed after consulting a variety of resources from UNHCR (2015), Equality Human rights Commission (2015), Council of Europe commissioner of human rights (2018), The Scottish Refugee Council (2020), and Help refugees (2020). It is important to note that these should be approached simultaneously, as change here is to be called on all levels of the government, including Whitehall and Parliamentary select committees.

 

Brexit negotiations should pressure the UK government to produce reformed human rights legislation that ensures the protection of LGBTQ individuals. However, with the hard Brexit we have arrived at, achieving this has become a real challenge that may involve collaborative effort form governmental and nongovernmental organisations on both the national and international levels. This is to address the urgent need for Immigration Laws in the UK to explicitly recognise a separate category/ground for well-founded fear of prosecution for LGBTQ asylum seekers. Human rights lobbying bodies can be only one dimension of this collective effort and can help put pressure, in particular on the Home Office, to recognise and act on the authoritative guidance provided by UNHCR. This latter has rich resources on the state and non-state forms of persecution LGBTQ persons may experience, including prosecution by the country of asylum authorities, host communities, family members, and other asylum-seekers and refugees.

 

In addition, research has an important role to play in establishing the evidence base. Local authorities should engage in further research and knowledge exchange about how to ensure safe reception conditions, as well as the specific care LGBTQ refugees and asylum seekers may need. It is beneficial to seek examples and advice from international good practices of receiving and sheltering LGBTQ refugees and asylum seekers, such as Berlin’s Model for the Support of LGBTI Refugees, which includes counselling, training and the provision of a specific shelter for at-risk LGBTQ asylum seekers (Berlin State Office for Equal Treatment and against Discrimination, 2016). Another example is the work of the Organization for Refuge, Asylum & Migration (ORAM) which is based in San Francisco but works internationally. Their programs assist with the international process of resettling LGBTI refugees by building local networks and supportive communities for LGBTI refugees, while also offering legal representation and assistance (ORAM, 2012; Ruckstuhl, 2016).

 

It is essential to provide a practical guide and professional and culturally sensitive training for all those involved in the asylum-seeking procedure, including decision-makers, interviewers, and interpreters (whose presence in an interview can be very unsettling for the asylum seekers), especially in relation to LGBTQ criminalising laws around the world, religious and cultural pressures, and stereotyping. In addition, seeking to involve trained LGBTQ individuals in the determination process of refugee status for LGBTQ asylum seekers can help to provide more understanding and open-minded decisions. This is to provide an appropriate, sensitive, and efficient assessment of LGBTQ claims for refugee status. This is while ensuring that their dignity is upheld throughout the procedure, where intrusive questioning and physical or psychological tests are completely abandoned. The Home Office and its partners should make full use of already available policy documents, procedural guidelines, tools and other resources on SOGI produced by UNHCR, International Commission of Jurists, ILGA-Europe, ORAM, and EASO. Training can be delivered in co-operation with international agencies, like UNHCR, and civil society organisations that stand for LGBTQ rights (e.g. LGBT Youth, The refugee Council, Refugee Action).

 

Raising awareness is an essential avenue for action. Through organising a successful and positive media campaign which could use posters, workshops, events, slogans, etc., awareness in relation to LGBTQ rights and refugees and asylum seekers issues could be raised across all areas of life in the country, especially in schools and universities, community and civil society organisations, charity supporting retailers, and social media providers. This could be done in co-operation with national and international organisations and agencies that call for LGBTQ refugee and asylum seekers rights (e.g. LGBT Youth Scotland, The Scottish Refugee Council, UNHCR, and the Equality and Human Rights Commission). Such contributions could raise public awareness and understanding around challenges and difficulties LGBTQ refugees and asylum seekers may experience in their country of origin and in the countries they flee to. This would potentially change the voting patterns arriving to a more understanding and inclusive Parliament that follows the example of MP Christine Jardine, the Lib Dems’ spokesperson for home affairs, who said: ‘This Conservative government is letting down every LGBT+ person and every individual in this country who cares about human rights. We should be leading the campaign across the world against homophobia and transphobia. Instead, we have a government that is turning its back and looking the other way’ (The Guardian, 2019). Having said that, it is essential to ensure representation in Parliamentary select committees from academics involved in LGBTQ and refugees research and from LGBTQ rights pressure groups and civil society organisations. This is to arrive at an informed law and policy making process where LGTBQ refugees and asylum seekers rights are preserved.

 

LGBTQ refugees and asylum seekers are particularly at risk of becoming the victims of the growing hostile environment for refugees and asylum seekers in the UK coupled with the uncertainty of post-Brexit availability of protection, allowing the possibility for catastrophic consequences for their safety and dignity. It is important to understand that avoiding this threat is a matter of political will. Therefore, working with international and national partners to train and build the capacity of the public and governmental organisations to work with LGBTQ refugees and asylum seekers, using available international guidance, and increasing the representation of LGBTQ individuals in employment in governmental and civic forums, have the potential to arrive at a more tolerant and better equitable government, Whitehall and select committees.

 

 

 

References:

 

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