This is a case response based on press articles describing how the Home Office requires Lesbian, Gay and Bisexual people (hereafter “LGB”) seeking asylum in the United Kingdom to “prove their sexuality”. The articles describe how some claimants are going to extreme measures to demonstrate their sexuality by revealing private and personal photos and other materials as evidence. This case response will provide a social work perspective of the legal issues surrounding this matter and will draw upon key legislation impacting social work practice.
The General Legal Framework
Asylum in the UK is governed by a complicated web of international treaties, statutes, home office rules and case law. In relation to key legislation, these are the Immigration and Asylum Act 1999 (“IAA 1999”), and supplemented by the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“AIA 2004”) In order to be granted asylum, the asylum-seeker must prove firstly, that they are in the UK; secondly, that they are a ‘refugee’ as defined by the Geneva Convention 1951 (“1951 Convention”); and thirdly that to refuse the application would result in the applicant returning to a country where their life or freedom would be threatened on account of race, religion, political opinion or being part of a social group.
A person, who defines themselves as gay, lesbian or bisexual as in the case response at hand, would fall under a social group recognised by the 1951 Convention . As further clarity on the definition of what is a refugee, Article 1A(2) defines this as a person who: “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence.. is unable or, owing to such fear, is unwilling to return to it.”
A Review of the Application Process
It is important for social workers and other advisers who are involved in supporting or helping the LGB asylum-seeker to be aware of the decision making criteria especially when dealing with requirements of evidence by the Home Office. The Home Office is able to reject an asylum-seeker’s application if they delay in their actions to demonstrate support of their claim. The immigration rules clearly outline certain factors which may lead to a refusal. For example, a failure without reasonable explanation to make a prompt and full disclosure of material factors, either orally or in writing may lead to a refusal of the application . This may pose an issue for the LGB applicant whose application is based on proving their sexuality. It is difficult to see how an LGB applicant would be able to make a prompt and full disclosure if asked to prove sexuality. If...