Written evidence from Dr S Chelvan, Barrister, Bedford Row Chambers [EAP0008]
Oral Evidence: The author would be honoured to be called by the Select Committee to provide oral evidence with respect to not only the contents of the responses to this submission, but any other issues of inquiry to be explored. The author is a specialist expert practitioner in the field of LGBTQ+ asylum with a national and international reputation in the field, having specialised in this field since 2001, with reported guideline cases since 2005. For the past five years the Legal 500 Legal Directory have profiled the author in Tier-1 for Immigration, London Bar, stating for the past three years: “[h]is expertise in sexual identity related asylum claims is world renowned”. He was awarded the Legal Aid Barrister of the Year award in 2014, and the Attitude Magazine Pride Award in 2018, for his work on refugee claims based on sexual-identity. His PhD in Law was awarded in June 2019 by King’s College London, with his thesis based on his DSSH model and sexual-identity asylum claims in England and Wales.
SUMMARY: - The Emotional Journey:
In 2013, the Author provided Written and Oral Evidence to the Home Affairs Committee on Asylum, See Volumes 1 and 2 outlining his Difference, Stigma, Shame and Harm (‘DSSH’) model, created in 2011 as a basis of an alternative approach to the UK Home Office with respect to credibility assessment following the shift “from discretion to disbelief” after the Supreme Court guidance in July 2010 in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31; 1 AC 596.
In 2014, the Independent Chief Inspector John Vine recommended in his report the adoption of the DSSH model by the UK Home Office in determining sexual-identity asylum claims. By 2015, the model had been adopted by the Home Office as advanced by the author as a positive, and not a negative tool, for credibility assessment for LGBTQ+ asylum claims. The model has also been adopted by the UNHCR, the European Asylum and Support Office, the International Association of Refugee Law Judges, and governmental agencies globally (for example Switzerland, Sweden, the Republic of Ireland etc…). The author’s response to the questions posed by the Inquiry hopefully assists the Committee in addressing the concerns it may have with respect to Home Office approach to credibility assessment, and “the emotional journey”.
The author was appointed in October 2019 as the Independent Reviewer by the Independent Advisory Group on Country Information to conduct a thematic review of Home Office Country of Origin (‘COI’) Reports on Sexual identity, Gender identity and expression (‘SOGIE’). The author’s 400 plus page report, approved by the IAGCI on 31 March 2020, and laid before Parliament by the Home Secretary in December 2020, analysed 31 Home Office SOGIE COI reports, providing ten recommendations, six fully accepted by the Home Office, and two partially accepted. This response includes some issues of significant concern with respect to the Home Office’s lack of improvement since the publication of the author’s report, reinforcing a view of lack of engagement with refugee law, based on delay, denying the Home Office an ability to make accurate and reliance decisions.
Replies to Questions Posed by the Select Committee (Terms of Reference – selection of);
Nationality and Borders Bill 2021:
(i) Delay not the fault of the Refugee Applicant – Clauses 16, 21, 23 and 34:
(ii) Lack of Safe Routes to the UK for LGBTQ+ Refugees – Schedule 3:
(iii) Our Historical Debt to LGBTQ+ Refugees – the Unspoken Pull Factor:
Country Policy and Information Team – Grave Concerns:
(i) Sri Lanka – forced anal examination of suspected gay men:
(ii) Kenyan – Kenneth Macharia:
(iii) Home Office discrimination against lesbians:
 ‘House of Commons Home Affairs Committee – Asylum – Seventh Report of Session 2013-14, Volumes 1 and 2 (printed 8 October 2013) (Volume 1, Oral Evidence, page 27, paragraph 59 “A leading barrister in this area, S. Chelvan”, Law Society Written Evidence Ev 143 “The Society endorses this evidence in its entirety”, and ILPA Supplementary Evidence, Ev 85 “His “Difference, Shame, Stigma, Harm” model has received considerable attention as a way of examining the evidence in these claims”, and author’s written evidence in Volume II, Ev w 125-128), Last accessed November, 7 2021
 See paragraph 82 of the judgment for the four stages to determine an asylum claim (for any Convention reason). The first limb is the subjective credibility assessment, to ‘prove’ LGBTQ+ (ort perceived to be). The second limb is purely objective, to determine whether “open LGBT+ individuals have a well-founded fear of persecution”, and the third limb (whether the applicant will be open on return, therefore a refugee), and the final limb, if not open, if a reason for discretion is due to a fear of persecution, then the individual is a refugee. See also LC (Albania) v Secretary of State for the Home Department  EWCA Civ. 351, paragraph 2.
 Independent Chief Inspector’s report (recommendation 7, page 4: “Provides more detail about the DSSH model in its training for caseworkers so that it can contribute to the quality of interviewing”): ‘An investigation into the Home Office’s Handling of Asylum Claims Made on the Grounds of Sexual Orientation’ March-June 2014, Last accessed November 7, 2021:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/547330/Investigation-into-the-Handling-of-Asylum-Claims_Oct_2014.pdf UK Home Office. The Home Office response to the Independent Chief Inspector’s report: ‘An investigation into the Home Office’s Handling of Asylum Claims Made on the Grounds of Sexual Orientation’ March-June 2014 (London, Home Office, October 23, 2014). Last accessed March 27, 2020,
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/365654/ResponseAsylumClaimsBasisSexualOrientation.pdf. The most recent version of the published guidance was last updated in August 2016: UK Home Office. Asylum Policy Instruction on Sexual orientation issues in the asylum claim (version 6) (London, Home Office, August 3, 2016), page 29 of 41. Last accessed November 7, 2021,
 United Nations High Commission for Refugees, ‘Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (HCR/GIP/12/09) (23 October 2012), paragraph 62: Last accessed November 7, 2021. http://www.unhcr.org/50ae466f9.pdf See for earlier context: UNHCR, IARLJ and ELENA, ‘Informal meeting of Experts of Refugee Claims relating to Sexual Orientation and Gender Identity – 10 September 2011, Bled, Slovenia (2012) <https://www.ecre.org/wp-content/uploads/2016/05/UNHCR_IARLJ_ELENA-Report_Expert-Meeting_final_24-April-2012.pdf> Last accessed November 7, 2021 3 . Chapter Four of this thesis addresses the international policy framework in detail. Importantly, the meeting was attended by two senior Upper Tribunal Judges, Upper Tribunal Judge Hugo Storey and Upper Tribunal Judge Judith Gleeson. See also UNHCR/IOM joint project for global fieldworkers – training on the DSSH model (December 2015): Maks Levin, ‘UNHCR leads in LGBTI refugee, asylum seeker protection: largest and most comprehensive training package of its kind being rolled out globally’ (24 December 2015) < <http://www.unhcr.org/567bb2869.html> accessed 19 August 2018. In the specific ‘Module 02: Conducting Interviews’ this consists of 50 slides addressing the DSSH model, highlighting on Slide 3, in a flow chart: ‘Learn to conduct respectful interviews exploring what questions to be ask and avoid, and other factors – Understand the Difference, Stigma, Shame, Harm (DSSH) model of conducting interviews – Review ways to create a safe space within the interview environment and encourage open and dignified communication. (emphasis in text)’
 This model is additionally endorsed by the IARLJ,IARL-EASO credibility assessment (2018), pages 179-180, Last accessed November 7, 2021 Evidence and credibility assessment in the context of the Common European Asylum System (europa.eu)
 For an outline of the mode, see UNHCR CREDO Project training in S Chelvan, and Gyualai, Gábor. “Chapter XI: Asylum Claims based on Sexual Orientation or Gender Identity,” in Gábor Gyulai, eds. Credibility Assessment in Asylum Procedures: A Multidisciplinary Training Manual Volume 2 (Budapest: Hungarian Helsinki Committee, Budapest, 2015), Last Accessed November 7, 2021 https://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=5582addb4 and for a detailed analysis of the history of the model and the need to ensure the refugee applicant is prepared for the Home Office interview by being prepared with a DSSH model statement, see, S Chelvan “Chapter 4: the DSSH Model and the Voice of the Silenced: Aderonke Apata – The Queer Refugee: “I Am a Lesbian” in Senthoran Raj and Peter Dunne, eds. The Queer Outside in Law Recognising LGBTIQ People in the United Kingdom (Palgrave, 2021).
 S Chelvan, “Removing the Mask: Locating the ‘Gay Martyr’: Reviewing UK Home Office Country of Origin Information relating to Sexual Orientation and Gender Identity or Expression (‘SOGIE’) Protection Claims: - ‘How COI is used for refugee status determination (second limb of Lord Rodger’s binding guidance in HJ (Iran) (para 82).’ (10 February 2020) (see below for link).
 See Annex C for author’s detailed report (cited in the above footnote), and Annex A for list of recommendations Last Accessed November 7, 2021 https://www.gov.uk/government/publications/inspection-of-country-of-origin-information-thematic-report-on-sexual-orientation-and-gender-identity-or-expression For Home Office Response on Independent Chief Inspector’s three recommendations, see Last Accessed November 7, 2021 https://www.gov.uk/government/collections/responses-to-reports-by-the-independent-chief-inspector-of-borders-and-immigration The author relied on drawing a comparison of the experimental statistics on asylum claims based on sexual orientation, on his knowledge of the risk factors outlined in the COI reports to deduce whether negative initial decisions were based on adverse credibility assessment alone, for example the Home Office accepts SOGIESC risk in Pakistan cases, and on this basis the majority of negative initial decisions could be safely regarded as due to adverse historic credibility assessment.
 “[O]wing to wellfounded 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 or former habitual residence and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The Convention Relating to the Status of Refugees, opened for signature, 28th July 1951, 189 U.N.T.S. 150, entered into force, 22nd April 1954, as amended by the Protocol Relating to the Status of Refugees 1967, 606 U.N.T.S. 267, entered into force, 4th October 1967. UK’s ratification of the 1951 Convention on 11 March 1954 and accession to the 1967 Protocol on 4 September 1968, Last accessed November 7, 2021:
 11 March 1954. Ratification of 1967 Protocol 4 September 1968.
 Referred to as “section 28”, but was actually clause 28 of the bill and section 2A of the Local Government Act 1988.
 R v. Secretary of State for the Home Department ex parte Zia Mehmet Binbasi  Imm AR 595.
 R v. Immigration Appeal Tribunal ex p Shah and anor  2 AC 629.
 See SW (lesbians – HJ and HT applied) Jamaica CG  UKUT 251 (IAC).
 This ‘test’ was disproportionately applied to gay, lesbian and bisexual refugee applicants, with only one reported non-LGB case reported applying this discretion test (SZ and JM (Christians – FM confirmed) Iran CG  UKAIT 00082). Ironically, in SW (Jamaica) the lesbian appellant was positively found to be a returnee who would be open on return, notwithstanding the real risk of curative rape or murder.
 Miles, N, ‘No Going Back: Lesbian and Gay People and the Asylum System’ (STONEWALL May 2010), Last accessed November 7, 2021 https://www.stonewall.org.uk/sites/default/files/No_Going_Back__2010_.pdf
 ‘Failing the Grade’ (UK Lesbian and Gay Immigration Group, April 2010) Last accessed November 7, 2021 https://uklgig.org.uk/wp-content/uploads/2014/04/Failing-the-Grade.pdf
 UK Home Office, “Asylum Claims on the basis of Sexual Orientation” (August 26, 2021) Last accessed November 7, 2021 https://www.gov.uk/government/statistics/immigration-statistics-year-ending-june-2021/asylum-claims-on-the-basis-of-sexual-orientation-2020
 The most recent on-line Policy Position paper is the 2017 Home Office Equality Impact Policy Position Paper – Processing Asylum Claims of those in Detention, September 19, 2017 Last Accessed November 7, 2021 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/667250/Home_Office_PES_-_Processing_asylum_claims_in_detention_-_September_2017.pdf which states:
“LGB training (and refresher training), developed in cooperation with corporate partners, is provided to decision-makers, including those dealing with detained asylum casework, which provides guidance on how to effectively and sensitively explore LGB issues at interview and how to address credibility appropriately in LGB decision letters. It outlines the DSSH (Difference, Stigma, Shame, Harm) model and how it can be used when conducting LGB interviews to explore credibility effectively and sensitively.”
 Last Accessed November 7, 2021 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/923254/Sri_Lanka-_SOGIE_CPIN_-_v4.0__1_.pdf
 Last accessed November 7, 2021: https://www.33bedfordrow.co.uk/upload/files/NASF%20Equality%20sub-group%20paper%20-%20IAGCI%20SOGIE%20Thematic%20Review-%20%20-%203%20March%202021%20for%209%20March%202021%20meeting%20to%20be%20circulated%202.pdf
 (30/10/20) Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions | Human Rights Watch (hrw.org) Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions | Human Rights Watch (hrw.org) https://www.hrw.org/news/2020/10/20/sri-lanka-forced-anal-exams-homosexuality-prosecutions and Arrests and Harassment of LGBTIQ Persons (article by Shihara Maduwage, for Groundviews (22 October 2020) Arrests and Harassment of LGBTIQ Persons – Groundviews , https://groundviews.org/2020/10/22/arrests-and-harassment-of-lgbtiq-persons/ Last accessed November 7, 2021.
 FTT Determination promulgated 24 June 2021, Last accessed November 7, 2021 https://www.33bedfordrow.co.uk/upload/files/D.O.S%2024%2006%202021%20Decision%20by%20IJ%20Mensah%20PA%2004147%202020%201.pdf
 Last Accessed November 7, 2021 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879496/Kenya_-SOGIE-CPIN-v3.0__GOV.UK_.pdf
 ‘Gay Kenyan Rugby Player Kenneth Macharia Wins Asylum Appeal – Dr Chelvan instructed – calls for Urgent Home Office Reform’ (33 Bedford Row Chambers, 19 July 2021), Last Accessed November 7, 2021 https://www.33bedfordrow.co.uk/insights/news/gay-kenyan-rugby-player-kenneth-macharia-wins-asylum-appeal-dr-chelvan , click on link to see national and international media attention this case attracted.
 ‘Home Office Case before the Upper Tribunal Collapses in Bangladesh Lesbian Asylum Case’ (33 Bedford Row Chambers, 15 September 2021), Last Accessed November 7, 2021 https://www.33bedfordrow.co.uk/insights/news/home-office-case-before-the-upper-tribunal-collapses-in-bangladesh-lesbian-asylum-case
 Last Accessed November 7, 2021 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880555/BGD-SOGIE-CPIN-v4.0__April_2020_.pdf