Written evidence from Rainbow Migration [EAP0021]
 

Rainbow Migration supports lesbian, gay, bisexual, trans, queer and intersex (LGBTQI+) people through the asylum and immigration system. We provide practical and emotional support to improve self-esteem and confidence, reduce isolation, and help access health services and housing. We also give specialist legal information and advice to LGBTQI+ people who are seeking asylum. We carry out campaigning and policy work to improve the asylum and immigration system.

Summary

The position for LGBTQI+ people seeking asylum in the UK has improved substantially since the 98-99% rejection rate referred to in the Call for Evidence for this inquiry. However, there remains room for improvement in all areas, including asylum accommodation, immigration detention, interpreters, Home Office interviewing and decision making, and the appeals process, as outlined in this submission.

Importantly, government collection and reporting of data to monitor the impact of the asylum system on LGBTQI+ people requires significant improvement, particularly in the context of the Nationality and Borders Bill, where the government has acknowledged a risk of disproportionate impact but has said that this will be mitigated when operationalised. If such mitigation is to be successful it will require very careful monitoring, which should be transparent.

Asylum and protected characteristics

What is the nature and extent of UK asylum claims based on discrimination or persecution relating to the protected characteristics?

1. LGBTQI+ people seek asylum on the basis of their having a well-founded fear of persecution based on their belonging to a ‘particular social group’. The Home Office reports statistics on asylum claims based on sexual orientation (listed as ‘Experimental’ only), but not gender identity, gender expression or sex characteristics. In the year ending December 2019, the total number of asylum claims was 35,737[1], and those based on sexual orientation was 1,800, approximately 5% of the total.[2] In the year ending December 2020 the total number of asylum claims was 29,456[3], and those based on sexual orientation was 1,012, approximately 3.5% of the total.[4]

Are those with certain protected characteristics more or less likely to be granted asylum in the UK?

2. The Home Office reports that overall, ‘the grant rate for LGB claims does not differ greatly from the overall grant rate for non-LGB asylum application’.[5] See Annex with statistics comparing the number of claims on the basis of sexual orientation versus asylum claims generally.

3. We can see from the Annex that, where these statistics are published, countries which have the death penalty for consensual same sex acts between adults have generally had higher grant rates for asylum claims based on sexual orientation, than for asylum claims as a whole.

4. For Cameroon, we can see that in 2019 one third of claims were refused at initial application stage, yet 80% of appeals were allowed. This indicates an issue with decision-making in these cases. Perhaps in response to this, a new Country Policy and Information Note (CPIN) was published in February 2020 which states that “LGBTI persons are likely to face mistreatment from state and societal actors which, by its nature and frequency, may amount to persecution”.[6]

5. LGBTQI+ people from Ghana face extremely high levels of refusals of at least 70% for the past few years, in a country where the situation for them is deteriorating rapidly.[7] The UK Government’s foreign travel advice for Ghana refers to anti-LGBT rhetoric/hate speech, and arrests. The Home Office CPIN states “In general, the state is able but not willing to offer effective protection”.[8] Appeal success rates are absent from the statistics for the period 2018 onwards.

6. Rainbow Migration recommends:

-          The Home Office should improve its statistics on asylum claims based on sexual orientation so they are no longer ‘experimental’.

-          The Home Office should also publish statistics on asylum claims based on gender identity, gender expression and sex characteristics.

What is the nature and extent of the dangers for those with protected characteristics who are seeking asylum in the UK?

7. Living in asylum accommodation or being held in detention can be particularly dangerous for LGBTQI+ people, as it can often result in their being accommodated or detained with people from the community they have fled in the country of origin, or others who are also prejudiced towards them.[9] LGBTQI+ people in these situations may be unable to live openly due to fear of abuse, and this can in turn then make it more difficult for them to evidence their asylum claims. Detention is discussed further below.

8. Complaints relating to asylum accommodation are often ignored or dismissed by housing providers and rarely resolve even very serious problems quickly. LGBTQI+ people have had to remain in the same abusive environment for the duration of their asylum claim, which can take months or years.

9. Rainbow Migration recommends:

-          There should be a range of accommodation options available and offered to LGBTQI+ people who need asylum accommodation and location preference should be taken into account. Some LGBTQI+ people may priories being close to services (for example a legal aid lawyer with specialised knowledge of their type of asylum claim) or an LGBTQI+ community over the type of accommodation. A person’s preference for where to live should not be a relevant consideration in their asylum claim.

-          The complaints process for asylum accommodation should be improved.

The asylum process for individuals with protected characteristics

Are individuals with certain protected characteristics more at risk of harm or unfair treatment when going through the UK asylum process?

10. Yes, our experience shows that LGBTQI+ people are more at risk of harm or unfair treatment when going through the UK asylum process. This includes at asylum interview stage, through to their experiences in the Tribunal system, as set out below.

Home Office interviews and decision-making

11. In July 2018, our research, Still Falling Short, showed that the Home Office application of the correct standard of proof is not always correct in LGBTQI+ asylum claims. All a claimant must prove is that their account is ‘reasonably likely’ and too often this is not the standard applied. Unfortunately, many of the issues raised in this report are still seen in the handling of our service users’ cases. These include the following:

-          Questions asking claimants how they feel about their religion and how they reconcile their sexual orientation with their religion occur too frequently. This kind of questioning presumes a conflict and also implies an expectation of a complex theological narrative.

-          The Home Office routinely addresses documentary evidence as an afterthought, dismisses it without engaging with it in substance or simply labels it as ‘self-serving’ without any evidential basis for doing so. In fact, evidence such as statements from friends or partners, confirmation of participation in LGBTQI+ groups or events, and social media exchanges can have a corroborative effect in the context of the totality of evidence and should be afforded some, or even decisive, weight.

-          Conversely, the Home Office also uses the absence of such evidence as damaging.

-          Persecution, abuse and culturally embedded prejudice means that many LGBTQI+ people have spent much of their lives hiding their sexual orientation or gender identity. LGBTQI+ people may exhibit in some form shame or secrecy about who they are, making it extremely hard for them to talk about their sexual orientation, gender identity, gender expression or sex characteristics (SOGIESC). This means that a great many LGBTQI+ people who claim asylum do not do so immediately on arrival in the UK. Too often, the Home Office assesses this as damaging to their credibility, sometimes refusing asylum claims almost entirely on this basis. Similarly, the Home Office frequently ignores or disbelieves the reasons given by LGBTQI+ to explain why they did not claim asylum earlier – including when people did not know that that SOGIESC was grounds for refugee protection – disregarding the lived experience of LGBTQI+ people seeking asylum.

-          The Home Office also displays unrealistic or stereotypical expectations in relation to what a credible narrative of an LGBTQI+ person should contain. However, people understand themselves in different ways and have different experiences[10].

12. Rainbow Migration recommends:

-          The Home Office should ensure the correct standard of proof of ‘reasonable likelihood’ is applied to all decisions on asylum claims.

-          Decision makers should assess all items of evidence affording them appropriate weight, refrain from applying unreasonable expectations for corroboration and desist from labelling evidence as self-serving where there is no evidential basis for doing so.

-          Home Office decision makers should recognise the many reasons why LGBTQI+ people frequently delay claiming asylum. Delay should not routinely operate to diminish the value of the individual’s account and their supporting evidence.

-          In order to avoid stereotypes, the Home Office should recognise the diversity of LGBTQI+ lives and experiences and that SOGIESC is conceptualised or understood differently according to individual experiences and/or cultural contexts.

-          The Home Office should improve its training and supervision of LGBTQI+ asylum claims.

Interpreters

13. The existence of homophobia, biphobia and transphobia can impact the experience of LGBTQI+ people during their asylum interviews in several ways:

-          There have been times when interpreters have provided a poor service because of prejudice against LGBTQI+ people, for example by mistranslating, rebuking or judging people, or being dismissive of their fears such as the death penalty.

-          LGBTQI+ people can feel inhibited (sometimes extremely so) to talk about their claims in front of an interpreter from the same country of origin for fear of such prejudice and/or fear being outed to others from the same community, with potential negative consequences for the decision.

-          Interpreters from the same community may not always act appropriately if they see the client in other contexts, such as at community events or places of worship.

-          Concepts can be hard to translate across cultures and languages, particularly where they are not usually discussed or are considered taboo.

14. Rainbow Migration recommends:

-          Home Office interpreters receive adequate training on LGBTQI+ awareness and sensitisation, so that they are familiar with the terms and issues people normally face.

-          In order to help put LGBTQI+ people at ease during asylum interviews, the Home Office caseworker should say at the outset of the interview that the interpreter is not there to judge them and that they have a duty of confidentiality so cannot share anything that is said.

Tribunal

15. Some issues have also been encountered by LGBTQI+ people in the Tribunal system. Research carried out by Rainbow Migration, SOGICA and others in 2019 into decision-making by judges found:

-          Stereotyping sexual orientation based on appearance and voice

-          Stereotyping sexual orientation based on sex drive

-          Assumptions based on religion

-          Errors in decision-making as to whether the appellant would face persecution in their home country

-          Disregarding potential persecution due to appearances

-          Disregarding potential persecution due to the existence of gay clubs and venues in major cities

-          Generalising behaviour based on an individual’s ‘manner’

-          Generalising risk of persecution based on the frequency of organised LGBTQI+ activities in a country

16. Rainbow Migration recommends regular mandatory training on LGBTQI+ issues for the judiciary.

Home Office Presenting Officers

17. We are concerned that Presenting Officers frequently do not act in line with Home Office policies and guidance and/or believe that they are not bound by them. We also believe that Presenting Officers too frequently seek to defend refusal decisions which are inherently flawed and which should be withdrawn and reconsidered. On the other hand, in a number of cases where they are presented with overwhelming evidence of a person’s sexual orientation or gender identity, the Presenting Officers either pursue a completely hopeless and outlandish case, or present no challenge to the Appellant’s witnesses. The result of this failure to reconsider decisions at an early stage and in a timely fashion means that appellants are needlessly brought to court. This causes unnecessary stress for appellants and delays in rebuilding their lives. It also generates unnecessary costs, particularly for appellants who are privately funding their legal representation.

18. Rainbow Migration recommends:

-            Presenting Officers should receive ongoing training, including on claims based on sexual orientation or gender identity.

-            It is made clear to Presenting Officers that they are expected to act in line with Home Office asylum policy instructions and other guidance.

-            The Home Office asylum appeals team should consider conceding cases that are indefensible in court. We are aware that such a review is built into the new process in the First-Tier Tribunal, however it is often still difficult to get the Home Office to properly engage at an early stage of the appeal process, with Tribunal orders often ignored by the Respondent. 

Detention

19. In 2016, Rainbow Migration and Stonewall published No Safe Refuge[11], a research report on the experiences of LGBTQI+ people seeking asylum while in detention. The report highlights the systemic discrimination, abuse and harassment that LGBTQI+ people face from both staff and other people who have been detained. The report contains examples of acts committed by others held in detention and staff, and incidents where staff have failed to protect individuals.

20. The Home Office does not recognise that LGB people are vulnerable in detention centres. Only trans and intersex people are expressly included in the Adults at Risk policy.

21. Being LGBTI is recognised as a potential vulnerability by the Home Office in the following instances:

-                 UKVI’s adult safeguarding strategy states that being LGBTI is an indicator of vulnerability.

-                 On the database used by asylum caseworkers[12], there is a ‘special conditions marker’ which can be used to indicate vulnerability. One of the 29 indicators is being LGBTI.

-                 LGBTI people are recognised as vulnerable for the purposes of resettlement.

22. It is inconsistent that this same recognition is not extended to detention. LGB asylum seekers are also recognised as vulnerable in detention by the Judicial College in the Equal Treatment Bench Book. It is unclear why this vulnerability is recognised by the judiciary but not by the Home Office.

23. Even with the explicit inclusion of trans people in the Adults at Risk policy, we are aware that trans people have still been detained.

24. The requirement for evidence under the Adults at Risk policy is highly problematic for LGBTQI+ people. It would be asking the impossible to expect somebody to have ‘professional evidence’ that they are LGBTQI+. Self-declaration of being LGBTQI+ should be sufficient for someone to be recognised as potentially at risk of harm in detention. In the case of persons seeking asylum, it should be recorded on the Home Office’s casework database if sexual orientation or gender identity form a basis of the claim. This same information is used as an indicator of potential vulnerability under the Home Office’s safeguarding strategy, so it should be easy to extend that recognition to detention and use the same data source.

25. LGBTQI+ people are often reluctant to use complaints mechanisms for fear of reprisals. The result is that LGBTQI+ people may experience bullying, harassment or abuse from other people held in detention centres but staff are unaware.

26. In his report on the Adults at Risk annual inspection, the Independent Chief Inspector of Borders and Immigration commented upon the fact that the Home Office does not collect data on the number of LGBTQI+ people who are detained, and therefore it was ‘hard to see how the Home Office is able to assess the quality of its decisions to detain or the impacts of detention on specific groups.’[13]

27. The lack of monitoring is also relevant when considering the assertions made by the government in the Equality Impact Assessment for the Nationality and Borders Bill in relation to mitigation of discriminatory impact, as detailed below.

28. Rainbow Migration recommends:

-                   The Home Office should recognise lesbian, gay and bisexual people as vulnerable in immigration detention, alongside existing identification of the vulnerability of trans and intersex people in detention. This would be in line with developments in international law finding that detention of LGBTQI+ people places them in a situation of vulnerability, and consistent with the Home Office’s existing recognition of the vulnerability of LGBTQI+ people under its safeguarding strategy, asylum casework database and resettlement programmes to immigration detention.

-                   As it is almost impossible for the safety of LGBTQI+ people to be assured in detention, the Home Office should end the detention of all LGBTQI+ people.

Are particular protected characteristics given priority in the asylum process?

29. LGBTQI+ people are not given any particular priority in the asylum process. We believe that delays in the system as a whole are the issue here, rather than a failure to prioritise certain groups.

How is the Government addressing any discrimination or specific dangers for those with protected characteristics in the asylum process, and what more could be done?

30. The Home Office does not monitor data on LGBTQI+ people in the asylum system. It is therefore difficult to see if and how the government can address direct or indirect discrimination towards them.[14]

31. This is despite a recommendation by the Independent Chief Inspector of Borders and Immigration that the government should capture and analyse data in relation to LGBTQI+ individuals to test the appropriateness of providing asylum accommodation to people on a no-choice basis[15]; and a recommendation by the Home Affairs Select Committee that the Home Office should monitor and publish statistics on the number of LGBTQI+ people it detains[16].

32. A review into the way asylum claims on the basis of religious and LGBTQI+ grounds are assessed was carried out by the Home Office in 2019/2020, and an action plan was formed. However, the Home Office has declined to publish either the internal review or the action plan.[17] A verbal summary was provided to stakeholders during a meeting in March 2020, however much of it was broader than religious and LGBTQI+ asylum claims, and Rainbow Migration was concerned that the review did not appear to address whether decisions on LGBTQI+ claims were being taken in line with the Home Office’s asylum policy instruction on sexual orientation.

33. Rainbow Migration recommends that:

-          The Home Office should collect and analyse data on the experiences of LGBTQI+ people in all their interactions with the asylum system, from the progress and outcomes of asylum claims to their experiences of accommodation and detention, and use such data to ensure there is no direct or indirect discrimination towards them.

-          The review into the way asylum claims on the basis of religious and LGBTQI+ grounds are assessed is published.

Nationality and Borders Bill

34. Rather than addressing the discrimination and dangers faced by those by LGBTQI+ people, the government has introduced the Nationality and Borders Bill, which will exacerbate these issues. We have set out our concerns regarding the Bill in detail in our Committee stage briefing.[18]

35. The Equality Impact Assessment (EIA) for the Bill acknowledges at paragraph 18 that: “There is a risk that our policies could indirectly disadvantage protected groups. However, our analysis is that with appropriate mitigation and justification, such impacts would not amount to unlawful indirect discrimination within the meaning of the 2010 Act.”[19] Those with the protected characteristics of gender reassignment and sexual orientation are specifically listed as “Vulnerable people” at paragraph 19, where it is acknowledged that: “Members of this cohort might find it more difficult than others: to disclose what has happened to them; to participate in proceedings; and to understand the consequences of non-compliance with legal requirements. There may also be trauma-related considerations, in terms of how any vulnerable groups adduce evidence.

36. We will continue to consider ways in which to mitigate adverse impacts on vulnerable people. For example, we will mitigate the risk of adverse impacts on unaccompanied asylum-seeking children by exempting them from the inadmissibility process. We will provide guidance to operational teams on interviewing and supporting vulnerable people and when determining the type of accommodation that would be appropriate for their needs. We will also provide increased access to legal aid.”

37. Given it is acknowledged in Home Office guidance documents as well as in the EIA that LGBTQI+ people will have issues with providing disclosure at a set time, it is unclear why it has not been possible at this stage to explain how the acknowledged potential harm will be mitigated. At paragraph 17d of the EIA, it is stated that much will depend on operationalisation, which “will provide opportunities to devise checks, balances and safeguards where there is a risk of adverse impact”. At 17c it states, “although we lack data about gender reassignment and sexual orientation, stakeholder feedback has helped us to make assumptions and to develop assessments of potential impacts on these protected characteristics”.

38. Rainbow Migration, as a relevant stakeholder, has provided an explanation of the impact of the Bill on LGBTQI+ people, both during the New Plan for Immigration consultation, and since, and so it is unclear why mitigation and safeguards need to wait until operationalisation. It is also unclear how long this would take, and in the meantime LGBTQI+ people would be subject to the penalties in the Bill.

39. At 21b of the EIA, it states that mitigation will involve: “Training of relevant staff, including first responders, social workers and carers, will assist in the identification of vulnerable individuals and guide decisions on the appropriate type of support. We will provide guidance to operational teams on interviewing and supporting vulnerable people. Interpreters will be available, and individuals will be able to request their preferred sex of interpreter and interviewer.” Training already exists[20] as does guidance[21] and the ability to choose the gender of the interpreter and interviewer. Yet as shown in Still Falling Short, these are not always followed, and have not been enough to resolve the issues seen. We therefore do not believe that this is an adequate safeguard, and the consequences under the Bill will be far more serious.

40. Another example of the existing checks and safeguards do not work, has been seen with the use of Napier barracks as asylum accommodation, where errors in identifying those who are and are not deemed suitable were acknowledged by the Home Office.[22] The “Suitability Assessment for Contingency Accommodation”[23] and the “Allocation of accommodation policy”[24] do not mention LGBTQI+ people at all, thereby deeming them suitable to be accommodated in the barracks, despite the issues that arise for LGBTQI+ people in this type of accommodation. The lack of monitoring and provision under existing guidance for LGBTQI+ people raises concerns about the ability to effectively safeguard LGBTQI+ people against the effects of the Bill.

41. Rainbow Migration recommends that the government should provide an explanation of how they will monitor the effects of the Nationality and Borders Bill on LGBTQI+ people.

How has the Covid-19 pandemic affected those with protected characteristics who are seeking asylum?

42. In addition to exacerbating the pre-existing delays in the asylum system, the Covid-19 pandemic affected LGBTQI+ people in asylum accommodation, as they were unable to leave a situation where many of them face discrimination and harassment. Demand for Rainbow Migration’s emotional support services was three times higher than normal from March 2020 to December 2020, as LGBTQI+ people felt trapped in unsafe, shared accommodation and isolated from their support networks.

November 2021

Annex

Countries highlighted in red have the death penalty for consensual same-sex acts between adults.[25]

Countries highlighted in orange have prison sentences of ten years to life for consensual same-sex acts between adults.[26]

Countries highlighted in yellow have prison sentences of up to eight years for consensual same-sex acts between adults.[27]

2015

2016

2017

2018

2019