How does the Home Office evaluate sexual identity in asylum claims?

 People seeking asylum based on their sexual orientation, including homosexuality and bisexuality, may be members of a "particular social group" eligible for refugee protection under the Refugee Convention.

Part of the Home Office caseworker's role in deciding whether to accept an asylum application is to analyse the person's overall trustworthiness. This involves determining whether the candidate is speaking the truth about their sexual orientation, which is often challenging.

Sexual orientation is a highly personal and subjective thing that manifests itself in a wide range of experiences. This essay examines the criteria used by the Home Office to evaluate it in the hopes of casting some light on the process.

Because claims based on gender identity are subject to different policies and processes, trans and intersex claims are not addressed in this piece.

"Shame, embarrassment, and concealment"

Caseworkers are instructed by the Home Office to seek for evidence that the person was made to feel "ashamed, humiliated, or stigmatised" because of their sexual orientation. Examples include being bullied at school by peers or teachers, or being harassed by members of their community.

Caseworkers are also instructed to examine the applicant's narrative for references to "strong disapproval from external sources" indicating that the applicant's behaviour is inappropriate, immoral, or wicked.

They are also looking for someone who believes that their sexual orientation is "wrong." This might be difficult, especially if the applicant is convinced that they are not doing anything illegal. For example, a client of mine consistently remarked that she was proud of her sexual identity as a lesbian woman and did not feel different; she simply felt "herself."

An applicant will have two chances to offer evidence capable of establishing this: during their substantive asylum interview and in supporting evidence such as a witness statement.

"Troubled self-disclosure"

An asylum caseworker will also seek for proof of "traumatic self-disclosure," which, in my experience, indicates how the person came to realise their sexual identity. In general, the Home Office prefers to observe a "journey" to sexual awareness.

In asylum denial rulings, it has been said that "you did not present an overtly emotive depiction of your sexuality." There is often a presumption that someone's path will be an emotional and sad one to recount. However, the nature of having been persecuted in the past implies that a person may not come out as "overly sensitive." Of course, some legitimate claimants just do not have the type of personality that responds well to big emotional expressions.

My client's relatives informed her repeatedly that her sexual orientation was improper. This meant she had spent years concealing her sexuality. When questioned at the interview, she found it difficult to talk about her experiences with emotion since she had learned to repress her emotions as a safety technique. To establish the claim in this case, medical evidence of trauma was required.

The guidance states that caseworkers should not stereotype behaviour and should respect the claimant's human dignity. However, I have listened to and participated in asylum interviews in which clients are repeatedly questioned when they first realised they were gay or when they first felt attracted to someone of the same sex. These inquiries create an unfair demand on the applicant to investigate and articulate their sexuality, which is an innate and often enigmatic aspect of who they are.

The guidance does acknowledge that someone may only discover their sexuality later in life, and that this should not be used against them. It also acknowledges that LGBTQI+ people may have opposite sex marriages or children, and that this should not be considered a disadvantage.

Situation in the country

During the asylum interview, caseworkers are asked to discuss with the applicant which social, legal, and cultural standards they are perceived to be violating. Is homosexuality, for example, illegal in their own country or deemed wicked according to religious doctrine?

This is because the claim is evaluated not just on the basis of the individual's local experiences, but also on the larger context of the country. This can cause issues if the applicant comes from a sheltered or unrepresentative environment; for example, a young woman living on a family compound may have little or no access to news about the situation for LGBTQI+ individuals in other places.

Three useful hints

Concentrate on the journey: a comprehensive witness statement can be extremely useful in this type of claim. It should include a description of how someone became aware of their sexual orientation. Prompting inquiries about this might be a smart method for lawyers preparing such cases to begin crafting the statement.

Consider the situation: does the home nation have a law prohibiting homosexuality? What is the societal context if not? Angola, for example, decriminalised same-sex consensual partnerships in 2019, yet several human rights organisations warn that prejudice remains rampant.

Is additional evidence required? Consider medical evidence in situations where a person's trauma may impair their capacity to recount.

Asylum cases should be judged based on whether something has a "reasonable degree of possibility" of being factual. When required to "prove" their sexual orientation, claimants in sexual identity claims may be held to a higher standard. Keeping in mind the methodology used to assess such scenarios should be helpful, while it is clear that it cannot cleanly account for something as personal as sexual orientation in each iteration.