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First they were ignored. Then they were told to hide it. Now they are told to prove it. Amnestys refugee researcher Paul Dillane shows how the UK asylum system fails people fleeing persecution because of their sexual orientation.
After World War two, the international community made an effort to ensure that what happened to the Jews in Nazi Germany could never happen again. It proclaimed the right of people who are at risk of persecution in their home country to depart and seek international protection elsewhere. Sadly, concern for gay people was not in the minds of the international community, even though gay people wearing the pink triangle were exterminated in Nazi Germany in concentration camps alongside Jews wearing the star of david. the 1951 refugee Convention, the cornerstone of the international refugee framework, did not and was not intended to protect gay and lesbian people. for the next five decades gay people were effectively forgotten. It wasnt until 1999 that the UK courts recognised that a gay person could fall within the remit of the refugee Convention. Unfortunately, that recognition was rarely sufficient to ensure the protection to which gay people were entitled. Between 1999 and 2010, when we had a major landmark ruling from the UK Supreme Court about the rights of gay refugees, the discretion principle applied. for a political activist or a member of a religious or ethnic minority, if the asylum system accepts that your life would be at risk, you are not expected to return to your country and seek to hide or suppress these aspects of your person in order to avoid harm. But for gay or lesbian people, decision makers regularly told them to simply go home and be discreet in order to avoid any future difficulties. this is the discretion principle, an objectionable principle which persists in many european countries and has caused immeasurable suffering in the UK. It was during this period, from 2003, that I started legally representing people seeking asylum in the UK. I remember having extraordinary arguments with judges and government lawyers as to, for example, where an individual in Iran might go to have gay sex. the focus was squarely on conduct, with little thought for an individuals ability to be open about their sexuality or their rights to enjoy their lives to the full extent which the rest of us enjoy. the UK authorities would regularly assert that the British embassy had reported that there was a park in tehran where one could go to have sex with other men. I often wondered how a British embassy official discovered this! the preoccupation with conduct was revealed in the language used. We have legal judgments in which government lawyers and judges referred to gay people as homosexuals and sodomites wanting to engage in buggery and sodomy. I have never met a gay person who identified themselves as a sodomite and, as a gay man, I found this utterly offensive. In 2010, we had the most remarkable ruling from the UK Supreme Court in a case concerning two gay men: one from Iran and one from Cameroon. this judgment transformed the UK legal landscape. the judges asserted that what is protected under the law is the right to live freely and openly as a gay man. this involves a wide spectrum of conduct going beyond conduct designed to attract sexual partners and maintain relationships with them. this is the essence of what a gay person seeking sanctuary in our society is looking for: a chance to access protection and exercise the full plethora of rights afforded under international human rights law. lord roger, one of the key judges in this case, sought to illustrate the point with a stereotypical example. He said, just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals

are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Unfortunately, this attempt at British humour was lost on some. one newspaper proclaimed: Gay asylum seekers have the right to Kylie Minogue. the ruling finally rid us of the discretion principle, but since then we have seen a shift from discretion to disbelief. this shift was predicted by writer Jenni Millbank (From Discretion to Disbelief: Recent trends in refugee determinations on the basis of sexual orientation in Australia and the UK). Asylum seekers now face great difficulties in persuading decision makers that they are telling the truth about their sexual orientation or gender identity. We regularly see decisions refusing applications for asylum in which the authorities state, for instance, you have failed to prove your sexuality. Proving your sexuality is often extraordinarily

difficult. that is why we at Amnesty find ourselves continually intervening in cases to remind decision-makers how they should approach this issue. the asylum decisions we see place the lives of genuine lesbian, gay, bisexual, transgender and intersex (lGBtI) people at risk of being returned to a country where they face significant danger. Just last month we were involved in frantic efforts in the High Court to prevent the forcible return of a young man who claims to be gay to Cameroon. In his country same-sex acts are punishable by up to five years imprisonment and we have documented the arrest and conviction of a number of people for nothing more than their actual or perceived sexuality. Stereotypical ideas of what gay or lesbian people do in their personal affairs persist among asylum decision makers. I recently worked on the case of a young woman who was forced to flee Uganda after a family member walked in on her having sex with a female partner. Uganda is a deeply homophobic country and the risks to lGBtI people are grave. the British official refused her asylum claim, arguing given your concern about being identified as a lesbian you would not have engaged in the sex act if there was any possibility that this would have been discovered. In effect, it was argued that it is inconceivable that a person from a country in which same-sex acts are criminalised will ever engage in sexual intercourse with a person of the same sex if there is a remote possibility of discovery. this is frankly ridiculous. In another recent case the UK authorities would not accept a mans claim to be gay. At his appeal hearing the government lawyer asked him: So this boyfriend that you say that you have, do you do anything intimate with him? Now the first thing I was taught before being sent off to court to represent asylum seekers was: never ask a question that you dont know the answer to. the answer this particular gentleman gave was so graphic that any doubts that he was gay were quickly dispelled. there have been significant legal advances in the UK over the years, including the 2010 Supreme Court judgment. But serious concerns persist about the treatment of lGBtI asylum seekers in the UK asylum process. Peter tatchell, the human rights activist, once said that lGBtI rights are the litmus test for how a society respects human rights. If I was marking the UKs report card, I would say must do better.

Lou Dunn

www.uklgig.org.uk www. stonewall.org.uk

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