UK Says Gay Asylum Seekers Can Come Out of the Closet

The UK Supreme Court struck down a draconian policy of questioning LGBT asylum seekers on whether they might avoid persecution back home by hiding their sexuality.

By Michelle Chen Jul 09, 2010

Anyone who’s ever had to come out to friends and family has probably spent at least some time in denial, careful not to betray any sign of an unaccepted sexual identity. Would you have kept hiding if your life depended on it? Until this week, that’s pretty much the advice that immigration officials in the United Kingdom were giving many LGBT asylum seekers fleeing persecution in their home countries.

The UK Supreme Court just struck down a draconian policy that pushed immigration authorities to question LGBT asylum seekers on whether they might be able to avoid persecution back home if they just made some, you know adjustments. Under the "discretion test," the Home Office would ask petitioners if they might be " ‘reasonably expected to tolerate’ conditions back home that would require [them] to be discreet and avoid persecution," the BBC reports.

The controversial practice caught the attention of the United Nations High Commissioner for Refugees, which advises refugee and asylum policies in key destinations like the UK and the United States (the UN reports, "90 per cent of all refugees resettled every year are accepted by the United States, Canada and Australia"). The level of scrutiny to which aslyum seekers are subjected is a critical issue in the global movement for LGBT rights. The need for LGBT asylum may well intensify around the world, particularly in places like Uganda, Indonesia, Iran, and Iraq, where, according to the International Gay and Lesbian Human Rights Commission, cultural conservatism shades into violence and oppression, especially toward activists who put their lives on the line to challenge prevailing religious, cultural or legal norms.

Not all LGBT asylum claims are categorically rejected on these grounds, but arbitrary denials are reportedly prevalent. In the United States, the asylum rights of LGBT people is cemented in legal precedent, but the process of proving the case in court remains for many claimants a game of roulette.

One of the stories at the center of the UK case reveals the untenable choices confronting one gay asylum seeker:

In one case, currently before the UK Supreme Court, a gay man from Cameroon was told he should relocate elsewhere in his country and be "more discreet" in the future. The man, only identifiable as "HT", was attacked by an angry mob back home which had seen him and his partner kissing in public. "Some people stopped me and said we know you are a gay man," HT told the BBC. He has been fighting removal from the UK for the past four years. "I cannot go back and hide who I am or lie about my sexuality," he says.

The Supreme Court’s decision will help establish a new standard for determining asylum status that is in line with international human rights guidelines. As Lord Rodger wrote in the ruling, "[To] reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the [Refugee] Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution."

At the core of the debate is the idea that sexual orientation, unlike race or religion, is a lifestyle choice that can be muted through self-control. Just like the woman who was raped because she wore a revealing dress, or, a few decades ago, the Black youth who got a beating because he should have known better than to drink from the wrong water fountain. Or, as UNHCR officer Alexandra McDowall told the BBC, "Would we have asked a Jew to hide in the attic to avoid being sent to the concentration camps?"

In the murky legal world of humanitarian asylum, it turns out that advocates could overturn a policy of dehumanizing interrogation simply by asking the right questions.

Photo: Creative Commons/Quinn Dombrowski