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United Kingdom

UK politicians and officials frequently emphasise the country’s proud history of supporting refugees while at the same time creating ‘a really hostile environment for illegal migration’. In practice, asylum is a part of broader immigration policy, and asylum and immigration are often conflated. As in other European countries, these are highly politicised areas and there has been a strong anti-immigrant media discourse that often fails to distinguish ‘genuine’ refugees from ‘economic migrants’ and ‘bogus asylum seekers’. Media reporting has been particularly negative at times with inaccurate stories like ‘SWAN BAKE: Asylum seekers steal the Queen’s birds for barbecues’.  Various new acts and regulations since 1999 have made this area both increasingly complex and increasingly restrictive.

In contrast to the restrictive nature of asylum and immigration measures, SOGI rights have developed in a positive direction over the last decades, with recognition of same-sex civil partnerships throughout the UK and same-sex marriage (though the latter is still not recognised in Northern Ireland). There is now legislation on SOGI-based hate speech and crime,and the Gender Recognition Act in 2004 gave people the legal right to change their gender. Both sexual orientation and gender identity are protected characteristics under the Equality Act 2010. But people continue to face discrimination, harassment, disadvantage and inequality in the UK on the basis of their SOGI, in a number of different policy areas. There is evidence that homophobic, biphobic and transphobic bullying remains a problem in schools and SOGI minorities are at greater risk of hate crime compared to heterosexual and cisgender people, with recorded incidences increasing over time.

Looking at SOGI asylum claims in the UK, 2010 is the year that stands out: this was when the message to SOGI asylum seekers changed from ‘go home and be discreet’ to ‘prove that you are gay’ as a result of the Supreme Court ruling in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31. In theory, after 2010 there was better protection for individuals fleeing persecution on the basis of their sexual orientation or gender identity; in practice, they found credibility had become the new obstacle to recognition of their claim. Following pressure from NGOs and frequent Parliamentary Questions, ‘Experimental’ Home Office statistics on sexual orientation-based asylum claims were eventually published. However, figures for gender identity-based claims remain unknown.

Inadequate data makes it difficult to assess trends in the treatment of SOGI minorities fleeing persecution to the UK. However, a number of the countries in the top ten for UK asylum claims are also countries that criminalise homosexuality – for example, Iran, Afghanistan and Sudan. SOGI asylum claimants who come from countries that penalise SOGI minorities are also those who are most likely to be detained and refused, including Nigeria and Pakistan. And there have been alarm bells raised about the treatment of SOGI asylum claimants detained, for example, the segregation of transgender detainees ‘for their own protection’ and abuse of lesbian women.

For asylum seekers who are granted international protection, and as is the case in Italy, there is no UK strategy for integration – however, Scotland and Wales both have national plans to support newly recognised refugees. SOGI refugees are likely to have particular need for support, as they may find it difficult to access migrant and refugee community groups in the same way as other individuals for fear of prejudice. And they will also be vulnerable to homophobia in the wider society, like any other member of a SOGI minority.

Looking forward, UK asylum policy is influenced by several important international and European instruments, including the Convention Relating to the Status of Refugees 1951, the European Convention on Human Rights 1950, and the EU Qualification Directive 2004/83/EC (the UK did not opt into the recast 2011 Directive).  While there is no suggestion of the UK reneging on its responsibilities under the Refugee Convention, the implications for asylum policy of the UK’s decision to leave the EU following the June 2016 referendum are as yet unclear.

More worrying is the later proposal by Prime Minister Theresa May to make leaving the European Convention on Human Rights a keystone of the 2020 general election campaign – a proposal that goes much further than the commitment to repeal the UK’s Human Rights Act under the previous Prime Minister David Cameron. Leaving the ECHR would mean UK asylum seekers would no longer benefit from the decisions of the European Court of Human Rights such as that in O.M. v Hungary in 2016, recognising a gay Iranian asylum seeker’s vulnerability. If the UK were also not bound by decisions of the Court of Justice of the European Union (CJEU), there would be far greater scope for arbitrary decision making in the UK in response to political and media pressures. Tracking the implications of Brexit and changes to the UK’s relationship with European partners will be an important part of the research.

More on the United Kingdom? Please, consult the SOGICA Database. You will also find the table ‘UK SOGI asylum case law‘ and a list ‘UK Visas and Immigration Country policy and information notes on sexual orientation and gender identity‘, which will be both updated as new case law and Country Policy and Information Notes are published.