When it comes to judging asylum cases relating to sexual orientation, the Home Office has a long list of ways to know if an applicant isn’t actually gay. Bisexuality seems to be an alien concept, as indeed is any sexual or romantic orientation that differs from being attracted solely to men or women. But that’s ok – they only really need to know about gay and lesbian people, because everybody else will probably be fine. Or at least I’m guessing that’s the logic. If there’s logic.
However, caseworkers have now been banned from asking applicants for explicit details about their sex lives. That also means that caseworkers can’t accept sexually explicit materials (such as photos or videos of sexual encounters) as proof. To be clear, it was never official government policy to ask for these, but people being told they needed to somehow prove who they were resorted to submitting this sort of evidence, desperate to be believed.
So how do you prove you’re LGB? Luckily, Home Office guidance and previous case law gives us an insight into what might do it.
Go to gay clubs and join LGBT+ groups
Yes, you might not have been in the UK long. You might not be familiar with the area you’re living in or have any networks to show you around. Given that you can’t work as an asylum seeker, you may not have any spare money. Given that the asylum seeking process is incredibly stressful, you might not have much energy or time. Coming from a place where you have feared persecution because of your sexual orientation, you might not be comfortable being out. You might not identify at all with the specific culture or vibe of queer spaces in the UK. Hell, you might just not really enjoy clubbing.
But still. The guidance indicates this is an area caseworkers should explore, so presumably it makes your case more credible. Indeed, the absence of engagement with the LGBT+ community affects judgements; in Khan v SSHD, it is noted that when the applicant “was free, in the United Kingdom, to actively pursue lesbian or bisexual activities she had not done so.” From the context, this seems to mean attending gay clubs and being part of lesbian groups.
Don’t go to gay clubs or join LGBT+ groups
Or not. The trouble is that you don’t actually have to be LGB to do these things. In ND v SSHD, although the applicant had reached out to the UK Lesbian and Gay Immigration Group, and the group supported their claim and appeared on their behalf, the judge deemed that UKLGIG’s representative could have been deceived, with the applicant taking actions simply to appear more credible. Therefore engaging with the LGBT+ scene is a risk because it looks like you’re trying too hard.
Don’t have any opposite-sex relationships
After all, who would have a relationship with somebody of the opposite sex if they weren’t heterosexual? Apart from somebody who was bisexual. Or somebody who only realised they were gay after already being involved with somebody of the opposite sex. Or somebody in a forced marriage. Or somebody who’s been living in fear of persecution due to their sexual orientation so therefore has been living a lie, including in their romantic and sexual lives because not being married is in itself suspicious.
Apart from them, I mean.
Don’t have children
See above. Both of these are in the guidance as things to explore. And they certainly have been relevant in cases; one woman was told it was impossible for her to be a lesbian because she had two children.
Embody the stereotypes
In a landmark case a few years ago, it was ruled that LGB people should not be subjected to a discretion requirement, with the expectation that they live in their country of origin while keeping their sexual orientation hidden. This was a huge step. However, even in this ruling, the judge said the following:
To illustrate the point with trivial stereotypical examples from British society: 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.
This seems to be an attempt to engage with the idea that sexual orientation is about more than sexual contact yet fails to acknowledge that the complexity arises from the individuality of identity, instead attempting to find another pigeonhole to use. If judges use stereotypes as touchstones, this implies that LGB men and women will have more difficulty in achieving success with their cases if they are not easily and visibly identifiable, in line with crude generalisations used in the UK.
Therefore it isn’t surprising that although the guidance warns against using stereotypes, cases include commentary on appearances of applicants. One unsuccessful applicant “agreed she did not dress mannishly: she was a pretty girl…who dressed like a girl” – and thus presumably was not credible enough as a lesbian or bisexual woman.
The photo is by Katja Hasselkus and is used under a creative commons licence. It shows an orange cocktail in a tall class, with a cherry and orange garnish and two blue and white striped straws. The background is sandy at the bottom and blue at the top, but out of focus.