Human Rights Obligations in Respect of LGBT Asylum Claims
A Critical Assessment of UK Law and Practice
Mathilde Beaufort
Master’s Thesis in International and European Law: Public International Law Track
University of Amsterdam
Supervisor: Dr. Rosanne van Alebeek
Abstract
This thesis analyses the United Kingdom’s obligations under EU law and the ECHR with regard to asylum claims on the ground of sexual orientation. It then proceeds to assess the compliance of the UK with these obligations in the context of immigration detention of LGBT asylum seekers.
It comes out from the legal framework that the primacy of the ECHR human rights framework on matters related to asylum claims, is well established. Further, it becomes clear that the ‘particularly vulnerable group’ concept is crucial in the specific context of asylum claims on the basis of sexual orientation. The importance of the notion of concealment is also highlighted. In relation to the assessment of compliance of UK law and practice with the obligations set out in the legal framework, in the context of immigration detention of LGBT asylum seekers, dysfunctions are uncovered, impacting the human rights protection of LGBT asylum applicants, in particular of article 3 of the European Convention of Human Rights. Most importantly, it is concluded that LGBT asylum seekers are not fit for detention, due to their increased vulnerability.
Contents
Introduction………4
Asylum Claims on the Ground of Sexual Orientation in the UK: Legal Framework under EU Law and the ECHR………7
Chapter 1 – Historical Development and Specificities of the UK……….7
Chapter 2 – The Relationship between EU law and the ECHR………....10
Chapter 3 – Accession of Refugees to the Territory of the UK………11
Chapter 4 – Asylum on the Ground of Sexual Orientation in the UK………...…...13
I – Reception and Living Conditions………13
II – Immigration Detention………...17
III – Asylum Claim Examination………..19
Compliance with EU Law and the ECHR: Assessment of UK Law and Practice in the Context of Immigration Detention………25
Chapter 1 – Assessment of Compliance………...26
Chapter 2 – Recommendations……….29
General Conclusion………30
Introduction
Lesbian, gay, bisexual and transgender (LGBT) asylum seekers leave their country looking for a better, safer life. They are fleeing persecutions, serious violations of human rights, threats to their lives and sometimes the most harrowing situations imaginable. Leaving a whole life behind can be a traumatic experience, one that feels isolating as it often leaves them without a support network such as family, friends and colleagues. For that reason, it is of the upmost importance for the law to be a helpful tool rather than another burden for asylum seekers to bear. This can be rendered possible through a legal framework that is implemented correctly and complied with by States.
The European Union (the EU) received 650,000 first-time asylum claims in 2017 as compared to almost twice that number in 2016.1 Needless to say it is a vital requirement for the EU to have a developed set of rules governing the matter. The Common European Asylum System (CEAS) does just that.
The principle of non-refoulement is the cornerstone of asylum and refugee law.2 It ensures the protection of human rights as fundamental as the right to life or the protection from torture, inhuman or degrading treatment or punishment by prohibiting the removal of an individual to a country where those rights would be violated.3 There are a number of grounds on which to claim asylum, in order to escape such human rights violations. It includes sexual orientation. EU law provides for a list of reasons for persecution among which membership to a “particular social group”, as mentioned in article 1(A)(2) of the 1951 Refugee Convention4, and details its
characteristics such as “a particular social group might include a group based on a common characteristic of sexual orientation”.5 This was elaborated upon in Joined Cases 199/12,
1 Eurostat, “650,000 first-time asylum seekers registered in 2017” (2018)
< https://ec.europa.eu/eurostat/documents/2995521/8754388/3-20032018-AP-EN.pdf/50c2b5a5-3e6a-4732-82d0-1caf244549e3> accessed on 4 September 2018.
2 UN High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, November
1997.
3 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137, article 33.
4 Ibid, article 1.
5 European Union: Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 30 September
200/12 and C-201/12. The CJEU, ruling on the Asylum Qualification Directive6, found that
homosexual individuals form a particular social group.7
For such a claim to succeed, it must be proven that the asylum seeker is “reasonably likely” to suffer from acts of persecution from their country of origin, on the basis that they identify as LGBT. Establishing the asylum seeker’s sexual orientation is then essential for the principle of non-refoulement to apply. It is clear that there is an added dose of complexity to asylum claims when they are made on the basis of sexual orientation.
In the United Kingdom (the UK), there has been an ongoing discussion about the impossible standard of proof imposed on LGBT asylum seekers to prove their sexual orientation. How one proves one’s sexual orientation is a difficult enough question, but how does one prove one’s homosexuality when having had to hide it one’s whole life, in fear of the consequences in countries that violently repress LGBT people? In the UK, the difficulty also comes from the side of the decision-makers and their stereotypical expectations of what homosexuality is.8 This is only the tip of the iceberg, as research has shown threats to several human rights during the process of LGBT individuals’ asylum claims in the UK.9
Not only are LGBT people a vulnerable minority in a vast majority of the world, but their risk of being discriminated against and to experience violations of their human rights are multiplied when they are asylum seekers. The increased vulnerability of this group of people led me to make it the focus of my thesis.
This thesis maps and analyses the obligations of the UK under EU law and the European Convention on Human Rights (ECHR) in respect of asylum claims on the ground of sexual orientation. It then goes on to examine whether the United Kingdom complies with its obligations under EU law and the ECHR in the specific context of immigration detention of LGBT asylum seekers. Zooming in on immigration detention allows us to understand the most important human rights-related issues that LGBT asylum seekers face. Where research led to
6 Ibid.
7Joined Cases C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v X, Y and Z v Minister voor Immigratie en Asiel [2013], EU:C:2013:720, para 48.
8 John Vine, Independent Chief Inspector of Borders and Immigration found “some stereotyping of applicants in
about a fifth of substantive interviews” see John Vine, An Investigation into the Home Office’s Handling of Asylum Claims Made on the Grounds of Sexual Orientation (March-June 2014), p.3.
9 UKLGIG, Still Falling Short: The standard of Home-Office decision-making in asylum claims based on sexual
orientation and gender identity (July 2018); C. L. Bachmann, No Safe Refugee: experiences of LGBT asylum seekers in detention (Stonewall and UKLGIG 2016).
identifying issues of non-compliance of UK law and practice with EU law and the ECHR, the thesis formulates recommendations for improvement of the protection of human rights. An inquiry into compliance to the law calls for the presentation of the existing legal framework governing claims to asylum on the ground of sexual orientation. The first part of this thesis, providing for an explanation on the relation between EU law and the ECHR, lays down the obligations of EU Member States, and more specifically of the UK, under EU law and the ECHR regarding LGBT asylum seekers. That is to say, obligations regarding reception, living conditions and the asylum process itself. The fact that the UK is a selective participant in the CEAS and the impact it has on the obligations the UK is bound to under EU law, will be explored10, along with human rights protection of asylum seekers throughout the asylum process. The thesis provides for a detailed view of the UK’s obligations under the ECHR regarding LGBT asylum seekers.
The second part of the thesis provides for an assessment of the compliance of the UK with its obligations as set out in the first part, in the context of immigration detention of LGBT asylum seekers as part of the wider theme of reception and living conditions. It first deals with the inquiry into compliance and moves on to provide recommendations. Research shows that a number of human rights are violated, or under the threat of potential future violations. This is due to this inappropriateness of detention for LGBT asylum seekers as a particularly vulnerable group, as well as the improper attitude of detention officers in detention centres.
The third and last part is built on a summary of the previous parts and provides general conclusions. It revisits the crucial findings of the research and leads to the conclusion that, although the UK is on the way to better protection of the human rights of LGBT refugees, it needs to protect them better by recognising that they are unfit for immigration detention, due to their particular vulnerability.
As regards methodology, the first part is descriptive. It serves the purpose of exposing the legal framework that applies to asylum claims made on the ground of sexual orientation and is done through description of applicable provisions. The second part is evaluative as it is an inquiry into the UK’s compliance to its obligations. Some advisory elements are also incorporated in this part in the form of recommendations to improve the UK’s practice in the field of asylum claims on the ground of sexual orientation in the specific topic of immigration detention.
10 Mr Robert Goodwill (Minister of State for Immigration), European Union opt-in decision: Asylum measures,
It appears necessary to explain the choice of the use of the acronym LGBT throughout the thesis even though the focus is on issues related to sexual orientation rather than on gender identity. I chose to use the acronym LGBT because some of the issues uncovered in relation to the sexual orientation of an asylum seeker also apply to situations related to transgender asylum seekers. The thesis’ main sources include EU law on asylum that applies to the UK including relevant case law from the CJEU; the ECHR and relevant case law from the European Court of Human Rights (ECtHR); reports produced by charities and organisations such as the UK Lesbian & Gay Immigration Group (UKLGIG), Stonewall and the Asylum in Europe11 that are first hand witnesses of the situation in practice, of dysfunctions and noncompliance and their impact on LGBT asylum seekers’ human rights; and relevant literature.
Asylum Claims on the Ground of Sexual Orientation in the UK:
The Legal Framework under EU law and the ECHR
The purpose of this Part is to establish the EU law and ECHR legal framework governing asylum claims on the ground of sexual orientation in the UK. This can only be done with a full understanding of the historical developments of asylum law in the EU and of the specificities of the UK (Chapter 1). Further, the legal framework involves two distinct legal systems, the EU and the ECHR, their relationship must be explained (Chapter 2). The rules governing the arrival of refugees on the territory of the UK, right before they submit asylum claims will be developed (Chapter 3). The last chapter deals with the UK’s obligations, under EU law and the ECHR, from the moment an asylum claim on the basis of sexual orientation is made, until a decision is issued by the Home Office (Chapter 4).
Chapter 1 – Historical Developments and Specificities of the UK
With the adoption of the non-binding Universal Declaration of Human Rights (UDHR)12 by the United Nations General Assembly (UNGA) on 10 December 1948 came the proclamation of the right to asylum.13 This provided momentum for the development of refugee law, and more
specifically for the adoption of the 1951 UN Convention relating to the Status of Refugees (‘Refugee Convention’). The Convention provides for an international overarching framework
11 N 9. See also Asylum Information Database, Country Report: United Kingdom, 2017 update. 12 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR). 13 Ibid, article 14(1).
on the question of refugees, starting with the definition of the term “refugee” in article 1(A)(2) according to which a refugee is an individual that is unwilling or unable to go back to their country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.14 But the Refugee
Convention’s most crucial contribution to refugee law is the principle of non-refoulement, the importance of which was further confirmed through its recognition as customary international law.15. Pursuant to article 33(1), “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. »16 LGBT individuals can claim asylum on the ground of “membership to a particular social group” as they have been recognised to form such a group.17
In the EU, article 78(1) of the Treaty on the Functioning of the European Union (TFEU) 18 advocated for the development of the CEAS, insisting on the overarching status of the Refugee Convention and placing compliance with the principle of non-refoulement at the centre of any subsequent EU asylum law development. The establishment of the CEAS took place in two phases. According to K. Hailbronner and D. Thym the first phase of the CEAS remains “limited to minimum [protection] standards” and “it focused on vertical policy transfers with the EU legislature emulating practices at national level and spreading them across Europe.”19 The
objective of the second phase of the CEAS was to further harmonise Member States’ national asylum law on the basis of high protection standards.20 The UK is a selective participant in the
CEAS, it is bound to certain EU rules adopted in the first phase, namely the Asylum Reception
14 N 3.
15 Declaration of States parties to the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees,
Ministerial Meeting of State Parties, Geneva, Switzerland, 12-13 December 2001, UN Doc. HCR/MMSP/2001/09, 16 January 2002.
16 N 3, article 1(A)(2).
17 See European Union: Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on
Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 30
September 2004, OJ L. 304/12-304/23; 30.9.2004, 2004/83/EC, article 10(d) (‘Qualification Directive’). See also Joined Cases C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v X, Y and Z v Minister voor
Immigratie en Asiel [2013], EU:C:2013:720, para 48.
18 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01, article 78(1).
19 Legal Framework for EU Asylum Policy, Kay Hailbronner and Daniel Thym in: Kay Hailbronner and Daniel Thym
(eds.), EU Immigration and Asylum Law. Commentary, 2nd edition (C.H. Beck/Hart/Nomos, 2016), p.1025.
20 European Council, The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens,
Conditions Directive21, the Asylum Qualification Directive22, the Asylum Procedure
Directive23 and the Eurodac Regulation (EC) No 2725/200024 but chose to stay out of the
second phase apart from the Dublin III Regulation25 (‘Dublin III Regulation’). The UK’s
opt-out of the second phase of the CEAS impacts its obligations under EU law. Past the minimum standard of protection required by the first phase instruments of the CEAS, the UK retains a degree of latitude in the implementation of its obligations under EU law in the field of asylum law. Although, the first phase of legislation harmonisation was ‘protection-oriented’ and was based on a ‘human rights approach’, negotiations did not result in the level of harmonisation initially expected, and States retained a degree of discretion in many aspects of the minimum standards, to the detriment of effective human rights protection.26 The Charter of Fundamental Rights of the European Union (CFR)27, which came into force in 2009, could be a useful instrument to counter the human right underachievement of the CEAS’ first phase. But in the case of the UK, it is uncertain what the legal effect of the CFR is, since it secured a protocol related to the Charter28. It remains unclear whether it is an opt-out of the Charter or whether it is an interpretative protocol which would entail limited legal effect of the CFR in the UK. This is an issue which is not raised with regard to the ECHR’s legal effects in the UK. The UK is a party to the Convention, and is therefore legally obliged to protect the rights contained in it. The UK parliament incorporated these rights into UK law through the adoption of the Human Rights Act in 1998 which came into force in 2000. As a result, a person can seek a remedy in
21 European Union: Council of the European Union, Council Directive 2003/9/EC of 27 January 2003 Laying Down
Minimum Standards for the Reception of Asylum Seekers in Member States, 6 February 2003, OJ L. 31/18-31/25; 6.2.2003, 2003/9/EC.
22 N 5.
23 European Union: Council of the European Union, Council Directive 2005/85/EC of 1 December 2005 on
Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 2 January
2006, OJ L 326; 13 December 2005.
24 European Union: Council of the European Union, Council Regulation (EC) No 2725/2000 of 11 December 2000
Concerning the Establishment of 'Eurodac' for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 11 December 2000, OJ L 316; 15 December 2000, pp.1-10.
25 Council of the European Union, Regulation (EU) No 604/2013 of the European Parliament and of the Council of
26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 29 June 2013, OJ L. 180/31-180/59.
26 For instance, “provisions had been agreed allowing Member States to deny asylum seekers support, and leave
them destitute during the reception phase, unable to access social assistance, health care, employment and integration programmes.” Myrthe Wijnkoop, “Human Security and CEAS: bringing human rights into the centre
of the EU’s asylum policies” in Claudio Matera and Amanda Taylor (Eds.) “The Common European Asylum System
and human rights: enhancing protection in times of emergencies” (CLEER 2014/7), p.41-43.
27 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02. 28 Consolidated version of the Treaty on the Functioning of the European Union - PROTOCOLS - Protocol (No 30)
on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, OJ C 115, 9.5.2008, p. 313–314.
British courts for violations of Convention rights, and if it does not prove effective, the individual can take their case to the ECtHR. It resulted from these considerations that a legal framework focused on the ECHR and on CEAS instruments applicable in the UK was the most appropriate to my research. Where EU law provides for a legal framework governing the asylum claim process in the UK, the ECHR ensures simultaneous effective human rights protection for asylum seekers. It appears necessary to clarify the relationship between both legal systems, to better understand the meaning and effect of their interactions in the asylum claim sphere.
Chapter 2 - The Relationship between EU Law and the ECHR
The EU is not a party to the ECHR. However, it seems that it eventually will accede to the Convention as implied by article 6(2) of the Treaty on European Union (TEU)29 which grants the EU competence to do so. On the other side, article 59(2) ECHR states that “The European Union may accede” to the Convention.30 The road to accession is currently a deadlock,
following Opinion 2/13 in which the CJEU rejects EU’s accession to the ECHR.31 Although they are not legally linked, the EU and the ECHR closely interact
Article 6(3) TEU states that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms […] shall constitute general principles of the Union's law.”32This provision results in the Convention being established as
the “minimum standard for the protection of fundamental rights in the EU”.33The natural consequence is the use, by the CJEU, of ECtHR case law as reference. Article 53(2) of the CFR codifies this practice, creating a duty for rights of the Charter that are also found in the ECHR to be interpreted similarly, “the meaning and scope of those rights shall be the same as those laid down” by the Convention.34 It does not make ECtHR case law binding, but the
29 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01, article 6(2).
30 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, article 59(2).
31 Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.
32 n 29, article 6(3).
33 Tobias Lock, The European Court of Justice and International Courts (OUP 2015), Chapter 4, p.169. 34 N 27, article 53(2).
interpretation should be based on a dynamic reading of the Convention, which entails relevance of ECtHR case law.35
Since all Member States of the EU are parties to the Convention, a conflict of norms can arise. Article 351 TFEU36 states that treaties concluded before 1 January 1958 or before accession of the Member State, are not affected by the EU treaties. Since the ECHR was concluded in 1950, it prevails whenever conflict with EU law would arise.
Overall, both courts closely cooperate resulting in consistency in their case law as well as reinforcing the legitimacy of rules on the protection of fundamental rights in Europe.
Chapter 3 - Accession of refugees to the territory of the UK
Article 18 of the CFR lays out the right to asylum. The article specifies that this right must be guaranteed “in accordance with the TEU and the TFEU.” 37 For this right to be able to be exercised, EU law has set up a system to determine the State responsible for the examination of asylum applications by third-country nationals and stateless persons; the Dublin system. Article 1 of the Dublin III Regulation states that the Dublin system “lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (‘the Member State responsible’).”38 Article 3(1) adds that the Member State
found to be the Responsible State has to examine all applications for international protection for which it is the Responsible State.39 It entail that the UK is not legally allowed to remove individuals claiming asylum on the ground of sexual orientation whose situations fall under the scope of article 3(1) Dublin III Regulation.
Exceptions exist when the determining State – the State on the territory of which the Responsible State is being determined – has reasons to believe that “there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union […]”40. Article 3 ECHR is also relevant
35 n 33, p.180-182. The CJEU also impacts the ECtHR in two ways: “CJEU’s fundamental rights case law influences
the interpretation of such rights by the ECtHR; The ECtHR’s contributes to the enforcement of the CJEU’s decisions.” See n 33 p. 212. 36 n 18, article 351. 37N 27, article 18. 38 N 25, article 1. 39 Ibid article 3(1). 40 Ibid article 3(2).
in such situations given its content similar to that of article 4 CFR.41 Article 3(2) of the Dublin
III Regulation gives two solutions, either for the Determining State to look for another possible Responsible State or, when that is not possible, for the Determining State to become the Responsible State. This exception acts as a positive additional safeguard for the protection of asylum seekers’ human rights. To follow this rule, States must exercise an assessment of the human rights conditions in the country they are looking to transfer asylum seekers to. This was recently illustrated by a decision of 4 December 2018 of the Immigration and Asylum Chamber of the UK Upper Tribunal which dealt with the removal of asylum seekers to Italy pursuant to the Dublin Regulation.42 The Tribunal extensively examined the reception conditions for asylum seekers in Italy and concluded that they may give rise to violations of article 3 ECHR “depending on the nature and extent of a person’s vulnerability”.43 By relying on article 3 ECHR rather than on article 4 CFR, the Tribunal contributes to confirm the primacy of the ECHR human rights system over the EU human rights system, in the UK. Similarly to the Dublin exception set out above, the ECtHR itself deals with cases of removal of asylum seekers to countries that could or have violated their human rights. In M.S.S. v. Belgium and Greece44, the ECtHR found Belgium to be in violation of article 3 ECHR for transferring an asylum seeker to Greece.45 Further, it linked the Dublin Regulation to the Convention stating that, when applying the Dublin Regulation, EU Member States “must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention.”46 In stating so, the ECtHR establishes
the ECHR as the key human rights protection instrument for asylum seekers in the EU. The importance of the M.S.S. v. Belgium and Greece judgment also lies in the Court adding asylum seekers to the list of vulnerable groups of individuals.47 The weight of the notion of
vulnerability in asylum law keeps growing. It entails consequences specific to groups of individuals recognised as vulnerable. This notion also translates at the domestic level, as illustrated by the above-mentioned 2018 UK Upper Tribunal decision which recognises that
41 N 30, article 3.
42R (on the application of SM & Others) v Secretary of State for the Home Department (Dublin Regulation – Italy)
[2018] UKUT 00429 (IAC)
43 Ibid para. 323.
44 ECtHR – M.S.S. v. Greece and Belgium [GC] Application No. 30696/09 (2011). 45 Ibid, paras. 360; 410.
46 Ibid, para. 342. 47 Ibid, para. 251.
specific vulnerabilities have an impact on an individual’s human rights protection.48 The role
of ‘vulnerability’ in the process of an asylum claim on the ground of sexual orientation will be elaborated upon in the next chapter in the wider context of the legal framework governing the asylum claim process.
Chapter 4 – Asylum on the Ground of Sexual Orientation in the UK
The purpose of this chapter is to provide a detailed overview of the legal framework governing the asylum claim process in the UK, from the moment the claim is made until the issuing of the decision. Two aspects of article 3 ECHR will be developed: The duty of care it imposed on Member States due to the vulnerability of LGBT asylum seekers and the non-refoulement aspect. First, the obligations that flow from article 3 in terms of reception conditions (section I), and more in particular immigrations detention (section II) will be developed. I will then turn to the non-refoulement aspect, where you will be zooming into the quandary of determination and proof of LGBT-status in the asylum process (section III). These developments will be complemented by EU law where it adds to the ECHR framework.
I. Reception and living conditions
i. Under EU Law
The Asylum Reception Conditions Directive49 provides for the reception and living conditions framework under EU law. Article 13 of the Directive provides for an obligation to ensure the availability50 as well as the legal existence of a right to material reception conditions and healthcare51 as defined in article 2(j) of the Directive52. The definition of “material reception conditions” sets a standard to be met in order to reach compliance to the definition, namely, basic necessities. Article 13(2) of the Directive further specifies that these conditions must be “adequate for the health of applicants”.53 The Reception Conditions Directive also elaborates
on the situation of asylum seekers with special needs. Article 17(1) requires States to take into account the “specific situation of vulnerable persons” in their domestic legislation implementing “the provisions of Chapter II relating to material reception conditions and health
48 The threshold of seriousness to trigger article 3 ECHR could be reached in a situation involving a vulnerable
individual, even though it might not have been reached in a similar situation involving a non-vulnerable individual. See N 42, para. 323.
49 N 21. 50 Ibid, 13(1). 51 Ibid, 13(2). 52 Ibid, 2(j). 53 Ibid, 13(2).
care”. It proceeds to enumerate non-exhaustively, as the wording “such as” implies, categories of persons that fall under the term “vulnerable persons”. It can be argued that LGBT asylum seekers fall under the term “vulnerable persons” as used in the article.54 Although it is not
specified what measures should be taken by States to be in line with article 17(1) of the directive for vulnerable LGBT asylum seekers, one could deduct that they range from, inter alia, specific accommodation, specific attention and security, non-discrimination mechanisms and legislation.55 The CJEU, ruling inter alia on article 17 of the Reception Conditions Directive on the situation of a vulnerable asylum seeker, held that Member States must make sure that no “real and proven risk” of the applicant suffering inhuman or degrading treatment within the meaning of article 4 CFR, exists.56 The UK, in order to comply with its obligation under EU law regarding reception and living conditions of LGBT asylum seekers – vulnerable applicants – must ensure that no real and proven risk of a violation of article 4 CFR exists. As previously mentioned, it is debated what legal effects the CFR has in the UK. The obligations with regard to reception and living conditions for LGBT asylum seekers under article 3 ECHR, identical in content to article 4 CFR, should be elaborated upon.
ii. Under the ECHR
Article 3 ECHR57 is the key provision regarding matters of reception and living conditions for asylum seekers. The standard of reception and living conditions in the UK must be high enough so that asylum seekers are not exposed to situations of inhuman or degrading treatment. ECtHR case law provides for detailed guidance on the components of such a standard. In V. M. and
Others v. Belgium58, the Court relies on the minimum standard laid down by the Asylum Reception Conditions, namely, that of basic necessities. Further, the ECtHR relies on its earlier case law to affirm that “the responsibility of the State might be engaged under Article 3 in respect of treatment where an applicant, who was wholly dependent on State support, found him or herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity.”59 This duty of care attached to article 3 is rendered stricter
54 This interpretation stems from a reasoning by analogy taken out of the following research: European Union
Agency for Fundamental Rights, Current migration situation in the EU: Lesbian, gay, bisexual, transgender and
intersex asylum seekers (Publications Office of the European Union, March 2017), 10. I used the interpretation
of article 21 of Asylum Reception Conditions Directive 2013/33/EU, which is the updated version of article 17 of Asylum Reception Conditions Directive 2003/9/EC given their similar wording.
55 See N 21 for a comprehensive account of reception and living conditions obligations of the UK under EU law. 56 CJEU, C-578/16 PPU, C.K. and Others, 16 February 2017.
57 N 30, article 3.
58 ECtHR, V.M. and Others v. Belgium, Application No. 60125/11, 7 July 2015. 59 Ibid, para. 134.
by the particular status of asylum seekers. The Court holds that “special protection” must be afforded to asylum seekers, due to them belonging to “a particularly underprivileged and vulnerable population group”60.
The ‘vulnerable group’ concept emerged in 2001 ECtHR case law.61 The meaning of the
concept was already understood to be “belonging to a group […] whose vulnerability is partly constructed by broader societal, political, and institutional circumstances […].”62 The ECtHR gradually added to the list of vulnerable groups, including asylum seekers63, and developed the consequences attached to such a status. It transpires from ECtHR case law that the notion “addresses and redresses different aspects of inequality in a more substantive manner”64, which,
in the context of article 3 ECHR, involves specific positive obligations. In order to provide substantive equality in the human rights protection of every individual, the recognition of “vulnerable groups” by the Court implies and has proven to entail “special consideration to” or “special protection of” the vulnerable groups’ “specificities” and “needs.”65 In relation to article
3 ECHR, the concept of vulnerability acts as a “magnifying glass”. The seriousness of the ill-treatment inflicted to an applicant is emphasised when the applicant belongs to a vulnerable group. In the M.S.S. case, when the Court attached significance to two short periods of detention of the asylum seeker, relying on his particular vulnerability stemming from his migration journey and previous traumatic experiences as an asylum seeker. The magnifying glass aspect of vulnerability as developed by the ECtHR resulted in the threshold of severity of article 3 ECHR being reached.66 The UK must pay specific attention to the specific needs of particular
social groups and when needed, adjust reception and living conditions, to comply with its obligations under the Convention.
In the case of LGBT asylum seekers, the concept of ‘vulnerable groups’ raises the question of the impact of being LGBT in addition to being an asylum seeker on the individual’s human rights, and whether it adds a layer of vulnerability in the meaning of the term developed by
60 Ibid, para. 136. See also N 44, para. 251.
61 ECtHR, Chapman v. The United Kingdom, Application No. 27238/95, 18 January 2001.
62 Lourdes Peroni, Alexandra Timmer; Vulnerable groups: The promise of an emerging concept in European
Human Rights Convention law, International Journal of Constitutional Law, Volume 11, Issue 4, 1 October 2013, p. 1063.
63 See N 60. 64 N 62, p.1074.
65 Ibid, p. 1076. See also Chapman v. United Kingdom (GC), 2001-I; 33 Eur. H.R. Rep. 18, para. 96 (2001);
M.S.S. v. Belgium and Greece, App. No. 30696/09, 53 Eur. H.R. Rep. 2, para. 251 (2011); and Yordanova v. Bulgaria, App. No. 25446/06, 24 April 2012, paras. 128-129.
ECtHR case law. According to L. Peroni and A. Timmer it is understood from ECtHR decisions that there are three characteristics to a ‘particularly vulnerable group’, namely, that it is “relational, particular and harm-based”. The notion of vulnerability is relational in that it is viewed from the angle of the individual’s “wider social circumstances” and is shaped by “social, historical, and institutional forces”. Vulnerability as developed by the Court is also ‘particular’ in the sense that “the Court’s vulnerable subject is a particular group member”.67 The Court does not deny the universality of the notion of vulnerability68, it adds to it by recognising the higher vulnerability of individuals belonging to particularly vulnerable groups, the vulnerability of which stems from “specific group-based experiences”.69 The last characteristic developed in ECtHR case law is the focus on harm with “(historical) prejudice and stigmatization” as indicators.70 In light of these characteristics, it is reasonable to argue that LGBT individuals constitute a particularly vulnerable group as understood from above-mentioned ECtHR developments. LGBT asylum seekers would therefore belong to two distinct vulnerable groups, increasing their level of vulnerability from a human rights point of view. Where certain reception and living conditions might be adapted to asylum seekers in general, they might not be for LGBT asylum seekers. The UK must take this increased vulnerability into account in order to comply with its obligations under the Convention. For instance, in certain situations it might be necessary to put LGBT asylum seekers in separate accommodations to avoid situations of bullying, abuse or violence by other asylum seekers.71 It stems from the Peroni and Timmer’s
analysis of the Court’s case law that taking the vulnerability of the applicant into account is a procedural requirement.72 This notion of vulnerability should also be understood from the
specific context of immigration detention. The next Chapter will provide for an overview of the legal framework regarding immigration detention in the UK.
II. Immigration Detention
i. Under the ECHR
67 N 62 p.1064.
68 Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. &
Feminism (2008–2009), 1.
69 N 62, p. 1064.
70 Ibid, p. 1065. See Alajos Kiss v. Hungary, App. No. 38832/06, May 20, 2010 in which the Court relies on historical
considerable discrimination of people with mental disabilities to establish them as a particularly vulnerable group.
71 The idea was put forward in The Netherlands. See “Dutch back separate accommodation for gay and Christian
asylum seekers” https://www.dutchnews.nl/news/2016/03/dutch-back-separate-accommodation-for-gay-and-christian-asylum-seekers/ accessed on December 28 2018.
Article 5(1)(f) ECHR which lays down the right to liberty and security73 provides for a legal
ground for the detention of asylum seekers as an exception to this right. It states that detention is permitted to, either prevent “unauthorised entry” into a State, or in the case of expected “deportation or extradition”. As regards “unauthorised entry”, the ECtHR in Saadi v. United
Kingdom74 held that “until a State has “authorised” entry to the country, any entry is
“unauthorised” and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so can be, without any distortion of language, to “prevent his effecting an unauthorised entry”. The ECtHR also ruled on the situation where a State has enacted legislation authorising the legal entry on its territory of individuals looking to obtain asylum. In Suso musa v. Malta75, the ECtHR held that in such a case, detention of an individual
for “unauthorised entry” as understood from article 5(1)(f) ECHR could raise legal issues. As regards conditions of detention, the ECtHR established “respect for human dignity” of the detainee as a general principle governing the situation of any individual in detention.76 In the case where LGBT asylum seekers are legally detained in immigrant detention centres, the ECtHR provides for additional requirements for the UK to fulfil. In O.M. v. Hungary77 the Court held that authorities must “exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place.” To do so, they must consider “the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons […]”. The importance of this decision lies in the Court recognising LGBT individuals as belonging to a particularly vulnerable group78 which led it to attach particular requirements for States in the context of
detention. The Court relied on the fact that the vulnerability of LGBT asylum seekers in detention failed to be taken into account by the Hungarian authorities to find a violation of article 5(1) ECHR79. Indeed, it held that, due to the vulnerable status of the LGBT asylum seeker, an individual assessment must be conducted by the State to assess whether the applicant would be safe in detention among other detainees. Most importantly, when assessing whether there are risks of violations of their Convention rights in detention, States must take into account
73 N 30, 5(1)(f).
74 ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 65. 75 ECtHR, Suso Musa v. Malta, Application No. 42337/12, 23 July 2013.
76 ECtHR, Kudla v. Poland (Judgment) (2000) Application No. 30210/96, para. 94. 77 ECtHR, O.M. v. Hungary, No.9912/15, 5 July 2016, para 53.
78 Ibid, para. 53. 79 Ibid, para 54.
the specificities of particularly vulnerable groups of people, as that status impacts, for instance, the level of severity required for the threshold of article 3 ECHR to be met.80
The court further detailed the States’ obligations under the Convention in relation to individuals in detention. In Aleksanyan v. Russia it held that article 3 ECHR “requires that the health and well-being of detainees are adequately secured […].”81 This is illustrated in Slyusarev v. Russia where a violation of article 3 ECHR was established by the Court on the basis that a detainee was deprived of his glasses. It evidences the lowering of the threshold of severity required for a violation of article 3 as this deprivation did not further impair the sight of the individual in question, but it kept him from reading or writing normally, which the Court found sufficient to amount to a breach of article 3 ECHR.82
ii. Under EU Law
Article 7(3) of the Asylum Reception Conditions directive83 allows Member States to “confine an applicant to a particular place in accordance with their national law.” The provision leaves a wide margin of appreciation to the State for the implementation of this right. It broadly requires that this is “necessary” and “in accordance with their national law”. Article 13(2) of the Directive84 adds that, even in the case of detention, the material reception conditions standard must be met. Regarding documentation, article 6(2) of the Asylum Reception Conditions Directive85 provides for an exception, in the case of detention, to the requirement of paragraph 1 that the State must provide the asylum seeker with documentation asserting its status as an asylum seeker and confirming their right to be present on the territory. The Asylum Procedure Directive86 gives further guidance regarding detention of asylum seekers, from a procedural point of view. Article 16(2)87 on legal assistance and representation of asylum seekers makes it an obligation for Member States to permit asylum seekers in detention to receive legal advice or counsel from the person representing them. This may be limited in some situations such as those listed in the article, however it is clearly stated that “access by the legal adviser or other counsellor is not thereby severely limited or rendered impossible.” Article 18 of the Procedure
80 “Group vulnerability […] acts as a magnifying glass: the ill treatment caused to the applicant looks bigger
through the vulnerability lens” See N 56, p.1079. See also Pétin, J. (2016). Exploring the Role of Vulnerability in Immigration Detention. Refugee Survey Quarterly, 35(1), p. 103. See also ECtHR, Price v. the United Kingdom (Judgment) (2001) Application No. 33394/96, para. 24.
81 ECtHR, Aleksanyan v. Russia, Application No. 46468/06, para. 138. 82 ECtHR, Slyusarev v. Russia, Application No. 60333/00, para. 34. 83 N 21, article 7(3).
84 Ibid, article 13(2). 85 Ibid, article 6(2). 86 N 23.
Directive88 specifically addresses detention. In its first paragraph, it requires that asylum
seekers be detained for reasons other than the fact that they are asylum seekers, without giving any further details on what could be a legal ground for their detention. It adds, in the second paragraph, that there must exist a possibility for “speedy judicial review” for detained asylum seekers.
With regards to LGBT asylum seekers, immigration detention is not prohibited. However, as a vulnerable group of people89, the UK must fulfil additional requirements when deciding on their detention. When assessing the necessity and proportionality (core set of factors in deciding on the detention of an asylum seeker) of the detention of an LGBT asylum seeker, the UK must assess the reasonableness of it, in light of any potential special needs or considerations stemming directly from the vulnerability of the applicant.90 CJEU jurisprudence shows that the particular vulnerability of an individual entails that States must make a specific assessment prior to the taking of any asylum-related decision. This is so because, as previously explained, the seriousness of certain situations involving a vulnerable individual is emphasised and, therefore, more likely to trigger violations of their fundamental rights.91
The key obligation of the UK in relation to LGBT asylum seekers in detention is the appropriate assessment of their vulnerability to provide for detention conditions that are adapted and not in violation of article 3 ECHR. Whether LGBT asylum seekers are in detention or not, their claim for asylum has to be examined. The next part will provide for the legal framework of the examination of asylum claims, under EU law and the ECHR.
III. Asylum claim examination
i. Under the ECHR
For the prohibition of refoulement to apply to an asylum seeker claiming asylum on the ground of sexual orientation, the applicant must prove that they have or would suffer persecutions if returned to their country of origin. Under ECHR law, it must amount to a violation of article 3 ECHR.92 According to the key case of Ireland v. The UK, “Ill-treatment must attain a certain
88 Ibid, article 18.
89 See above, I – Reception and Living Conditions i. Under EU law, where the argument was made that LGBT
asylum seekers are fall under the “vulnerable people” category as understood from article 17 of the Reception Conditions Directive applicable in the UK.
90 N 21, article 17. 91 N 56.
92 See ECtHR, Chahal v. The United Kingdom, Application No. 22414/93; ECtHR, Saadi v. Italy, Application No.
37201/06 for precedents on the obligationnot to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment in the meaning of article 3 ECHR.
minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case”93
In the case of LGBT asylum seekers, the circumstances of the case include their membership to a particularly vulnerable group. The consequence of this requirement in practice is illustrated in the M.S.S. case, 94as mentioned earlier. It shows that the seriousness of the ill-treatment inflicted to an applicant is emphasised when the applicant belongs to a vulnerable group, the threshold of seriousness required for article 3 to be triggered is more likely to be attained, in the case of LGBT asylum seekers.
Interaction between EU law and the ECHR transpires from article 9(1)(a) of the Asylum Qualification Directive95 which mentions the ECHR. In setting the threshold for acts to amount to acts of persecution, the article states that any violation of “the rights from which derogation cannot be made under Article 15(2) of the ECHR” can automatically qualify as acts of persecution. Further, article 15(2) prohibits derogations to the rights protected by article 2 (right to life), article 3 (prohibition of torture), article 4(1) (prohibition of slavery) and article 7 (no punishment without law).96 It results that any derogation to these rights can be brought before the competent authorities by an asylum seeker as evidence of persecution. In relation to the assessment of the asylum seeker’s credibility and to the burden of proof, two ECtHR cases, namely, F.G. v. Sweden97 and J.K. and others v. Sweden, provide guidance.98 Two general rules
were developed. First, concerning the application for asylum and the provision of the documents and evidence required, the burden is, in principal, placed on the individual.99
Second, “it is the shared duty of an asylum-seeker and the immigration authorities to ascertain and evaluate all relevant facts of the case in the asylum proceedings”.100
The vulnerable status of LGBT asylum seekers stemming, inter alia, from historical prejudice, stigmatization and discrimination, it must be made mention of article 1 of Protocol No. 12 ECHR which provides for a general prohibition of. Paragraph 2 of that article is especially relevant to the examination of asylum claims made on the ground of sexual orientation as it states that “No one shall be discriminated against by any public authority on any ground such
93 Ireland v UK (1979-80) 2 EHRR 25, para 162. 94 N 44.
95 N 5, article 9(1)(a). 96 N 30, article 15(2).
97 F.G. v. Sweden, Application no. 43611/11, Council of Europe: European Court of Human Rights, 23 March 2016. 98 J.K. and Others v. Sweden, Application no. 59166/12, Council of Europe: European Court of Human Rights, 23
August 2016.
99 See N 97, para 125. 100 See N 98, para 96.
as those mentioned in paragraph 1.”101 It results from this provision that Home Office staff must
not discriminate LGBT asylum seekers during the course of the asylum claim process on any ground, and especially on the ground of their sexual orientation. Lastly, article 8 ECHR102
provides for the right to respect for private and family life. This provision, when applied to the context of the asylum claim examination of an asylum claim made on the ground of sexual orientation, entails an obligation for decision-makers not to engage in questioning that would be inappropriate and in violation of that right (e.g. sexually explicit questioning).
In relation to a potential refusal of the granting of asylum to an individual claiming asylum on the ground of sexual orientation, the ECtHR in M.E. v. Sweden103 held that concealment of sexual orientation in the case of a temporary return to the country of origin to avoid persecution would not amount to a breach of article 3 ECHR. This judgment is in line with ECtHR jurisprudence on the issue of concealment of sexual orientation.104 Judge Power Forde, in her dissenting opinion of the majority opinion in M.E. v. Sweden argues that “Such a requirement of forced reserve and restraint in order to conceal who one is, is corrosive of personal integrity and human dignity.”105 It is possible to argue that concealment of one’s sexual orientation as a justification for the rejection of an asylum claim on the ground of sexual orientation could still give rise to situations in violation of article 3 ECHR. In order to do so, one must turn to ECtHR case law related to domestic abuse. For instance, in Eremia v. The Republic of Moldova, the Court found that “the fear of further assaults was sufficiently serious to cause the first applicant to experience suffering and anxiety amounting to inhuman treatment within the meaning of Article 3 of the Convention”.106 To put this in the context of an LGBT asylum seeker claiming
asylum on the ground of sexual orientation, it can be argued that the concealing of their sexuality in an environment gravely hostile to LGBT individuals, fear of abuse, especially when abuse has taken place previously, could amount to inhuman treatment within the meaning of article 3 ECHR.107 This is a position supported by the CJEU. It will be further developed in the broader context of the legal framework for the examination of asylum claims made on the ground of sexual orientation, under EU law.
101 N 30, Protocol No. 12 article 1(2). 102 N 30, article 8.
103 ECtHR, M.E. v Sweden, Application No. 71398/12.
104 Spijkerboer, T. (2018). Gender, Sexuality, Asylum and European Human Rights. Law and Critique, 29(2), p.227.
See e.g. ECHR [2004] F. v United Kingdom, 17341/03; ECHR [2004] I.I.N. v the Netherlands, 2035/04.
105 N 103.
106 ECtHR, Eremia v. The Republic of Moldova, Application No. 3564/11.
107 See ECtHR, Campbell and Cosans v. The United Kingdom, Application No. 7511/76, para. 26 for a similar
ii. Under EU law
The Asylum Procedure Directive108 provides for procedural guidance applicable to all asylum applications. Chapters II and III of the Asylum Qualification Directive109 provides for a frame of reference on the assessment of applications of international protection.
First, within chapter II, article 4110 of the Directive develops guidance on the assessment of facts and circumstances. In particular, paragraph 3 details the information to be taken into account, namely, information on the country of origin “at the time of taking a decision on the application”, evidence presented by the applicant, several categories of information necessary to the potential establishment of a well-founded fear of persecution or of a real risk of suffering serious harm. Paragraphs 4 and 5 give further guidance on the assessment of facts and circumstances. Article 5111 provides for time consideration for the assessment of a well-founded fear of persecution or of the existence of a risk of suffering serious harm. Article 6112 lists the
possible actors of persecution or serious harm. Article 7113 gives guidance to assess whether sufficient protection is ensured, and by whom it can be provided. Lastly, Article 8114 States that international protection may not need to be provided if there is sufficient protection in a part of the applicant’s country of origin.
Within chapter III, the requirements to qualify as a refugee are outlined. Article 9115 lays down the first requirement, namely, acts of persecution, and further develops on it. Article 10116 concerns the reason for persecution, more broadly understood to be the legal ground on which the applicant is making the claim for international protection. This thesis being about individuals claiming asylum on the ground of sexual orientation, the provision of interest here is article 10(d) related to particular social groups. The Directive elaborates on the conditions required for particular social group to be recognised as such. Lastly, it needs to be established that the asylum seeker has a well-founded fear of persecution or that there is a real risk for them to suffer serious harm.
108 n 23. 109 N 5. 110 Ibid, article 4. 111 Ibid, article 5. 112 Ibid, article 6. 113 Ibid, article 7. 114 Ibid, article 8. 115 Ibid, article 9. 116 Ibid, article 10.
For the legal framework specific to asylum claims made on the ground of sexual orientation, one must turn to case law. In the UK, the leading case on the matter is HJ (Iran).117 It provides
for a four-stages test to be applied in the examination of all asylum claims on the ground of sexual orientation.118 Four questions must be answered:
1. Is it reasonably likely that X is gay [or LGBQ] or will be perceived to be gay [or LGBQ]?
2. Is there a real risk that gay men [or LGBQ people] would face persecution if they lived openly in X’s country of origin?
3. Would X in fact live ‘openly’ (or would X conceal X’s sexual orientation) if returned to the country of origin?
4. If the answer to question 3) is that X would conceal X’s sexual orientation, why would X do so?119
First, regarding question 1, the standard of proof applied is a ‘reasonable degree of likelihood’ or ‘real risk’. The asylum seeker must show that there is a ‘reasonable degree of likelihood’ that he/she is LGBQ. This also applies in cases where the potential persecutors perceive the applicant as LGBQ. Home Office decision-makers must base their decision on evidence provided by the asylum seeker, bearing in mind that the nature of evidence may vary from one case to another.120 The CJEU provided for relevant guidance in relation to stereotypes applied to LGBQ individuals. It held that the decision must not be taken based exclusively on such stereotypes.121 In another case, F v Bevándorlási és Állampolgársági Hivatal, the CJEU gave
clarifications related to the assessment of facts and circumstances. Although the court rules on the recast Qualification Directive, reasoning by analogy, it can be applied situations still governed by the Qualification Directive of 2004, applicable in the UK. The court found that the use of psychological expert reports is authorised to the extent that it is in accordance with EU law and the provisions of the CFR. These reports must not be binding and must not be the only basis for the assessment of facts and circumstances.122 The applicant must consent to these
117 HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31. 118 Ibid, paras. 82-83.
119 UKLGIG, Applying HJ (Iran) and HT (Cameroon) to Asylum Claims Based on Sexual Orientation (2018), p.4. 120 Ibid, p. 5.
121 Joined Cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014.
See para. 62 for justified reliance on stereotypes by decision-makers. See also SW (lesbians - HJ and HT applied) Jamaica CG [2011] UKUT 251 (IAC), 24 June 2011, for further guidance on the use of stereotypes in decision-making.
psychological tests.123 Finally, the court ruled on the illegality of the use of psychological
reports based on projective personality tests.124
In relation to question 2, ‘living openly’ implies a context where no degree of concealment is involved. Home Office decision-makers should base their assessment of the degree of persecution faced by LGBQ individuals in their country of origins on the available evidence, which is sometime limited. The CJEU provides some guidance on what does not fall under the scope of ‘persecution’. It finds that imprisonment, if it is “actually applied” is an act of persecution.125 Further, article 9(1)(a) of the Asylum Qualification Directive sets a threshold for acts to constitutes acts of persecution.126 They must be “sufficiently serious” so as to amount to a “severe violation of basic human rights”.127 The Court infers from this provision that
“legislation criminalising homosexual acts” does not reach the “level of seriousness necessary” to constitute persecution.128 Lastly, the court rules that the asylum seeker cannot be “expected to conceal his homosexuality in his country of origin in order to avoid persecution.”129
Now regarding question 3, according to the Supreme Court there are two possible answers: the applicant might “live openly and thereby be exposed to a real risk of persecution”, or they might “live discreetly and avoid persecution”.130 If the answer is the former, then the well-founded
fear of persecution of the applicant is established. The Supreme Court insists that Home Office decision makers can never require the individual to avoid persecutions by concealing their sexual orientation.131 In the case where the answer to question 3 is the latter option, the
decision-maker will have to move on to question 4 as set out in HJ (Iran)’s four-stages test.
In relation to question 4, the Supreme Court lays down to possible answers: Either the reason the applicant chose to conceal their sexual orientation is ‘simply’ because of social pressure or personal choice, or “that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man.”132 This is not to be misunderstood as meaning that if concealment of sexual orientation entails effective protection against persecutions, then the claim for asylum should be rejected. Rather, Supreme Court means that if one of the reasons for the applicant’s concealment of their sexual orientation
123 Ibid, para 53. 124 Ibid, para 71. 125 N 7, para 56. 126 N 5, article 9. 127 N 7, para 55. 128 N 7, para 58. 129 N 7, para 70-71. 130 N 117, para. 82. 131 N 117, paras. 64-65. 132 N 117, para. 82.
is to escape persecutions, then the well-founded fear of persecution is established and asylum can be granted. In relation to the standard of proof, it means that the applicant must show that there is a “real risk that one of the reasons why they would lie about or conceal their sexual orientation in their country of origin would be to avoid persecution.”133
It stems from the legal framework for asylum claims on the basis of sexual orientation under EU law and the ECHR, that the notions of vulnerability and concealment play a crucial role. In addition, the legal framework has demonstrated the primacy of the ECHR in the protection of LGBT asylum seekers’ human rights in the UK. These findings will be applied to the specific context of the detention of LGBT asylum seekers in order to assess the compliance of the UK with its obligations under EU law and the ECHR.
Compliance with EU law and the ECHR: Assessment of UK Law
and Practice in the Context of Immigration Detention
Charities and organisations in the UK, such as Stonewall and Asylum in Europe, have conducted research on immigration detention of vulnerable individuals, a category to which LGBT asylum seekers belong. Immigration detention has proven to be a challenge to the protection of LGBT asylum seekers human rights. In this part, findings of available research will be developed and linked to the legal framework in order to draw conclusions regarding human rights protection of LGBT asylum seekers in detention. Focusing on immigration detention provides for a good reflection of the weight that vulnerability adds on the UK’s obligations for the protection of LGBT asylum seekers’ human rights. First, the thesis will provide for an inquiry into the compliance of the UK with its obligations (Chapter 1) resulting in an overview of the distance left for the UK to reach comprehensive protection of human rights for LGBT asylum seekers in detention. Then, recommendations will be provided, based on the findings of Chapter 1 (Chapter 2).
Chapter 1 – Assessment of Compliance
Despite ECtHR case law and EU obligations, LGBT individuals are not recognised by UK law as a vulnerable group, with regard to detention.134 It means that the adequate assessment of
LGBT asylum seekers’ specific needs does not take place. Although Home Secretary S. Javid, in a statement to the Parliament, welcomed the Adults at Risk Policy as a tool that contributes to the improvement of conditions in immigration detention centres, by assessing the appropriateness of the detention of vulnerable people,135 research shows that this identification mechanism is not effective.136 A report from the Asylum in Europe Organisation confirms it and adds that “following a review of the treatment of vulnerable people in detention”137, it was
expected that the UK would develop appropriate guidance as a response, in order to reduce the number of vulnerable individuals detained.138 But it was not the case, in fact, the UK’s Guidance on the Adults at Risk policy limits the grounds on which to be considered a vulnerable individual to either having experienced prior traumatic event or suffering from a condition. This weakens the overall protection of LGBT asylum seekers’ human rights in detention as the scope of the Policy is not extended to LGBT individuals who are, however, a recognised vulnerable group of individuals, by ECtHR case law due to their status as asylum seekers and to their membership to the LGBT community. The vulnerability criteria’s impact on scope and proportionality analysis in relation to the threshold of severity required to trigger article 3 ECHR is not taken into account. As a result, violations of article 3 ECHR may have arisen and not have been recognised as such.
In addition, research shows that immigration detention in the UK is the source of a number of preoccupations towards human rights protection of LGBT detainees. Discrimination and harassment are a common experience for many LGBT asylum seekers in detention. There are two vectors of discrimination in detention, namely, detention centres’ staff and other detainees. Testimonies of LGBT asylum seekers in Stonewall’s report account for experiences of intimidation, bullying, humiliating and discriminatory behaviour from staff. “They bully you”, “And then he just pushed me”, “sometimes they will make remarks that are abusive”, “I felt significantly humiliated. They make you feel like you are different” are just a portion of the
134 Immigration Act 2016 : Guidance on adults at risk in immigration detention, p.7
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721237/ Adults_at_risk_in_immigration_detention_-_statutory_guidance__2_.pdf accessed on 10 November 2018.
135 Home Secretary Sajid Javid, Home Secretary Statement on Immigration Detention and Shaw Report, (Oral
Statement to Parliament, 24 July 2018).
136 J. Pétin makes this observation with regard to the EU in general. Pétin, J. (2016). Exploring the Role of
Vulnerability in Immigration Detention. Refugee Survey Quarterly, 35(1), p. 98-99.
137 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, Cm 9186, January 2016. 138 Asylum Information Database, Country Report: United Kingdom, 2017 update, p. 82.
