(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

LEGAL INFORMATION

International Law

The United Kingdom is signatory to various international and European treaties and human rights declarations that include prohibitions of discrimination based on sexual orientation and gender identity. The UK is signatory to the European Convention on Human Rights, the European Union Charter of Fundamental Human Rights, ICCPR, ICESCR and other agreements which aim to uphold essential human rights. As the UK is a dualist state, treaties and agreements ratified by the government have no effect unless they are incorporated into domestic law.

National Law

There have been various recent pieces of legislation which have increased the rights of LGBTI individuals. In 2000, the UK removed the ban on LGBTI individuals serving in the armed forces. In 2001, the age of consent was equalised. The Gender Recognition Act 2004 gave transgender individuals the right to have their gender identity legally recognised. However, it requires transgender people to present evidence to a Gender Recognition Panel that considers cases and provides a Gender Recognition Certificate (GRC). It is not necessary for sex reassignment surgery to have taken place (although any surgery will be accepted as supporting evidence for a case). The Marriage (Same Sex Couples) Act 2013 legalised same-sex marriage in England and Wales.

The Equality Act 2010 extends legal protection to LGBTI individuals. This Act consolidates forty years of equality legislation. Sexual orientation is now a ‘protected characteristic’. This is intended to cover equality in the workplace, equal access to goods and services, education, access to public premises and associations/voluntary groups. Stonewall (LGBTI rights charity) has designed a simple guide to understanding the Equality Act 2010 and its implications for LGBTI individuals.

There are a number of criminal offences based on hostility towards LGBTI individuals. Section 146 of the Criminal Justice Act 2003 means that the court must treat hostility based on sexual orientation as an aggravating factor for sentencing a person. Section 74 and Schedule 16 of the Criminal Justice and Immigration Act 2008 makes ‘incitement to homophobic hatred’ a criminal offence.

CASE LAW

HJ (Iran) & HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010)

In the above case, the Court of Appeal held that gay men are able to conceal their sexuality and therefore avoid persecution in countries where there is homophobia. It ruled that asylum could only be offered when it was demonstrated that a life of concealment would be something the applicant cannot reasonably be expected to tolerate. However, the asylum appeals in the Supreme Court were allowed. The Supreme Court overruled the decision by the Court of Appeal and rejected the ‘reasonable tolerability’ test (more commonly referred to as the ‘discretion test’) as incompatible with the purposes of the Refugee Convention.

Garden Court Chambers, a leading set of chambers in immigration law in London, described the above case as ‘very important’ because it reveals that the UK courts have recognised that the Refugee Convention protects against persecution for reason of the protected characteristics such that it is no answer to a refugee claim that the applicant could avoid being persecuted whilst concealing their protected characteristic in their country of origin.

R (JB) Jamaica v. Secretary of State for the Home Department [2013] EWCA Civ 666 (12 June 2013)

In this case, the Court of Appeal held that it was unlawful of the Secretary of State for the Home Department to continue to designate Jamaica under section 94 of the Nationality, Immigration and Asylum Act 2002, as a state where ‘there is in general no serious risk of persecution’. This case is important because it represents a sign of progress; UK courts are increasingly recognising the serious threat of the persecution of LGBTI individuals and considering additional countries where discrimination on the grounds of sexuality is a commonplace reality.

Outside of asylum cases, there have been indications that the UK legal system is becoming more sensitive to discrimination on the grounds of sexual orientation. In Bull and another v Hall and another [2013] UKSC 73 (27 November 2013), a gay couple were refused bed and breakfast at a Christian couple’s private hotel on the grounds that they believed that sexual intercourse outside of traditional marriage is sinful. The Supreme Court dismissed the appellant’s appeal. It was decided that the appellants’ policy constituted direct discrimination on the grounds of sexual orientation.

PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT

Known incidences of violence and discrimination

There have been various violent attacks on LGBTI individuals in the UK. In 2012, Giovanna Del Nord, a transsexual woman, was attacked after entering a pub in Leicester City. In June 2012, Steven Simpson, an autistic and openly gay 18-year old, had homophobic slurs written on his body and was set on fire at his birthday party in Sheffield.

It has been widely recognised that there is a great amount of homophobia amongst schoolchildren in the UK. In the Teachers’ Report 2014, a large survey asked teachers from primary and secondary schools about anti-gay bullying. It recorded that nine in ten secondary school teachers and almost half of primary school teachers (45%) say pupils experience homophobic bullying even if they are not gay. The vast majority of teachers – nine in ten in secondary schools (89%) and seven in ten in primary schools – hear homophobic language around schools.

A recent report by Stonewall entitled ‘Homophobic Hate Crime: The Gay British Crime Survey 2013’ has documented various incidents of recent violence towards LGBTI individuals. The report suggests that one in six lesbian, gay and bisexual people have been a target of homophobic hate crime over the last three years.

State and political attitudes

The UK can grant asylum under the 1951 United Nations Convention Relating to the Status of Refugees. However, individuals attempting to seek asylum in the UK based on their sexual orientation face significant hurdles as highlighted by a 2010 report by Stonewall. The report provides evidence that those seeking asylum on the grounds of their sexual orientation are treated less fairly than other groups of asylum-seekers. In particular, the report lists a number of problems with the UK Border Agency (UKBA) (Now known as the UK Home Office) in assessing LGBTI asylum applications.

The Vine Report published in 2014 is an in-depth report that explores the current problems of applicants who are seeking asylum based on their sexual orientation. The report investigates four main problem areas with the asylum process: adequacy of guidance and training, conduct of interviews, decision-making and appeals, and management and oversight. A number of recommendations were made, that can be explored further in the report but are summarised below. It recommends that the Home Office:

1. Improves training so that stereotyping and stereotypical expectations of LGB activity and lifestyle do not appear in interview questions.
2. Ensures that caseworkers do not ask sexually explicit questions, and equips them with the interviewing skills to cope professionally when sexually explicit responses are received.
3. Ensures a consistent approach towards the handling of explicit material presented to support an asylum claim.
4. Ensures that all asylum claims made on grounds of sexual orientation are accurately recorded as such.
5. Ensures that staff who conduct screening interviews comply fully with Home Office guidance, so that applicants are not questioned on the substance of their asylum claims.
6. Clarifies its policy and guidance on use of DFT medical induction material for case considerations.
7. Provides more detail about the DSSH (‘Difference, Stigma, Shame and Harm’) model in its training for caseworkers so that it can contribute to the quality of interviewing.
8. Ensures that future thematic examination of asylum claims made on the grounds of sexual orientation makes use of a wide evidence base.

There is a fundamental lack of efficacy in the UK asylum process. In October 2014, it was revealed that there was a backlog of over 29,000 applications dating back at least seven years. The Public Accounts Committee said 11,000 of those applicants had not even been given an initial decision on whether they were allowed to stay in the country. In July 2014, the High Court found that the Government’s Detained Fast Track (DFT) system ’carries an unacceptably high risk of unfairness.’

In general, UK political parties seem supportive of LGBTI individuals and their rights. As discussed in the Legal Information section, it was the Coalition Government that legalised same-aex marriage.

Societal attitudes

A YouGov poll in 2011 indicated that 92% of the British population supported legislation that outlaws discrimination on the grounds of sexual orientation. Whilst this is a clear majority in favour of LGBTI anti-discrimination laws, nonetheless this does indicate that 8%, or around one in twelve of the population, does not support the legal protection of LGBTI persons, which is significant.

There are a number of cities and city areas across the United Kingdom that have been historically known as LGBTI centres, including Birmingham (Birmingham Gay Village), Blackpool, Brighton, Liverpool, London (Old Compton Street) and Manchester (Canal Street). These cities all host annual pride festivals.

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

Persian LGBT Advisory Services   

Rainbow Migration (Formerly UK Lesbian & Gay Immigration Group (UKLGIG))

www.rainbowmigration.org.uk
CAN Mezzanine -Borough, 7-14 Great Dover St, London, SE1 4YR
Tel: +44 (0)2 07 92 27 812
Helpline: +44 (0)2 07 92 27 811
Contact Form: here
Email: hello@rainbowmigration.org.uk

The UK Lesbian & Gay Immigration Group is a charity that promotes equality and dignity for lesbian, gay, bisexual and transgender (LGBT) people who seek asylum in the UK, or who wish to immigrate here to be with their same-sex partner. Its asylum related activities include supporting LGBT asylum seekers by providing support and information via their helpline and in person; referring to solicitors; organising a monthly support meeting; visiting detention centres and running other social support projects. It also provides training and information on LGBT asylum issues to relevant service providers in the refugee and LGBT community, solicitors and other legal advisers, UKBA staff and the judiciary.

COUNTRY OF ORIGIN SPECIALISTS (COIs)

We do not currently list any COI experts for the UK, but we welcome suggestions.