‘How do you prove to the Home Office something you’ve spent your life trying to hide?’ by Caitlin Alexander

I am currently a Trainee Solicitor, working primarily with Immigration Law. I studied at the University of Glasgow, graduating in 2018 and obtaining my Diploma in Professional Legal Practice in 2019. So far, working as a Trainee has been incredibly insightful. I have been working towards my restricted practicing certificate so that I can represent clients in the First Tier Tribunal. It was been truly amazing to combine my passion for human rights with learning how to be commercially aware and successfully contribute to a business.

How do you prove to the Home Office something you’ve spent your life trying to hide?

I have been a Trainee Immigration Solicitor for only a few months so far, but it has been the most incredibly eye-opening experience. Being LGBT myself, I am particularly interested in asylum cases regarding persecution on the basis of sexual orientation.

A WELL-FOUNDED FEAR OF BEING PERSECUTED AND A CONSISTENT STORY…

In order to be successfully granted refugee status, the onus is on the applicant to prove to  the Home Office that they have a “well-founded fear of being persecuted”. As per case law, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, the applicant must also prove to the Home Office, among other things, that they are indeed LGBT.

I have been dealing with some cases as part of my Traineeship which involves various applications being rejected on the basis that the Home Office are not convinced that the applicant is the sexuality that they claim to be. I want to share with you one case that really got me thinking.

In the interests of GDPR, I will keep the account of this particular case as concise as possible, leaving in only pronouns as an identifying detail. In this case, the Home Office did not accept the applicant’s claim that he was bisexual. The applicant told the Home Office how he was sexually attracted to men and has been ever since he was a teenager. When asked how he knew he was bisexual, the applicant expressed that it was too hard to explain, he just has feelings of strong romantic like towards both men and women.

When appealing a decision to the Immigration Tribunal, an applicant must respond to points that the Home Office have picked up on regarding inconsistencies and sufficiency of detail during previous interviews/statements. Regarding the applicant’s account of how he knew he was bisexual, the Home Office deemed this explanation to be vague and, thus, damaging to his credibility. When I asked the applicant for a response, he explained to me that what he had told the Home Office was the best way that he could describe his feelings, as strong feelings of romantic and sexual attraction to both sexes.

It made me think, how is it that these genuinely LGBT+ asylum seekers “convince” the Home Office of their sexuality?

FROM STEREOTYPES TO ASSESSMENT

On the whole, it is much more difficult to obtain a successful grant of refugee status if you do not fit into stereotypes, i.e. you don’t look or act “gay” enough.

There is also much more of a chance of being granted asylum if your behaviour lines up with what western people deem “gay” – visiting gay bars, being outspoken and activist, wearing rainbow clothing. This is problematic in so many ways. For example, if the applicant comes from a country where homosexuality is illegal then it is not safe for them to be outspoken about their sexuality. However, the Home Office will draw negative inferences from this lack of activism.

Another thing that the Home Office ask about is what they call the applicant’s “journey to sexual realisation”. This essentially is someone’s coming out story. Successful grants of asylum seem to hinge on how cogently an applicant can describe a coming out story in line with western stereotypes. The Home Office appears to require an account of an applicant’s emotional journey to realising their sexuality. How is it possible to tell the genuine stories from the fake ones regarding something so personal? It really is not something that you can define the start, middle and end of. The Home Office also require such vivid detail of this account that anything short of this is viewed as damaging to credibility. How is an applicant expected to remember something that they spent years trying to suppress?

So, the Home Office wants an elaborate articulation of a story, right? But there seems to be no way to correctly tell this story. For example, the Home Office will assume that, if the person is gay, then they will have had relationships in their home country with someone of the same sex. If they have had same-sex relationships, then the Home Office will question how this could have been possible in light of the averred risk of persecution. They will say that, if there was a real risk of persecution then they would have been caught. Why would they take the risk? If the applicant has not had a relationship in their country of origin, then the Home Office will draw the conclusion that they are not gay at all. Lose, lose.

For the Home Office, my client’s account was not good enough in their eyes. If an applicant just knows that they are gay/bisexual then how can they articulate an account of their coming out that will satisfy the Home Office? It seems completely unjust to leave it up to majority straight, western assumptions as rationales for deciding on whether an individual is gay or not.

WESTERN GAY = CONVINCING GAY

There is also the western assumption that being gay or bisexual is only convincing when you have a same-sex partner. How is it possible for an asylum seeker to find a partner? Think about it, they probably don’t speak English particularly well, they’re living on about £5 a day from the Home Office and not allowed to work, and their immigration situation is precarious. It’s so unrealistic. A lack of a same-sex partner does not, by any means, make someone “less gay”.

In addition, the Home Office look into how active in the LGBT community an asylum seeker is when they come over to the UK. They will ask if they attend LGBT community groups, or attend Pride, for example. The problem with this is that, often, asylum seekers live out of the city and cannot afford the transport into the city to attend any groups.

Any statements submitted to the Home Office by a Solicitor must be as comprehensive as possible otherwise the applicant’s account will be deemed not to be credible. A statement must detail the persecution (if any) the applicant has faced in their home country and what persecution they would face upon return. It is necessary to give details of whether or not they would have to conceal their sexuality upon return and why they would have to do that. To meet the threshold of persecution, it is not enough simply to fear rejection by family or to be subject to unfavourable societal attitudes. Evidence, if available, must be submitted to the Home Office. For example, statements from friends/partners who can testify as to the situation.

In conclusion, the Home Office’s investigation into sexuality rests on assumptions and stereotypes – assumptions as to what a convincing coming out story should look like, and assumptions as to how a genuinely LGBT person should look and act. This is incredibly concerning and creates a mould as to the perfect LGBT asylum seeker. Anything which breaks this mould is not credible in the eyes of the Home Office.

HMP High Down prison project 2020 by Roseline Egbejimba

(photo – Roseline ( pictured first on the right), fellow students and tutor Kate Ritchie ( far left) in the HMP High Down grounds, March 2020)

During one of my modules last year, a student highlighted the benefits of participating in one of the prison projects. I remember quite vividly the smile on the student’s face as she recounted how much she looked forward to each prison visit and how rewarding the experience was, not just for the prisoners but also for the students. I was intrigued and wanted to know more.

Conducting a little bit of research, I discovered that the prison projects are one of the pro bono options available in the module W360: Justice in Action and that they require students to take part in pro bono work by attending a prison and providing free legal information and guidance to prisoners.

So, when the time came for me to choose my next module, I made the decision to choose the prison project option as I was hoping that I could also make a difference in my own small way, by ensuring that maybe, at least, one prisoner was privy to the legal information they needed, which would hopefully improve their chances of having access to justice.

Topics of interest to prisoners

The legal information that you may be required to provide to the prisoners varies from the Sentencing Guidelines, especially issues affecting custodial sentences such as licence conditions, early release and Imprisonment for Public Protection (IPPs), to joint enterprise cases, particularly in light of the Jogee case, to extradition law, particularly on issues affecting foreign nationals in prison facing deportation and criminal defences such as insanity, automatism and diminished responsibility. Topics are based wholly on what interests and matters to the prisoners. You will find that providing prisoners with any legal information is invaluable, especially to those prisoners who have been incarcerated for a number of years and unaware of changes to the law and for those prisoners who for a number of reasons are incapable of accessing the legal help they require, themselves.

Team Work

It is true that working with other students, especially students whom you haven’t met in person, can sometimes be challenging, but you quickly learn from each other and work towards a common goal to ensuring that you provide detailed legal information for the prisoners. You have to be able to collaborate with each other, share ideas and bear in mind that other students may work at a different pace than you or may have work or family commitments which may hinder their ability to adhere to strict deadlines. As a team member, it is also important that you understand that you may be required to step in to fill a gap, should there be a need, to ensure that the task is completed and the presentation still goes according to plan. Personally, I relished the challenge of working as part of a team as it pushed me to improve my work further before the next prison visit. I also developed a competitive streak without realizing it!

Research Skills

With regards to research, I must admit that initially I really struggled with it as I easily got frustrated when sometimes, I couldn’t find the information I was looking for through a legal database.  And like a lot of other students out there who sometimes find themselves in similar situation, Google, becomes a temporary, but quick welcome alternative. However, as I needed to provide a list of my sources, which can be legally verified, I had no choice but to persist using legal databases for my research. This benefited me immensely, because as I continued to use this method of research, I developed key legal research skills without even realizing I was doing so. And as I progressed into the project, I grew more and more confident with conducting in-depth legal research and relished compiling detailed legal information on different topics for the prisoners.

Prison visits and the presentations

The prison visit itself can be nerve-racking. I was nervous about arriving at the prison late, thereby missing the visit entirely. I was worried about forgetting my ID which would have been disastrous seeing as entrance to the prison was completely prohibited without it and then I was also incredibly nervous about meeting the prisoners and presenting the information to them. I suppose I was mostly worried about embarrassing myself by forgetting key aspects of my research or worse, not being able to answer the prisoners’ questions.  However, as it turned out, I had nothing to be nervous about.  The prisoners were incredibly intelligent, intuitive, engaging and also very enthusiastic, which made the visits and the presentations incredibly successful.

I therefore began to look forward to each visit, not only to present the prisoners with the legal information they wanted, but to learn from them. I found their positive attitude infectious and I was also pleasantly surprised at their legal knowledge and enthusiasm to acquire even more legal knowledge. They exhibited the latter by widening the scope of topics presented for research at the end of each session, which challenged me further.

Benefits of the prison projects

Prior to studying W360: Justice in action, I was unaware that there were organizations, such as Open Justice and  St Giles, who are architects of the prison projects,  and made up of tutors, lawyers, and a whole team of volunteers who go out of their way to ensure social justice by providing legal help and guidance pro bono to the most vulnerable people in our society. I am incredibly appreciative to have been given the opportunity to study this module as it has helped me to develop personally and professionally. I must admit that I was not expecting the prison project to benefit me in the way that it did. I feel privileged to have met the prisoners we worked with. I was also incredibly happy to discover at the final session that one of the prisoners who had been incarcerated for quite some time, was finally able to access the professional legal help they required and was due to be released a few days later.

The prison projects have the ability to help your legal development in ways that you cannot imagine and at the same time, it gives you the opportunity to make a difference in prisoners’ lives, so if you have a desire for both of these and more, the prison projects and the module W360: Justice in Action may be for you.