In another 2012 case, the UKBA refused to accept evidence from a recognised gay refugee from Uganda that the appellant was gay, as he had first met him at a party where they had stripped down to their underwear, and he knew that he was attracted to the witness due to the state of his arousal. Counsel asserted: “How do you know they are gay…they weren’t kissing each other in the photograph were they?” In the 2012 case of a 16-year-old gay teenager from Nigeria, counsel for UKBA cross-examined his foster mother about a photograph she had of the appellant and his best friend, which she stated showed from their body language that they were gay. Decisions are based on countless adverse credibility findings arising from an approach fixated with establishing sexual conduct in the bedroom, rather than exploring issues surrounding expression of sexual identity in the “outside world”. Nonetheless, not a single refusal decision letter seen by this author, or colleagues, let alone cites or applies this internal guidance. Any additional enquiry is accepted by the UKBA to be sensitively handled (see API on Sexual Orientation issues in the asylum claim, p 11). Since the publication of the UK Border Agency’s asylum policy instructions (API) on Sexual Orientation issues in the asylum claim in October 2010 – amended in July 2011 to separate the gender identity element – the issue of credibility is accepted by the UKBA to be one of “current” sexual identity (NR (Jamaica) applied EWCA Civ 856), and that self-identification should be the starting point. How does an individual prove that they are gay? In 20 the Czech and Slovak authorities were receiving evidence from sexologists who had attached machinery to the genitals of men and women to measure their physical responses to pornography. The battleground is now firmly centred in the individual overcoming the first limb of the HJ test and “proving” that they are gay. Suddenly, since July 2010, supposedly due to a fear of false claims, the shift has been from discretion to disbelief. In 2011 the Upper Tribunal (Immigration and Asylum Chamber) amplified the extent of the test to straight women in Jamaica who would be perceived as lesbian unless they adhered to a specific heterosexual narrative, which included having a male partner, children or being receptive to the advances of a persecutory male caller (SW (Jamaica) UKUT 00251 (IAC)).
This test has been the subject of academic attack, but the UK Border Agency has supported the test in the subsequent Supreme Court case of RT (Zimbabwe) UKSC 38 in 2012. if on the other hand, a material reason for discretion is the well-founded fear of persecution, then the individual is entitled to refugee status.If the individual is voluntarily discrete, only because of family or societal pressure, then the individual is not a refugee.Will the individual be open on return? If so then he is a refugee.Do openly gay people in the country of origin face a well-founded fear of persecution?.
Is the individual gay, or will he be perceived to be?.In summary the four stage test is as follows:
At para 82, Lord Rodger provided guidance for administrative and judicial decision-makers on how to determine such claims. In July 2010, the Supreme Court in HJ (Iran) and HT (Cameroon) UKSC 31 (aka the “Kylie concert case”), unanimously held that gay men, lesbians and bisexuals had the right to live “freely and openly” without the threat of persecution. While the Netherlands in 1981 was the first country to recognise refugee protection of gay men, it took the UK until 1999 in Shah and Islam 2 AC 629 to recognise that homosexuals may also be provided protection through the Particular Social Group Convention reason. In December 1950, the signatories at the UN General Assembly never contemplated sexual or gender identity to ever be part of a Convention reason ground for protection. The 1951 Refugee Convention, supplemented by the 1967 Protocol, enshrined the commitment of the nations of the world to offer protection to those who flee their countries of origin, due to a well-founded fear of persecution based on either their race, religion, nationality, political opinion or membership of a particular social group who find themselves outside their country of origin or habitual residence, and are unwilling or unable to avail themselves of the protection of their home state.