In February 2015, the Home Office issued new asylum policy guidance on sexual identity issues in asylum interviews.
Widespread incidents of Home Office interviewers asking offensive and inappropriate questions to people claiming asylum because of their sexuality have become somewhat notorious. Paul Dillane has recently written an excellent article about the “toxic mix of homophobia, misogyny and ignorance corrupts the asylum system”.
This policy guidance can be seen as a positive step in Home Office attempts to address this unacceptable situation. Policy guidance, however, is not necessarily the same as what happens in practice.
If someone has had their sexuality-based asylum claim refused and they do not feel the interview was conducted in accordance with guidance, this mismatch may be relevant in challenging the refusal.
The asylum interview
Guidance on conducting the asylum (substantive) interview is particularly important because it is one of the most important parts of the asylum process. As the guidance policy states:
The asylum interview is a key part of the asylum process because it is the main opportunity for the claimant to provide relevant evidence about why they need international protection and for caseworkers to test that evidence. It is important that claimants disclose all relevant information at this stage and that caseworkers fully investigate the key issues through a focused, professional and sensitive approach to questioning, particularly as some evidence may relate to instances of persecution or serious harm, including sexual violence.
You can read more about the asylum (substantive) interview and why it’s so important, in our Toolkit here.
The policy guidance goes on to say:
The interview should be a sensitive enquiry into the development and exploration of the claimant’s sexual identity and the extent to which it is relevant to the assessment of the need for protection. It should not be an enquiry into any explicit sexual activity.
This guidance is reiterated in the document, saying there are “no circumstances in which it will be appropriate for the interviewer to instigate questions of a sexually explicit nature. This includes questions about explicit sexual activity or physical attraction.”
This is crucial, as this has been one of the most damaging and dangerous aspects of interviewing by the Home Office. This kind of questioning often leads people claiming asylum to feel pressured into revealing intimate details, and even submitting explicit material as evidence.
The UNHCR’s guidance on ‘Claims to Refugee Status based on Sexual Orientation and/or Gender Identity’ is very clear on this:
Applicants should never be expected or asked to bring in documentary or photographic evidence of intimate acts.
and indeed a 2014 European Court of Justice ruling determined that EU Member States must not accept sexually explicit material.
Leave the stereotypes behind
An important part of the policy guidance reminds Home Office caseworkers that someone’s sexual identity should be considered on an individual basis, and in their own terms.
This last point links in to S. Chelvan’s ‘Difference, Stigma, Shame, Harm’ model which underlines that sexuality is about identity, not just sexual acts. You can read about the DSSH model on our legal blog here.
The policy guidance acknowledges the difference between behaviour and identity:
Caseworkers are reminded that an LGB [Lesbian, Gay, Bisexual] person’s sexual identity is not solely, or even necessarily partly, defined by their participation in sexual behaviour and, in any case, this aspect of their behaviour may, in some claims, be irrelevant due to factors such as religious beliefs or cultural restrictions.
The policy guidance also highlights that these key considerations also apply to the interpreter in the interview. If the interpreter is using a label or term that the asylum-seeker does not recognise or accept, this may impact on their ability to talk about their sexual identity in the interview. These issues may only come to light on listening to the audio recording of the asylum interview – it is therefore essential that someone going to their asylum interview has requested audio recording in writing more than 24 hours in advance to ensure the audio recording takes place.
Evidence and disbelief
Given that most asylum claims are refused on the basis of credibility – the Home Office (and often the courts) do not believe what the person claiming asylum has said – the policy guidance notes on evidence and testimony are particularly important.
The policy guidance goes on to acknowledge that because of “discrimination and oppressive environments in their country of origin”, there is often a lack of information about the persecution of LGBT+ people in that country. The guidance says this may lead to people claiming asylum finding it “difficult to substantiate their claim or provide full disclosure of sensitive and personal information.”
Reasons for refusal letters are often littered with references to people not able or willing to provide enough information about something (therefore doubting that something is true), or a lack of objective evidence to substantiate testimony. It may therefore be important, if challenging a Home Office refusal, to direct them to their own guidance on this matter.
The policy guidance also acknowledges that it may be difficult for people to talk about their sexuality and, indeed, that the asylum claim may be the first time they have done so.
Specifically, the guidance stipulates that:
Caseworkers must not make an adverse credibility finding solely on the grounds that a claimant did not raise issues of sexual identity on the first occasion that they claimed asylum – that is at screening.
Read more about the screening interview in our Toolkit here.
Caseworker are advised that “Any late disclosure must be fully investigated and the overall credibility of a claim considered ‘in the round’. “
The policy guidance also considers issues such as country guidance, the meaning of persecution, and in-country protection such as internal relocation. All of this guidance may be useful when trying to determine if the Home Office has followed its own rules in deciding your (or a friend’s) asylum claim.