The refugee Convention 1951 and the protocol 1967 outline what is considered legally to be a refugee. A person must be outside their country of nationality and have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or because of their political opinion. There must be unable to relocate to another safe place within their own country or seek the protection of the police or anyone else within their own country.
For the purpose of an asylum application, LGBTQ persons can be considered a particular social group in some countries.
How did the Home Office handle LGBT cases?
Prior to 2010 asylum applications were sometimes refused on the basis that, whilst it was accepted that a person was LGBT, it would not be reasonable for that person to conceal their sexuality from those that might harm them. In 2010 the Supreme Court ruled in the case of HJ (Iran) v SSHD  UKSC 31 that people should not have to hide their sexuality in order to avoid persecution.
It was following this case that refusals from the Home Office then changed. Rather than accepting a person’s sexuality and saying they could return anyway, in order to refuse an applicant, they would have to dispute their sexuality. This resulted in a number of cases where Home Office interviews were found to be entirely inappropriate, with overtly sexual questioning by Home Office officials. Thankfully the situation has changed, and the Home Office has significantly improved the way they conduct interviews in order to determine sexuality.
When to apply for asylum
If you’re from a country where you are likely to be persecuted as a result of your sexuality or how you identify, then you should have legal assistance from the outset of any claim you make. You should make an asylum application at the earliest point you feel you are at risk. This may be whilst you are already in the UK for another reason.
How to form your application
You must also support your application with as much evidence as possible. You need to write down a detailed and comprehensive account of the basis of your fear. This should include past events, for example of harassment or harm being caused to you, as well as details of any threats that you’ve received. The statement should be as detailed as possible, with dates and as much detail as possible of significant events. Whilst preparing this can be a traumatic experience, it is an essential part of the process.
You should also provide letters or statements from people that are aware of your sexuality, for example, other members of the LGBTQ community, partners, ex-partners, friends, and so on.
In the event you have suffered any prosecution in your home country because of your sexuality, then you should detail any court appearance or police involvement. Any records that you have from official sources will be valuable in improving the chances of success in your asylum claim. If you have suffered any mental or physical injury as a result of your persecution for your sexuality, medical evidence should also be provided. It may be that a specialist report should be commissioned, particularly if there is scarring which can be attributed to the trauma described.
How long will it take?
At the date of writing this blog, in January 2020, the Home Office is taking a relatively long time to decide asylum cases, averaging about a year. This timeframe goes from initial application, through screening interview, through substantive asylum interview and onto receiving a written decision from the Home Office. The timeframes for appeals being listed if the Home Office refuse your application are relatively low at present. An asylum case can be listed within around a month of lodging the appeal.
Westkin Associates is LGBT friendly
Our expert solicitors have a proud history of supporting a wide range of LGBT immigration applications with particular strengths in asylum.
To learn more about how we can support you call us at: 020 7118 4546
Or email us at: firstname.lastname@example.org