‘How do I prove I’m gay with documentary evidence?’

04:59 |

15/01/25

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Cintila,

'How do I prove I'm gay with documentary evidence when my own parents can't comprehend it?'

This is the sort of question queer asylum seekers find themselves asking.

Since the Nationality and Borders Act came into law, we are seeing a clear correlation between the higher standard of proof and more refusal decisions. For LGBTQI+ people, there's been a disproportionate impact.

Read the full analysis below.

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FEATURED STORY

How the Nationality and Borders Act is endangering queer asylum in Britain

Zehrah Hasan

"I tried to claim asylum, but they said my word alone wasn't credible, and they rejected the evidence I did provide," Adams, a bisexual man from Ghana said. "It's so difficult to get evidence of your sexuality, especially as a black African man. No-one wants to associate with you, so you can't be out, or live openly as a bisexual man."

As an immigration barrister at Garden Court Chambers and a consultant lawyer at Rainbow Migration, a charity which supports LGBTQI+ people through the asylum and immigration system across the UK, we are finding that Adams is far from alone in his struggle to prove his sexual orientation to the Home Office – with the situation for people seeking asylum becoming even more impossible over the past two years.

Since the Nationality and Borders Act 2022 (NABA) came into law, we are in fact seeing a clear correlation between the higher standard of proof and more refusal decisions, a greater evidential burden on people seeking asylum, and higher expectations from decision makers. For LGBTQI+ people in the asylum system, there's been a disproportionate impact.

The NABA was heavily criticised by lawyers, policy experts, campaigners and migrant communities as it passed through parliament, thousands mobilised against it in the streets, and bodies like the UNHCR cautioned that the higher standard of proof would make it more difficult for people to be recognised as refugees in the UK's asylum process. Despite this collective warning, we are now seeing these fears plainly borne out.

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Analysis of the Home Office's latest immigration statistics has shown the grant rate for asylum plummeted in the past two years – from 75% to 52% – revealing a clear correlation between more refusals and the raised standard of proof.

This, coupled with the Home Office's rush to clear the asylum backlog, has also resulted in a significant drop in the standard of decisions themselves.

It will be those at the sharpest edge of this oppressive system, who are particularly isolated, marginalised and afraid, who are most at risk of not reaching this higher standard; and subsequently denied protection as a refugee.

LGBTQI+ people face disproportionate impact

For LGBTQI+ people, the damage is striking as the NABA has only exacerbated the pervasive racism, re-traumatisation and culture of disbelief within the UK's asylum system, and required them to do the impossible: prove your sexual orientation, gender identity or gender expression

LGBTQI+ people claiming asylum have long had to endure the indignity of proving their actual or perceived sexual orientation, gender expression or identity, or intersex characteristics to the Home Office. However, for claims made before 28 June 2022, a lower standard of proof applied.

In practice, this means someone has to show it is "reasonably likely" they are LGBTQI+. The domestic courts have widely recognised this standard to be "low"; given the inherent evidential barriers facing people fleeing persecution, and the high stakes and risks involved if they are unjustly returned.

Post-NABA, for claims made on or after 28 June 2022, people must now prove it is "more likely than not" that they have a characteristic causing them to fear persecution. So again, that means showing that it's more likely than not that you are LGBTQI+ if that's a reason for seeking asylum.

However, we know that for many LGBTQI+ people escaping violence and harm, the only evidence they have is their own testimony. This is common for people who have been forced to hide their gender identity and/or sexual orientation, conform to cis-heteronormativity, or only lived their truth in total secrecy, due to the risk of imprisonment and criminalisation.

This is the case for instance for Adams from Ghana who found it close to impossible to gather such evidence given he couldn't live life openly as a bisexual man. "I told them lots of stories about me which prove my sexuality, but they didn't believe any of them. All I had was myself and my sexuality, but they said that wasn't enough."

Meanwhile Bahiru, a gay man from Ethiopia told Rainbow Migration: "How do I prove I'm gay? If my own parents that brought me to this earth cannot comprehend and understand that I was born this way, because I am who I am, how on earth am I going to explain that, to prove it to someone who has a different culture to me, who doesn't understand the language and the syntax, who doesn't understand where I come from – how do you prove that?"

LGBTQI+ people who have fled domestic, societal and state violence may also need time to build and find community in the UK, due to internalised shame and fear. This can be further compounded by the social isolation and trauma they face here, especially if they are detained or housed in unsuitable asylum accommodation, where LGBTQI+ people are more likely to face abuse and harassment.

In these situations, it is near impossible for people to provide any documentary evidence. They will have no evidence of living openly and being part of a wider LGBTQI+ community, no partners or friends who can support their claim, no access to queer or trans-specific services, and may struggle to build trust and describe their experiences – especially in the hostile and oppressive environment of a Home Office interview.

It has previously been acknowledged by the Home Office that documentary evidence in LGBTQI+ cases may be more limited. However, saying this in one policy, then raising the standard of proof in law, creates a disconnect between what should be sufficient, and what is in practice expected.

Read the full article here.