Should the Home Office object to the production of intimate photographs produced with the client's consent to support a claim for asylum based on homosexuality?

Having arrived in the UK, asylum-seekers are not done with facing hurdles. A grant of refugee status does not automatically follow from a claim – nothing could be further from the truth. Asylum-seekers are required to go through a lengthy, complex and stressful process, and will not be granted refugee status unless (a) they meet the definition of a refugee; and (b) they can establish that they meet said definition.

A refugee is defined under the Geneva (Refugee) Convention 1951 as an individual who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

A strict interpretation of this definition would reach a conclusion that a high threshold must be met. Admittedly, there is a low burden of proof in asylum cases (“reasonable degree of likelihood”) and there is no requirement for corroboration in asylum cases. However, even to establish a client’s basis of asylum claim, particularly in the period of the hostile environment policy, is an uphill battle.

What makes matters worse is that, in the majority of cases, asylum-seekers will have fled their home urgently and undertaken a dangerous and lengthy journey to reach British shores. Consequently, they are unlikely to possess a file cabinet’s worth of evidence – so how can the basis of their claim be proven?

Home Office approach

Giving credit where credit is due, the Home Office has a certain appreciation of this point, and has employed the following strategy to help resolve the issue:

  • To corroborate nationality, it will ask questions of the asylum seeker and their home country such as the colour of money, local geography/landmarks, popular radio stations etc.
  • To prove religion (Christianity for example), questions may be asked concerning favourite books of the Bible, significant Christian figures, or days of worship.
  • To prove political opinion, the asylum-seeker is likely to be asked about their party’s history/origins, influential figures, current role in their country of origin etc.

Having asked these questions, the Home Office will do its own research and determine whether the client’s answers are correct with reference to objective evidence. In the absence of supporting documentation, this is admittedly a fair way of assessing a client’s credibility and basis of claim. 

However, when it comes to homosexuality (commonly protected as a member of a particular social group), a different approach appears to be taken. Whilst questions are still asked such as previous partners and sexual encounters, the problem is that the answers given cannot be independently corroborated, thus the client's account is given little weight or value. 

Proving you are gay?

How then can homosexuality be proven? A good practice is to obtain witness statements from current or ex-partners, but in the absence of these (who really keeps in touch with ex-partners?) what else can be done by the Home Office, or indeed the client, to prove that they are gay? 

In very rare and unusual circumstances, one of our clients was able to provide such evidence. This client was at the stage of appeal, where part of his claim was that he could not return to his country of origin on account of his sexuality (disputed by the Home Office).

Having engaged in sexual intercourse with another man, he had photographic evidence of participating in said acts. Now as a general rule, we would not seek to lodge such evidence. However, given that it was so vital to the client’s claim, and with his wish to do so, we determined that it was in his best interests and with his consent, we decided to submit it. 

Problematically, but perhaps to be expected, the photographs were almost instantly objected to by the Home Office. It was argued that the photographs were explicit, and that they were of such a graphic nature that it would infringe our client’s right to a private life under article 8 of the European Convention on Human Rights. 

Looking at the Home Office’s own guidance on establishing sexual orientation, it is stated that “Any visual material depicting sexual acts must not be accepted. Using sexually explicit evidence about a claimant’s intimate life will be considered as humiliating and degrading and will violate their right to private life.” 

From the Home Office’s perspective, it is understandable that they may not wish to consider such evidence in certain cases: for example, where the evidence infringes the rights of the other participant in the sexual acts, or where the client did not consent to the photographs being released. Moreover, I can appreciate that there would also be a concern of asylum-seekers “creating” such evidence under a false pretence to support their claim.

Blanket rule?

However, rather than having a policy which refuses such evidence in all-cases, surely the value of this form of evidence should be considered on a case by case basis? With our client, for example, several points can easily address any concerns that the Home Office may have:

  • The client not only consented to the disclosure, but rather he instructed our office to do so.
  • The client provided the evidence himself: it was not obtained from any unreasonable source.
  • Immigration & Asylum Tribunals deal with incredibly sensitive information every single day – this is not a valid argument for excluding such evidence.
  • The other individual in the photographs could not be identified, so his rights were not infringed.
  • The photographs were taken long before our client came to the UK or claimed asylum, so there was no concern of him “creating evidence” to support his claim.

In summary, establishing your claim is perhaps the most difficult part of claiming asylum. Where the Home Office is unable to corroborate answers independently, desperate times call for desperate measures. Our client strongly wished for his photographs to be shared – and he should have been able to do so without difficulty. To put it succinctly, if the Home Office asks an asylum-seeker to establish that they are gay, there should be no complaints from the Secretary of State when they are able to do so.

The Author

Kyle Dalziel, trainee solicitor, Loughran & Co

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