Investigating the British Asylum System for Lesbian, Gay and Bisexual Asylum-Seekers: Theoretical and Empirical Perspectives on Fairness
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INVESTIGATING THE BRITISH ASYLUM SYSTEM FOR LESBIAN, GAY AND BISEXUAL ASYLUM-SEEKERS: THEORETICAL AND EMPIRICAL PERSPECTIVES ON FAIRNESS Thesis submitted in accordance with the requirements of the University of Liverpool for the degree of Doctor in Philosophy by Tawseef Yaqub Khan March 2016 i ABSTRACT The entitlement of lesbian, gay and bisexual (LGB) individuals to claim asylum on the basis of their sexual identities has been a contentious matter, as sexual identity was not a ground of claim explicitly recognised under the 1951 Refugee Convention. Nonetheless, the United Kingdom (UK) has incrementally recognised the ability of LGB asylum-seekers to claim such protection over the last twenty years.1 This thesis undertakes a socio-legal investigation of the British asylum system from the perspective of LGB asylum-seekers. Using evaluation theory, it examines the fairness with which LGB asylum claims are treated in the UK, and the standards to which they are entitled. As the starting point, this thesis explores the legitimacy of using fairness as its standard, and examines the content of this standard. From this, it advances ‘structural principles’ that are used to examine the British asylum system since the UK Supreme Court’s seminal decision in HJ (Iran). Investigating the British asylum system through the framework provided by the structural principles is supported by qualitative data obtained from interviews conducted with legal practitioners, activists, academics, decision-makers and asylum-seekers, and from replies to the Freedom of Information requests addressed to the Home Office. This has helped to conduct a substantial analysis of the British asylum system, as experienced by LGB asylum-seekers today. It offers tangible praise, critique and recommendations with respect to their treatment regarding matters of procedural fairness, i.e., that relating to the asylum process itself, and substantive fairness, i.e., matters pertaining to the outcome of the claim for protection. This thesis submits that intersectionality and the diversity of sexual identity should be at the core of an asylum system that deals fairly with LGB claims for asylum in the UK. LGB asylum-seekers require access to an asylum system that is sensitive and empathetic to their experiences, and which avoids essentialising sexual identities and conducting ‘single-axis’ analyses. The system must operate with flexibility, in line with the unique needs and experiences of LGB asylum-seekers, and with respect for their fundamental rights. 1 HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31. i ii CONTENTS ABSTRACT i CONTENTS ii TABLE OF CASES vii TABLE OF LEGISLATION xii ACKNOWLEDGEMENTS xvi CHAPTER ONE INTRODUCTION 1 1. Introduction 1 2. The Context of Sexual Identity-Based Asylum 1 3. Research Questions 4 4. Terminology 5 5. Methodology 8 5.1. The Key Concepts of Intersectionality and Sexual Diversity 8 5.1.1. Intersectionality 9 5.1.2. The Diversity of Sexual Identity 13 5.2. Developing the Appropriate Methodology: a Socio-Legal Approach 15 5.2.1. Doctrinal Research as the Preliminary Research Stage 16 5.2.2. Empirical Research as the Secondary Research Stage 16 5.2.3. Developing an Appropriate Theoretical Framework as the Tertiary Research Stage 18 5.3 Rooting the Methodology in Evaluation Theories 19 5.4 Foregrounding the Thesis Investigation with Quantitative Data 21 5.5 The Empirical Research 23 5.5.1. The Empirical Research Design 25 5.5.2. Conducting the Empirical Research 31 6. Thesis Structure 36 ii iii CHAPTER TWO THE THEORETICAL FOUNDATION AND ANALYTICAL FRAMEWORK: FAIRNESS AS A LEGAL STANDARD AND THE ‘STRUCTURAL PRINCIPLES’ 39 1. Introduction 39 2. Why is Fairness the Appropriate Standard in an Investigation of the British Asylum System? 39 2.1 The ‘Duty to Act Fairly’ is Rooted in Legal Philosophy 41 2.2 Fairness as a British Standard through Administrative and International Law and Supranational agreements 44 2.2.1. Fairness in Administrative Law 46 2.2.2. Fairness in International and Supranational Law 52 3. What Does Fairness Look Like in the LGB Asylum Context: the ‘Structural Principles’ 61 3.1 The Relationship between Fairness and the Rights of Asylum-Seekers 63 3.1.1. Respect for UK’s Broader Fundamental Rights Obligations in Asylum Decision-Making 63 3.1.2. Embracing the Refugee Convention as a ‘Living’ Document, and Incorporating its Pragmatic and Dynamic Spirit into the Interpretation of its Provisions 67 3.1.3. Applying the Evidentiary Thresholds of the Refugee Definition Pragmatically and Flexibly 72 i. Applying the Thresholds of Persecution 73 ii. Proving ‘Membership of a Particular Social Group’ 77 iii. ‘Reasonable Degree of Likelihood’ and the ‘Benefit of the Doubt’ 79 3.2 Procedural Fairness in the Asylum Context 84 3.2.1. Ensuring Access to Competent and Appropriately Skilled Legal Representation for the Duration of the Asylum Process 84 3.2.2. Proper Application and Citation of Accurate and Relevant Guidance 88 3.2.3. The Rule Against Bias in the Asylum System 92 i. Access to Impartial and Non-discriminatory Treatment within the Asylum Process and Determination 92 iii iv ii. No Structural Impartiality, Allowing the Decision-making Process to Operate Free of Political Agendas 94 3.2.4. High Quality Recruitment and Training of Decision-Makers 96 4. Conclusion 100 CHAPTER SUBSTANTIVE FAIRNESS: WELL-FOUNDED FEAR THREE OF PERSECUTION FOR REASONS OF MEMBERSHIP OF A ‘PARTICULAR SOCIAL GROUP’ 102 1. Introduction 102 2. Defining the Notion of ‘Persecution’ and Applying this Definition to the Sexual Identity Context 103 2.1 Persecution: A Definition in Development 104 2.2 The Notion of Persecution within the British Courts 107 2.3 Persecution in the Sexual Identity Context: Legal Sanctions Criminalising Minority Sexual Identities 109 2.4 Psychological Harm as Persecution 119 2.5 Discretion: A Concept Retained? 127 3. Internal Relocation in the Sexual Identity Context 137 4. ‘Well-Foundedness’: The Role of Country of Origin Information 144 4.1 The Quality of COI Reports 145 4.2 The Application of COI Reports and Policy Guidance 147 5. Membership of a ‘Particular Social Group’ 155 5.1 The Recognition of Sexual Identity as a Social Group in Alternate Jurisdictions 155 5.2 The British Approach to Sexual Identity and ‘Particular Social Group’ 158 5.3. ‘Particular Social Group’ Decision-Making in HJ (Iran) and the Post- Decision Climate 161 5.3.1. Examining the ‘Protected Characteristics’ Approach: the Problems with Narrow Conceptions of Sexual Identity 161 5.3.2. The Exclusionary Potential of the ‘Social Perception’ Test 175 6. Conclusion 181 iv v CHAPTER FOUR PROCEDURAL FAIRNESS: THE CREDIBILITY ASSESSMENT AND THE ASYLUM PROCESS 185 1. Introduction 185 2. Determining LGB Claims: Documentary Evidence and Narrative Evidence 187 2.1. Providing Documentary Evidence to Establish a ‘Credible’ Sexual Identity 190 2.2. Applying the ‘Benefit of the Doubt’ to Credibility Assessments of Narrative Evidence 204 2.2.1. The Limitations Imposed by Memory upon the Presentation of ‘Credible’ Narrative Evidence 206 2.2.2. The Role of ‘Truth’ in Credibility Assessments of Narrative Evidence 216 i. ‘Unreasonable’ Behaviour 219 ii. Stereotyping 222 iii. Ignorance of Intersectional Factors 226 iv. The Relationship Between Guidance and Practice in Credibility Assessments 233 3. Detention and Accelerated Procedures 237 3.1. The Detention of LGB Asylum-Seekers 238 3.1.1. Inadequacy of the Screening Process 241 3.1.2. Denial of Fundamental Rights 243 i. Healthcare 243 ii. Legal Representation 246 iii. Punitive Impact 247 3.1.3. Detention Can Be Inherently Inhumane 249 i. Homophobic Behaviour Forces Concealment 249 ii. Psychological Harm 252 3.2. Accelerated Procedures: Detained Fast-Track 254 4. Personnel: Recruitment, Training and Conduct 265 4.1. The Conduct of Personnel within the British Asylum System 266 4.2. The Recruitment and Training of Personnel within the British Asylum System 275 5. Conclusion 289 v vi CHAPTER FIVE CONCLUSION 292 1. Introduction 292 2. Insufficient Understandings of Sexual Diversity and the Intersectional Nature of Sexual Identity 297 3. Sexual Minority Asylum-Seekers are Forced to Navigate the Asylum Process in Ways Prejudicial to their Dignity and Integrity 301 4. The Problems with Sexual Identity-Based Asylum Claims are Symptomatic of Problems within the British Asylum System Overall 306 5. Final Thoughts on the Mistreatment of LGB Asylum-Seekers 313 APPENDICES 317 APPENDIX A Guide to Empirical Research Participants 317 Empirical Research Timeline 322 Participant Information Sheet and Consent Form 327 Interview Schedule 331 First Freedom of Information Request 335 Second Freedom of Information Request 337 Communications Regarding Request for Court Access 339 APPENDIX B Table Mapping the Theoretical Framework of the ‘Structural Principles’ 348 APPENDIX C Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 350 BIBLIOGRAPHY 353 vi vii TABLE OF CASES UK CASES AR and NH (lesbians) CG [2016] UKUT 66 (IAC) (1 February 2016)….…………151 AS and AA v. Secretary of State for the Home Department (Effect of previous linked determination) Somalia [2006] UKAIT00052……………………………………….89 Detention Action v. Secretary of State for the Home Department [2015] EWHC 1689…………………………………………………………………………………256 DW (Homosexual Men - Persecution - Sufficiency of Protection) Jamaica CG [2005] UKAIT 00168…………………………………………………………………139, 151 Gashi (Asylum; Persecution) Kosovo [1996] UKIAT 13695………………………..74 GCHQ H.L. 1984; [1985] Appl. Cas. 374…………………………………………...51 Golchin v. Secretary of State for the Home Department (7623) (1991, Unreported)…………………………………………………………………………158 Gurung (Exclusion, Risk, Maoists) Nepal CG [2002] UKIAT 04870……………….70 HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31……………………………………………………………2-5, 128, 129, 130-131, 138, 162, 163, 189, 199, 232, 292 HK v. Secretary of State for the Home Department [2006] EWCA Civ 1037……...226 Horvath v. Secretary of State for the Home Department [2001] 1 AC 489………...108 JM (homosexuality: risk) Uganda CG (2008) UKAIT 00065……………………...140 Jonah v.