LGBT Persecution: The Fear Of Returning Home

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
27 September 2016

We are currently acting for gay men and women from around the world who wish to claim asylum in the United Kingdom because of their inability to return to their country of origin. We represent Egyptian, Ghanaian, Indian and Pakistani men whose country’s criminal code makes homosexual behaviour unlawful. In each one of these cases we need to address the country’s situation in order to determine whether or not there is persecution at the hands of the state; whether internal relocation is a viable option, and whether they are able to flee to avoid persecution from family members. We also have to examine whether they would have to conceal their sexual orientation in order to survive in their country of origin, and what might happen if they attract disapproval which meets the threshold of persecution.

Persecution and The Geneva Convention

The legal framework of every asylum application is Article 1(a)(ii) of the Geneva Convention. It states a refugee is a person, who, owing to a well-founded fear of being persecuted for reason 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.

In the gay cases the Convention reason in play is the applicant’s membership of a particular social group, that of being gay or a trans-gender male or female. The question is whether the applicants would face a well-founded fear of persecution on that account. The act of persecution must be sufficiently serious to constitute a severe violation of basic human rights. There can also be an accumulation of various measures which together are sufficiently severe as to affect the individual in a similar manner to that of persecution.

What if the applicant can avoid risk by living discreetly?

If he will do so because this is how he wishes to live or because of social pressures i.e. not wishing to distress his parents or embarrass his friends, then the application should be rejected. Social pressure of that kind does not amount to persecution and the convention does not offer protection against it. Such a person has no well-founded fear of persecution because – for reasons that have nothing to do with any fear of persecution – he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If on the other hand, a material reason for the applicant living discreetly on his return would be a fear of persecution which would follow if he were to live openly as a gay man, then other things being equal his application should be accepted. Such a person has a well-founded fear of persecution.

To reject applicants on the grounds that one can avoid persecution by living discreetly would be to defeat the very right which the convention exists to protect – the right to live freely and openly as gay without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the United Kingdom gives effect to that right by affording the applicant a surrogate form of protection from persecution which the country of nationality should have afforded him.

The Case of Ghana

One case which is close to my heart, is our Ghanaian client who came to the UK in September 2012 as a visitor and overstayed. He was hoping for the situation for Ghanaians to change in his country of origin and that is why he didn’t claim asylum before. He experienced problems in Ghana when his wife discovered he was receiving messages from his long-term male partner. Eventually he had to flee, having been subjected to years of blackmail and humiliation by his ex-wife and society.

Under the 1960 Ghanaian criminal code same-sex sexual conduct is a criminal offence. This law is used to threaten, arrest and punish individuals for engaging in same-sex sexual contact. In 2013 Amnesty International and NGO Freedom House reported that violence against the gay community was prevalent and the prosecution of sexual minorities had escalated. In March 2015 a group of women suspected of being lesbians were pelleted with stones during a party in the greater Accra region. In 2015 the lesbian and gay community in the Nima area of Accra were being terrorised by a homophobic vigilante gang called “Safety Empire” whose aim was to wage a crusade against homosexuality.


Indian Sexual Minorities

We also have a client – a gay man from India. As part of his asylum claim we have obtained a report which demonstrates that the reason for the higher rate of suicide of gay people in India is because they are considered abnormal, and that they are obliged to keep their sexuality hidden. It is evident that the lesbian and gay community in India are the victims of social stigma that roots in parental rejection and substantiates in systematic discrimination in schools and in professional life. Such discrimination has been directly connected with the high rate of self-harm and suicide where circumstances are often too little investigated.

LGBT Pakistani Rights

We also act for several gay and transgender Pakistani clients. In 2012 the Ambassador of Pakistan at the UN expressed his view that lesbian and gay and bisexual rights have nothing to do with fundamental human rights, and qualified these kinds of relations as abnormal sexual behaviour. In Pakistan the gay community cannot secure effective protection from Pakistani authorities and the police act as accomplices instead of protectors.