As part of our Who is Welcome: Gender, Queerness and Migration campaign, we explore how the burden of proof harms queer, trans and GNC people in the asylum system.

As part of our Who is Welcome: Gender, Queerness and Migration campaign

The asylum system places a burden of proof on an asylum seeker. The ‘burden of proof’ is part of the Home Office’s ‘culture of disbelief’, whereby people claiming asylum because of their sexuality and/or gender identity face extensive hurdles to prove their sexuality and/or gender identity as well as that they are at risk of persecution because of it. 

While “the burden is on the applicant to establish their case” in all asylum claims, the nature of queer and trans asylum seekers’ cases is that it becomes a debate about their identity, which they have to go to extreme lengths to prove. This has worsened as a result of increased standards of proof under the Nationality and Border Act 2022. Their ‘reliability’ centres on something that is intangible and not always as straightforward as caseworkers, with little understanding of queer and trans experiences and identities, want it to be.

As part of our campaign on the experiences of queer and trans migrants, we have been researching how queer, trans and gender non-conforming (GNC) people are marginalised by the asylum system. 

Sexuality isn’t always static

Despite caseworker guidance nominally taking into account non-linear experiences of sexuality and gender identity, e.g. people who have come out later in life, including formerly being in a “straight” relationship, it is clear that the expectation of a linear narrative does in fact work against people.

Home Office assessors rely on stereotypical and predictable narratives and experiences of people’s sexuality and gender identity. This can look like realising you were “different” at a relatively young age, feeling stigmatised by your peers and wider society, with no changes in your understanding of your identity, then feeling shame about your identity and experiencing harm as a result. This is an unrealistic and not necessarily common model; due to trans- and homophobia and enforced cisheterosexuality, people may identify as straight and cisgender for some period of their life before realising they’re not, even marrying and having children in this role. Home Office assessors are supposed to take this into account when judging someone’s credibility, but should not immediately discount their claim. Again, we know that this is not always the case and works against people’s claims, despite how common this is.

People may also identify with different non-heterosexual sexualities, such as bisexuality but eventually finding that they’re a lesbian. This is amplified for people with fluid sexualities, especially accompanying gender fluidity or various gender presentations. Home Office assessors take this to mean that a person’s account of their sexuality and gender identity is unreliable, that they must know their identity and experiences better than the person being interviewed. 

These experiences are well-known within queer and trans communities. These expectations have also been challenged by queer and feminist theorists for decades. An example of this is Eve Sedgwick’s work, where she challenges the binary of closeted/out.

‘Passing’

‘Passing’ refers to when queer and trans people can appear to others as straight and cisgender. Often ‘passing’ is wrongly taken to mean that someone is not subjected to homophobia or transphobia, meaning for an asylum seeker that they are not believed to be at risk of persecution. 

Home Office guidance also recognises that pressures to ‘pass’ can be due to homophobia, where people “conform to normative cultural heterosexual stereotypes” as a means of survival. Yet this doesn’t mean that people who ‘pass’ or otherwise perform cisheterosexuality don’t experience trans- or homophobia. There may be some level of protection from street harassment, but if someone is unable to change their gender marker on formal documents or is outed at work, then there is no protection that any appearance or presentation can give someone from the harassment that follows. 

Passing does not offer genuine safety or protection, as whatever initial protection it may provide is always at significant risk of being lost.

Relying on Western stereotypes

Western hegemony has meant that culturally-specific queer and trans cultures have been universalised, i.e. these stereotypes are incorrectly applied to other cultural contexts. For asylum seekers, this can mean that the use of concepts and language by and the behaviour and appearance of queer and trans people can work against their case, as Home Office assessors measure them against their own preconceptions specific to Western societies. 

Home Office guidance again highlights the different appearance of queer relationships in different cultural contexts, as well as third gender and agender asylum seekers, which may be recognised but persecuted groups in different countries, e.g. Hijra in India. Language is also often different, as communities in Brazil have raised, deeming English terms around gender and sexuality a result of US hegemony. This means that Western categorisation overrides local self-definitions of identity and experience. The Home Office recognises this, but we have found problems in the use of translators who don’t necessarily accurately communicate how an asylum seeker is discussing their identity and experiences.

As a result, one of the ways that the Home Office will investigate ‘proof’ of identity is by going through asylum seekers’ phones, including social media and other apps, and looking for behaviour that ‘signals’ queerness and/or transness. This can only be measured against preconceived notions of what queerness and transness are and look like.

Demanding queer and trans People of Colour conform to Western-specific constructions of queerness is racist, erasing cultural-specific identities and measuring People of Colour against white, Western cultures. It is also homophobic and transphobic to solely rely on stereotypical conceptions of queer and trans people. We oppose holding queer and trans asylum seekers to a higher standard than citizens in order to be recognised as queer and trans.

The burden of proof facing queer and trans people seeking asylum is disproportionate. It does not account for the complexity and fluidity of sexuality and gender, which make them particularly hard to ‘prove’, especially for those who do not fit the mould expected by Home Office assessors. This often leads to invasive and offensive questioning for queer and trans asylum seekers, forcing them to jump through additional hoops to be believed.

Access to safety and the freedom to move or to stay somewhere should not depend, however, on proving an identity to the state. These freedoms should be fundamental to everyone, regardless of whether they can meet a certain standard of proof, and yet are denied by bordering regimes, propped up by the UK asylum system. The only way we can achieve true ‘international protection’ for all is to abolish borders and the harm that they cause. While the burden of proof causes specific harms to and falls especially heavily on queer and trans people seeking asylum, these harms therefore demonstrate the broader necessity of border abolition.

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