Earlier this year, we received responses from the Home Office to our Freedom of Information (FOI) requests regarding the treatment of queer and trans+ migrants, including people seeking asylum, in the UK immigration system. It has been disappointingly difficult to get any real answers from the Home Office – many of these responses revolved around guidance instead of practice, including where we know that Home Office practitioners deviate from that guidance. It is also important to note that the Home Office does not record data on gender identity, and so the experience of trans+ people in the asylum system are somewhat invisibilised. This is compounded by the outdated guidance regarding trans+ people seeking asylum.
Inadequate training
The Home Office reported that Home Office staff receive training on assessing people’s asylum claims on the basis of sexuality and gender identity. This includes a full day module for interviewers covering LGBTQ+ issues, religion and faith and a module for decision-making staff. The objectives of this training were said to carry out interviews “effectively and sensitively” (for interviewers), to instruct how LGBTQ+ identities can be persecuted and how to assess credibility and risk, including if someone was to be deported (for decision-makers).
This training is carried out in line with Article 1(A)(2) of the Refugee Convention and the Nationality and Borders Act 2022, the latter of which criminalised seeking asylum through irregular routes of entry, in violation of the Refugee Convention. Assessors are also taught how to apply Supreme Court case law, including HJ (Iran) and HT (Cameroon) v Home Secretary. This case centred on the Home Office’s claim that the two claimants, HJ and HT, could simply pretend to not be gay in their countries of origin and so could be refused asylum. This resulted in the rejection of the ‘discretion test’, establishing instead a four-tier process for determining asylum claims for LGBTQ+ migrants (detailed below).
(i) Is it reasonably likely that X is gay [or LGBQ] or will be perceived to be gay [or LGBQ]?
(ii) Is there a real risk that gay men [or LGBQ people] would face persecution if they lived openly in X’s country of origin?
(iii) Would X in fact live ‘openly’ (or would X conceal X’s sexual orientation) if returned to the country of origin?
(iv) If the answer to question (iii) is that X would conceal X’s sexual orientation, why would X do so?
The ‘burden of proof’
We asked the Home Office whether they have and/or do accept(ed) sexually explicit material as ‘proof’ of their sexuality – a key part of asylum claims on the basis of sexuality, but an often difficult thing to prove to another person. We also asked whether EU law on the matter had been retained, as guidance on assessing such claims cites EU law as the reason for banning asking sexually explicit questions and accepting or encouraging sexually explicit material to be submitted.
On this latter point, they confirmed that EU law had been retained here as part of the European Union (Withdrawal) Act 2018, with the caveat that the Supreme Court and High Court are not, however, bound by it.
With regards to accepting sexually explicit material, the Home Office simply repeated to us the guidance on this. They stated that staff are banned from asking questions about sexual practices or that “may invite sexually explicit disclosure”, as well as from inviting, accepting or encouraging “narratives involving explicit sexual activity” or sexually explicit material produced by the claimant. The guidance is said to emphasise Home Office workers to “sensitively explore sexual identity rather than sexual practices”, particularly as it has little evidential value.
However, through individuals in our Network, we are aware that sexually explicit material is being accepted and, to some degree, encouraged. The SOGICA Project also found that there was an expectation for queer people seeking asylum to be sexually active. It is significant, then, that the Home Office answered our question by referring to guidance, including avoiding the second part of our question “Has [the Home Office] accepted explicit material in the last four years (from 1 December 2019)?”
“I am in an African Queer community and some people were keen to know more about the set of evidence I used. Most of them were shocked that I didn’t send photos being intimate with a partner.” – member of MRN community
Accommodation
We were unable to find any publicly available guidance on how the Home Office deals with housing trans+ people who have claimed asylum. Queer people in our Network have also expressed discomfort in single gender accommodation due to homophobia. This has also been widely reported, including for trans+ people seeking asylum, and including abuse by staff.
The Home Office replied that this is decided on a case-by-case basis by accommodation providers, in accordance with the allocation of asylum accommodation policy. Nowhere in this policy are trans+ people mentioned (although the list of vulnerable persons is non-exhaustive). However, when we then contacted the Home Office’s accommodation suppliers, Mears, Serco and Clearsprings, they refused to answer, citing their exemption from the Freedom of Information Act.
A report by the Women and Equalities Committee last year included testimony from researchers, charities and witnesses about queerphobic abuse from other people seeking asylum and staff in asylum accommodation. It is troubling, therefore, that no change in government policy towards housing trans+ people seeking asylum appears to have occurred and no housing providers seem to have policies to safeguard trans+ people in their accommodation.
Refusals and appeals
When we asked about the refusal rate and percentage of successful appeals for people seeking asylum due to being queer and/or trans, the Home Office directed us to the Experimental Statistics: Asylum claims on the basis of sexual orientation, year ending June 2023 dataset (accessible here). From this, the refusal rate for 2022 was 27.8%, a decrease from 35.6% in 2021. Successful appeals have slightly decreased, however, from 47% in 2020 and 44.2% in 2019 to 41.4% in 2021.
The Home Office admitted that their data for this is highly incomplete, as reasons for refusal, whether sexuality was the sole or main reason for the claim, people who had been granted protection through other routes (e.g. protection schemes), and more were not listed in the data.
As no data is held on gender identity, trans+ people are essentially invisibilised within Home Office statistics. This is concerning following an increase in hostility to trans+ people throughout the UK, including in the asylum system.
Barriers to healthcare and forced detransitioning
Access to healthcare has been a key problem for trans+ people in the UK, and one that has worsened over the last few years. Due to reports from trans+ people in the asylum system and immigration detention of being forcibly detransitioned by being denied access to Hormone Replacement Therapy (HRT), we felt it was important that we ask whether trans+ people seeking asylum have “timely and adequate” access to trans-specific healthcare.
Our response was another repetition of Home Office guidance: All asylum seekers and refugees are able to access primary and secondary NHS healthcare in the same way as other UK residents. For trans-specific healthcare, “NHS England commission gender identity services and access to medication is based on clinical need.”
This response is wholly insufficient. As far as we are aware, there is still no policy that exists for trans+ people seeking asylum to start or continue medical transition, which is something that trans+ people seeking asylum and refugees have raised. Comparable existing policies for trans+ people in the immigration system, for example in immigration detention, have been criticised.
The response also neglects the fact that trans+ healthcare on the NHS in the UK has become practically inaccessible for many, regardless of immigration status, due to years-long waiting lists (often over five years). In referring only to primary and secondary care, too, this immediately cuts off any chance for trans+ asylum seekers to receive transition-related healthcare beyond HRT, such as top or bottom surgeries (there’s also Facial Feminisation Surgeries (FFS), but the NHS usually doesn’t cover this), which are classed as tertiary care. Essentially, existing policies of healthcare access for trans+ asylum seekers therefore deny them the right to transition.
It is clear that queer, especially trans+, people in the asylum system face unfair and discriminatory treatment, as evidenced by anecdotes from members of our Network and by the inability of the Home Office to adequately answer our questions on how they treat them. From the punitive burden of proof policy to the highly medicalised approach to transness, it is clear how important it is to shed light on and resist the UK’s hostile immigration system and the effects it has on queer migrants.
You can find more work we have done on queer migrants, including trans+ migrants, in our Gender, Queerness and Migration campaign.
If you have been affected by any of the above policies, please email [email protected]