The recent Supreme Court ruling that LGBT foreign nationals have a right to asylum in the UK is welcome, and long overdue. It also sheds a harsh light on the state of Home Office policy in this area.
In the days preceding the judgement, the UK had come under intense fire for the so-called ‘discretion test’ used by immigration officials to determine whether or not gay or lesbian asylum seekers should be granted refugee status or returned to their country of origin.
The United Nations High Commissioner for Refugees asserted that the UK had turned international convention “on its head.” Meanwhile, the UNHCR’s legal officer in London called the discretion test “an element that shouldn’t be there” in an interview with the BBC.
The most insidious aspect of the discretion test is the distinction it implies between identity and sexuality – that sexual preference (and its expression) is a lifestyle choice that can be put to one side if necessary.
Does the thought of returning to your repressive homeland make you fear for your life? Don’t worry, the solution is simple: pretend to be straight. Gay men, as long as you put the feather boa back in the dressing-up box and don’t hold hands with your boyfriend in public, you’ll be fine when you get home. And isn’t that the point?
No, of course it isn’t. The expression of sexual preference is as essential as skin colour, ethnicity and gender when it comes to identity, human rights and freedom.
Earlier this year, as reported in the Guardian, the Foreign Office, the Department for International Development and the Borders Agency were drawing up plans to ban Ugandan MP David Bahatti from the UK if he succeeded in having his Anti-Homosexuality Bill enacted.
If this had come to pass, we may have found ourselves in the ironic and deeply absurd situation of refusing entry to Bahatti but sending gay and lesbian asylum seekers back to Uganda to face criminal prosecution and, in some instances, the death penalty – all because of the discretion test.
Recommending ‘discretion’ is no less ridiculous (or offensive) than suggesting that women should dress as men or black people should wear white makeup, if it prevents them from coming to harm in a particular cultural setting. And if these really are the only options available to someone seeking to live a life free from harassment, abuse or imprisonment, then they have every right to claim asylum elsewhere.
As John Wadham, the Equality and Human Rights Commission’s group legal director, says: “A gay person should be allowed to live openly if they choose; concealing their sexual identity to avoid prosecution is not something they should be forced to tolerate.”
The new coalition government has, of course, been quick to pin its colours to the rainbow mast. Speaking immediately after the ruling, Home Secretary Theresa May said: “From today, asylum decisions will be considered under the new rules and the judgement gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality”.
Hopefully, Mrs May’s recent backing of civil partnerships and focus on homophobic bullying mean that this will not turn out to be an empty promise.
First published in Fyne Times