Historically law and sexual identity definition, expression and recognition have been closely intertwined. Immigration policy has served as the basis for the exclusion and delineation of, what was previously considered, deviant as well as acceptable sexualities respectively, throughout much of US history. It is through trying to identify sexual deviants, that the law came to define, create and regulate sexual norms, identities and behaviors. In 1891, for example, the Immigration Act was brought under federal control and defined exclusionary criteria which marked moral turpitude as a category unworthy of legal entry (Vogler, 2016). Though this category of differentiation was never explicitly defined, it came to be understood as encompassing sexual deviancy. Since the late nineteenth century, the homo-hetero binary structured citizenship in such areas as the military, welfare and immigration sectors, defining the proper citizen as heterosexual. Other government policies such as “Don’t ask, Don’t tell”, as well as key court cases such as Bowers v. Hardwick, introduced the status/conduct distinction to criminalize the act of homosexual sodomy.

Continuing into the 21st century, law still plays a role in not only how we understand sexual identity but how this definition evolves and is theorized. Modern queer asylum law works to consolidate sexual identities while simultaneously broadening the possibilities for wider recognition of marginalized queer identities. This is achieved by petitions having to prove which social category they fall into, requiring both the identification of the petitioner and the subsequent classification of the immigration officials. This, in effect allows for the codification of specific sexual identities in asylum law, while rendering apparent sexual subjectivities visible to the state. In addition, the flexibility of the social categories, as determined by petitioner subjectivity and state determination, allows for petitioners to stake out new claims based on their unique sexualities, although this does not seem to be the case.

The introduction of sexuality as a social category worthy of asylum, was a relatively recent development which occurred in the late 20th century. The initial 1951 United Nations Refugee Convention established five categories of asylum seekers alone including: race, religion, nationality, political opinion and membership in a particular social group, where initially US asylum seekers had to prove on a case-by-case basis that sexual identity belonged to the category of particular social group listed in the convention. It was only after the landmark case of Taboos-Alfonso, a cuban gay man, in 1990, that the then attorney general Janet Reno declared that decision to serve as precedent for future cases in 1994.

How does the process work?

Asylum seekers must prove two things:

1. His or her sexual identity as the basis for the membership in a particular social group (PSG)
2. Either past persecution or well-founded fear of persecution on the basis of that particular identity

In terms of proving one’s sexual identity, a same-sex relationship would be considered ideal, though given the circumstances of danger of such a relationship, this can also be proven with testimony from family or friends, or evidence of activity in Queer activism/social groups. Given that asylum seekers may not be out in their respective countries, due to the fear of persecution, this can prove difficult, for this particular social group (Vogler, 2016). Unfortunately, though the law does allow for the petitioner’s testimony alone, most judges need some form of corroboration.

When it comes to persecution, both past persecution and well-founded fear of future persecution are acceptable and defined as “sustained or systemic violation of basic human rights demonstrative of a failure of state protection (Vogler, 2016, pg. 863).” The persecution can be emotional, psychological and/or physical. Fear of future persecution can be determined on the basis of testimony as well as a country’s history of human rights violations outlined by Human Rights Groups, which are normally sought to be backed by the U.S. State department.

Immigration Detention in the UK

As much as the process of LGBT asylum can help to create more fluid forms of sexual identities juxtaposed to the more fixed determination within the West’s general understanding of sexual identity, migrants of this social category still face a number barriers to successful entry to host countries, such as the UK.

Detention centers in the UK are among the largest networks in all of Europe. Immigration detention is defined as the ‘deprivation of liberty on immigration-related grounds’ and is the temporary home for asylum seekers who have been detained due to immigration related issues. In the UK detention does not have a specified limit of time, making it unique amongst other regions in Europe as well. Additionally, in the UK detention lacks automatic judicial oversight. In terms of how this affects detainees, this essentially means that immigration detainees do not have ‘the certainty of a prison sentence with a determined period of detention, nor the well-developed checks and balances that guard against against the arbitrary imposition of power in the criminal justice system(Singer, 2021, pg. 239).’ Detainees also deal with physical and verbal abuse from staff, wrongful detention as well as propensities towards self-harm and suicide.

As mentioned earlier, LGBT asylum seekers must prove their sexuality in order to gain asylum in their desired country, which can often result in the negative assessment of the perceived credibility of asylum applicants and as a result a growing number of asylum seekers within this particular social group face detention or deportation on the basis of disbelief as it relates to their claims.

Western states rely on regimes of sexuality that only acknowledge certain forms of being that must fit into predetermined identities, such as lesbian, gay, bisexual or transgender identities who are typically “out and proud”. This approach fails, as it hinders asylum seekers who do not fit into this mold, in effect ignoring the complexity of sexual and gender self-identification experienced by many migrants and asylum seekers originating from the global South. This comes into play, as members of this social group, in response to the persecution they have experienced or fear, would limit their disclosure of these very same identities from which they seek to enter their host country. This non-disclosure then becomes a strategized means of survival that is used by host countries to limit the very aim it serves - survival. Also, in addition, given the abuse and persecution, LGBT asylum seekers often develop a deep seated homophobia related to feelings of shame, which may serve to further limit the expression of their sexual identity within the judicial arena. Despite these realities, research conducted by Millbank and Berg in 2009, observes that ‘Refugee decision-makers in both Australia and the UK have been slow to fully absorb and apply the insight that gay people are secretive about their sexuality and relationships as a result of oppressive social forces rather than by "choice" (Singer, 2021, pg. 4).

Process of seeking Asylum

In order to support their claims of asylum, LGBT asylum seekers must bolster their claims with evidence which can range from reports, documents, photographs, emails, letters and if possible, even witness statements.

One detained LGBT asylum seeker Romy, from Zimbabwe, explained:

“Before I ended up in detention, I didn’t feel the need to go outside and shout ‘Yes, I’m a lesbian.’ Now it’s like everything I do I have to prove something. If I don’t put pictures of myself or my new haircut on my Facebook they will be saying I’m not open enough. ... It’s not about who you are, it really isn’t; it’s never been about who you are. You know it’s just about who you say you are and how much you can prove that you are who you say you are. It’s ‘How much of a lesbian are you? Do you go to gay clubs? Do you hang around with other lesbians? How many lesbians can write a letter for you to say, ‘Yes, I know her, she’s a lesbian’, and of those lesbians how many of those lesbians have been accepted by the Home Office or are British? (Singer, 2021, pg.255)’”

Future Research

So how does the future for LGBT asylum seeker community look? A recent paper published in 2022 by the Williams Institute at UCLA School of law, highlights limited research in this area as a function of the lack of information pertaining to the number of identifiable LGBT asylum seekers globally. To this effect, amongst researchers, community members, academics and leaders, “There was broad consensus regarding the need for more systematic collection of quantitative data with measures of sexual orientation, gender identity, and variation in sex characteristics (Shaw et. Al, 2022, pg. 2).” Within the discussion things such as quantitative data was pinpointed as “useful to present clear and concise arguments to governments and other stakeholders about demographics of challenges uniquely facing LGBTQI+ migrants” because it “allows stakeholders to develop targeted interventions and to better advocate for specific law and policy changes (Shaw et. Al, 2022, pg. 3).”

In terms of the persecution in the country of origin, they also highlighted the need for utilizing and bolstering research conducted by researchers within the home country, as opposed to the current methodology of research into harassment and difficult living conditions for this social group conducted by the Global North. This geographic diversity in research will enable the contextualization of the abuse that migrants experience in their country of origin, as well as highlight the nuances within cultural displays of discrimination and harassment which may not be existent within the home country’s legal system per se, but significantly threatening enough to dramatically influence quality of life and life expectancy for this community.

Another area of research concerns not only information on actors and direct contacts with the LGBT asylum seeking community within the host country, but also research surrounding the judges and judicial decision-making to “better understand the nature of rulings by immigration judges or how judges may apply refugee law on the basis of preconceptions or stereotypes regarding sexual and gender minorities (Shaw et. Al, 2022, pg. 6).” This is because these stereotypes can impact future migrants such as the likelihood of success in immigration processes. One major barrier here is the lack of governmental research for example conducted in the US, the lack of government publicly accessible documentation regarding LGBT immigration cases seriously impedes research into ameliorating this area of immigration.

The full paper is quite lengthy and highlights a number of different opportunities and pain points as it relates to this area of research, I would highly suggest it for further reading in this regard. The existence of such a meeting with key proponents of these integral changes impacting the lives of such a vulnerable group, make for a hopeful future surrounding the case of LGBT migrants and I look forward to policy changes and more opportunities for the betterment of this section of society on a global scale.

References

Shaw, A., Mackintosh, K., & Morley, S. P. (2022). EXPERT CONVENING ON LGBTQI+ REFUGEES AND ASYLUM SEEKERS: Summary and Recommendations. The Williams Institute at UCLA School of Law. http://www.jstor.org/stable/resrep42553

Singer, S. (2021). ‘How much of a lesbian are you?’: Experiences of LGBT asylum seekers in immigration detention in the UK. In R. C. M. Mole (Ed.), Queer Migration and Asylum in Europe (pp. 238–260). UCL Press. https://doi.org/10.2307/j.ctv17ppc7d.18

Vogler, S. (2016). Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims. Law & Society Review, 50(4), 856–889. http://www.jstor.org/stable/44122547