Legal News

There are two fundamental concerns regarding the detention of lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. The first is that these types of asylum claims are inherently complex and as such are not suitable for detention; the second is that detention is not appropriate due to the discrimination and abuse LGBTI persons are subjected to in detention and the persecution they have often experienced which forms the basis of their asylum claim.

I represent a client who was allocated to the DAC process; despite his disclosure to the Home Office that he was questioning his sexual and gender identity. Whilst I was successful in securing my client’s release from detention, this case, amongst others, brought to my attention the difficulties faced by many LGBTI persons who are detained in the UK.

UKLIG outline in their 2015 submission to the trans equality inquiry that ‘Sexual and gender identity claims are inherently complex and LGBTI people face specific difficulties not experienced by other asylum seekers’.

This is a principle that was recognised by Lord Justice Moore-Bick in R (JB) Jamaica, who outlined that asylum claims, on the basis of sexual identity, requires evidence and careful consideration which cannot be satisfied within a period of approximately two weeks.

Despite the case law and evidence that LGBTI cases are inherently complex, and unsuitable for a quick determination within the DAC, the Home Office continues to consider such claims in this manner, with no regard for the wider consideration of the potential re-traumatisation LGBTI persons may experience in detention.

UNHCR in their December 2015 report highlighted that LGBTI asylum seekers often face discrimination or abuse in reception and detention centres throughout Europe.

The UK Lesbian & Gay Immigration Group (UKLGIG) in 2016 outlined concerns about the plight of transgender persons, and others fleeing persecution based on sexual orientation or gender identity, held in immigration detention.

The All Party Parliamentary Group on Global LGBTI Rights in the April 2016 report observes that many LGBTI asylum seekers have a fear or reporting discrimination or abuse experienced in detention, and that many become re-traumatised as a result of being detained.

There are also various reports that address the rights of transgender women in detention in the UK, including the 2016 Shaw Report; the March 2015 report of the All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration; and the 2014 Vine Report.

Whilst there is clearly discourse taking place on the treatment of LGBTI asylum seekers in detention, the Secretary of State for the Home Department has failed to implement a policy/system which protects the rights of the LGBTI community. The evidence of these reports demonstrates that detention is likely to result in abuse and harassment which is disproportionate to the reasons for detention, and cannot be justified by the Secretary of State for the Home Department.

In relation to my aforementioned client’s asylum claim, we are challenging the Detained Asylum Casework (DAC) process, in light of the Detained Fast-Track process being deemed unlawful. My client’s claim was considered under the DAC, despite his particular vulnerabilities. In this particular case, I am hoping to ensure that the Secretary of State for the Home Department recognises that LGBTI people are vulnerable, and should not be detained, nor their cases considered under the DAC process.

About the author: Lauren Mayer joined Duncan Lewis’ Immigration/ Public Law Department in June 2014 as an Immigration Caseworker. Lauren has volunteered for the Free Representation Unit giving pro bono legal advice and legal representation in Employment law and interned with Reprieve assisting on death penalty cases in South East Asia.