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Gay Times Law by Clive Sanders LLB

10 : Asylum

Summary of Asylum Law

UN Refugee Convention 1951

As a signatory to the 1951 UN Refugee Convention the UK has a legal duty to process asylum applications and offer protection to refugees. A refugee is defined as a person who:

“Owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of origin and is unable or, owing to such fear unwilling to avail himself of the protection of that country…”

In reality, in order to limit numbers of asylum seekers hurdles are placed in the way of potential asylum seekers to prevent refugees from being able to leave their country to seek safety in the UK. Imposition of strict visa requirements for certain states together with The Immigration (Carriers Liability) Act 1987 (under which Airlines are fined £2000 for each passenger they bring to the UK without the right visa) make it almost impossible for refugees to travel to the UK in the first place.

Claiming Asylum on the grounds of Sexual Orientation

For a long time the Government would not accept the idea that gay men and lesbians who faced persecution in their home country because of their sexual orientation should be recognised as refugees. However, in March 1999 the House of Lords decided in the case of R v IAT ex parte Shah 1999 that gays and lesbians facing persecution in their home country would constitute a 'social group' and could therefore qualify as refugees.

In order to bring a claim for asylum on the grounds of sexual orientation applicants need to show that there is a reasonable degree of likelihood that if they were returned to their home country they would face serious harm because they are gay or lesbian. Serious harm must come from either the government authorities or other sections of the population from which the government is either unable or unwilling to provide protection.

Serious harm might include the possibility of extra-judicial execution, physical violence, torture and denial of liberty. It may also include very serious discrimination. Prosecution for consensual same sex acts may of itself amount to persecution.

In order to sucessfully claim asylum on these grounds an asylum seeker therefore has to show that the persecutions of gays and lesbians is quite severe. This is reflected in the fact that only about 30 applications on the grounds of sexual orientation have ever been granted. Of these most have been from Islamic countries with strict laws and where homosexual acts are punishable by death or where the lives of lesbians and gays are under serious threat, such as Jamaica and Nigeria.


Asylum seekers already in the UK can make an application by writing to the Home Office or by attending the Asylum Screening Unit at the Home Office in Croydon..

If you are outside the UK, asylum seekers can make a verbal application for asylum on arrival at any port. They will be interviewed about their history of persecution and given 5 days to collect evidence to substantiate their claim. While, in principle, it is possible to apply for asylum at a British Embassy or High Commission, such applications are invariably unsuccessful.

Before making any such application we would strongly recommend contacting a solicitor specialising in asylum law to assist your application since you may be interviewed in depth about your fear of persecution soon after you apply or given a questionnaire which needs to be filled out very quickly. Click on the “Further advice” link at the bottom of this page for details of gay friendly firms of Solicitors