Papers

Fleeing Homophobia Conference

VU University Amsterdam, 5 and 6 September 2011

Credibility Assessment in LGB cases: the case of the UK

Amanda Gray 1

In this short time we have, I want to present the example of the UK and how it has dealt with the challenge of credibility assessment in LGB cases. As the UK is one of the first EU member states to introduce policy specifically for LGB cases as well as provide specific LGB training to case owners, I hope that what we learn from their experience can help inform how we work in our own individual states to improve the practice of credibility assessment of LGB cases.

In the UK credibility is too often the key determinant in an asylum decision. It is of even greater, indeed critical importance in LGB cases as believing the applicant is gay, lesbian or bisexual is fundamental to a finding they come within the protection of the 1951 Refugee Convention.

UKBA is the government body in the UK with responsibility for processing applications for asylum and international humanitarian protection. 2 Until recently, UKBA was vulnerable to serious criticism over its handling of LGB cases. For example, the UK Lesbian and Gay Immigration Group (UKLGIG), in their report Failing the Grade, had found a 98-99% rate of refusal for asylum applications based on sexual orientation by UKBA compared to 76.5% refusal rate for other claims. 3 Hence, practitioners and NGOs have been lobbying for a new

1 2

UNHCR, London. http://www.ukba.homeoffice.gov.uk/asylum/ 3 The UKLGIG report was an analysis of what UKLGIG called, the disproportionate scale of LBGT asylum refusals. See: http://www.uklgig.org.uk/docs/publications/Failing%20the%20Grade%20UKLGIG%20April%202010.pdf

approach towards the credibility assessment of those claiming asylum due to their sexual orientation. 4

This change eventually came about when political, judicial and social pressures came together. In April 2010 UKLGIG published their report entitled Failing the Grade which criticised the way UKBA handled applications from LGB applicant. In May 2010 Stonewall wrote a report called No Going Back which largely echoed the criticisms raised by UKLGIG. On 7 July 2010 the Supreme Court judgment of HJ (Iran) and HT (Cameroon) was delivered. This mix of judicial progress, a strong voice in civil society and the political will (an announcement by the Home Secretary after the decision of the Supreme Court) begin to move the ball forward for change in how LGB decisions were made. This included how credibility would be assessed.

Following these developments, UKBA entered into engagement with specialised NGOs and civil society, such as London NGOs Stonewall, UKLGIG as well as UNHCR. A new specific LGB Asylum Policy Instruction was published on 6 October 2010.5 Following that, the UKBA NAM+ Learning and Improvement Team developed a Training programme piloted for the first time in front of NGOs and UNHCR in November 2011.

So, what has the introduction of training and policy in the UK achieved? And what can we learn from their experience?

The first thing to say is that the introduction of specific LGB training and policy is to be very much welcomed. It is a most positive and essential step for a decision making body to take to improve the credibility assessment in LGB cases. Policy creates standards by which decision makers can gain guidance and also to which they can be held to account. Training is key to embed that standard on the ground. Fellow presenters will have focused on the difficulties of credibility assessment in these cases and the bad practice that can arise. So I

For example, recommendations coming from the Stonewall report included UKBA policy and UKBA training specific to LGB cases for all UKBA case owners with a focus on how credibility is assessed. (page 34). 5 http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/se xual-orientation-gender-ident?view=Binary

will spend more of the time I have to look at the Training and Policy and how it attempted to address areas of concern.

The UKBA LGB Asylum Policy and Training sought primarily to address biases, prejudice and cultural barriers that had unfairly been impacting credibility assessment. The Training sought to challenge and develop self- awareness and diversity amongst case owners as well as critical thinking so that decision makers could be in the right frame of mind to handle information provided to them appropriately. The Asylum Policy Instruction deals with presumption around appearance, stating that although an individuals appearance or demeanour may have a bearing on the persecution suffered in the country of origin, stereotypical ideas of people, such as an effeminate demenour in gay men or a masculine appearance in lesbians (or a lack of) should not influence the assessment of credibility.

Both the Policy and Training cover the issue of late disclosure or coming out late. Coming out late has been used to damage credibility significantly, as was picked up by both UKLGIG and Stonewall in their research. The Policy invites decision makers to investigate the mitigating reasons as to why an individual may come out late. It states that an adverse judgment should not be drawn from someone failing to disclose their sexual orientation at the screening phase. However, it is perhaps regrettable this same strong position is not taken in regard to the substantive interview, as many applicants will not be ready to come out while others may not self-identify at all. The Training facilitates discussion with delegates about whether or not it is reasonable to expect someone to disclose their sexual orientation in the screening or substantive interview, leaving delegates to reach their own conclusions.

The Asylum Policy deals with the issue of self-identification and its evidential importance. This is of central concern in LGB cases because in such cases the applicants personal testimony may be his or her only evidence. The new Asylum Policy states generally speaking self identification as a lesbian, gay or bisexual will be the normal starting point as an indication of a persons sexual orientation. It is welcome, but perhaps could be even clearer as to being itself indication rather than a starting point. This would then be in line with the UNHCR Guidance Note on Sexual Orientation (2008) which states, self3

identification as LGBT should be taken as an indication of the individuals sexual orientation. In light of the difficulties with this issue in LGB cases on the ground, it is perhaps a gap that self-identification was not covered specifically in the current draft of Training.

Finally, a key area targeted by the LGB Policy and Training is the importance of identity as opposed to conduct. This was one of the key areas of concern of both UKLGIG and Stonewall in their recent reports. That is, a focus on sexual conduct and behaviour. For example, are they married, do they have children, have they had any gay or lesbian relationships in their country of origin or country of asylum? The Asylum Policy states that such behaviour or lack of it, does not necessarily mean that s/he is not lesbian, gay or bisexual and provides a mitigating reason: it may be that he individual was fearful of the implications of acting on his or her sexual orientation. (p.10) The Training supports the Policy by facilitating discussion amongst case owners to challenge their perceptions as to how LGB people should behave. For example, it asks Do all straight people go to nightclubs to meet partners? Why should it be different for gay, lesbian or bisexual people. As Millbank as argued, this type of space is key in providing a place for critical self-reflection on what might unfairly impact a credibility assessment and so it is a welcome aspect of the training.

The Training is also pragmatic so if there are things that cant be asked, what does a good interview look like to gather the evidence required for credibility assessment? It talks about, what it calls the BIG question how can we tell if someone is actually gay, lesbian or bisexual? What should we ask? Delegates are asked to comment on questions that have been asked in interviews, which are all about sexual conduct and reflect on why they might be inappropriate. The Training teaches the need for questions to be 1) sensitive and 2) able to properly test the evidence and teaches that such conduct based insensitive questions do neither. At this stage of the training there is also considerable diversity and equality element to the training, which is welcome. The Policy explains that the credibility of an individuals claim and the degree of risk on return should primarily be tested by a sensitive enquiry into the applicants realisation and experience of sexual orientation, both in the country of origin and in the UK. For example it states; Interviewing officers should ask open questions that allow applicants to describe the development of their identity and how this has affected their 4

experiences in their own country and in the UK. This is welcome and policy is needed to be strong on how a correct credibility assessment will investigate the coming out of the applicant, his personal journey of discovering difference, while bearing in mind this process may not fit the stereotypical model one might expect, in a UK cultural context.

In conclusion I would like to spend some time summarizing what lessons can be gained from the UK experience and then to see the challenges that remain even while recognizing these very positive developments. So, what can other countries learn from the experience of the UK?

It is clear and I argue that specific LGB Asylum Policy and Training, in line with international standards and accessable to all decision makers, is an essential first step to enable change in how credibility assessments are approached in this type of case. In addition, what made the UK Policy and Training successful is in part the constructive dialogue and engagement between government and specialized NGOs and civil society.

We must then, however, look ahead and recognize the challenges that lie ahead. Training should be continuous and monitored for its effectiveness through evaluations of audits of decision- making quality to ensure policy is being implemented. In the UK, this would include adequate data collection to dispel myths about the numbers of LGB claims (something the UK government has recently begun to collect). This monitoring and auditing is key in an area like credibility assessment and it is indeed welcome that UKBA are currently undergoing a full audit of the quality of all asylum cases brought on the grounds of sexual orientation.

Further, any training and policy should be regularly revisited by civil society and the decision making body, in light of the fact LGB rights is a fast moving area of international law.

Finally, it is important to keep in mind the complexity of credibility assessment in such cases. Away from the theory, at the desk, it will come down to an individual interpreting the evidence before her or him to make a decision, and this, even with good policy, in the wrong hands, is open to flaw, abuse and error. Robert Thomas has written about these 5

inherent difficulties of credibility assessment. He argues that as it is conducted by human beings they bring an element of subjectivity into the decision making process. Thomas calls this the presence of self.
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The challenge for ensuring fair credibility assessment in LGB

cases is to ensure the presence of self is a minimal as can be possible.

In conclusion, the case of the UK can provide a welcome example to other EU states on how to work toward improving the credibility assessment methods in LGB cases. Good quality training and policy is key. Engagement with civil society will help ensure the quality of both is there. Continuous training and monitoring of their effectiveness on the ground is crucial, including through thematic audits of the quality of decisions. However there will always remain inherent difficulties with credibility assessment that are as real in LGB cases as in any other. The presence of self as Thomas calls it, the need for critical space for self-reflection, the educational level and asylum experience of the decision maker and the presence of demands of evidence and processes. These challenges must not defeat us, so that we continue to address those areas to ensure continual progress to improved and fair credibility assessments in these cases. There is so much more I could say. However, due to time I will leave it at this.

Thank you for listening.

R. Thomas. Administrative Justice and Asylum Appeals. Oxford: Hart Publishing, 2011, page 84