How the Nationality and Borders Act is endangering queer asylum in Britain

“I tried to claim asylum, but they said my word alone wasn’t credible, and they rejected the evidence I did provide,” Adams, a bisexual man from Ghana said. “It’s so difficult to get evidence of your sexuality, especially as a black African man. No-one wants to associate with you, so you can’t be out, or live openly as a bisexual man.”

As an immigration barrister at Garden Court Chambers and a consultant lawyer at Rainbow Migration, a charity which supports LGBTQI+ people through the asylum and immigration system across the UK, we are finding that Adams is far from alone in his struggle to prove his sexual orientation to the Home Office – with the situation for people seeking asylum becoming even more impossible over the past two years.

Since the Nationality and Borders Act 2022 (NABA) came into law, we are in fact seeing a clear correlation between the higher standard of proof and more refusal decisions, a greater evidential burden on people seeking asylum, and higher expectations from decision makers. For LGBTQI+ people in the asylum system, there’s been a disproportionate impact.

The NABA was heavily criticised by lawyers, policy experts, campaigners and migrant communities as it passed through parliament, thousands mobilised against it in the streets, and bodies like the UNHCR cautioned that the higher standard of proof would make it more difficult for people to be recognised as refugees in the UK’s asylum process. Despite this collective warning, we are now seeing these fears plainly borne out.

Analysis of the Home Office’s latest immigration statistics has shown the grant rate for asylum plummeted in the past two years – from 75% to 52% – revealing a clear correlation between more refusals and the raised standard of proof. This, coupled with the Home Office’s rush to clear the asylum backlog, has also resulted in a significant drop in the standard of decisions themselves.

It will be those at the sharpest edge of this oppressive system, who are particularly isolated, marginalised and afraid, who are most at risk of not reaching this higher standard; and subsequently denied protection as a refugee.

LGBTQI+ people face disproportionate impact

For LGBTQI+ people, the damage is striking as the NABA has only exacerbated the pervasive racism, re-traumatisation and culture of disbelief within the UK’s asylum system, and required them to do the impossible: prove your sexual orientation, gender identity or gender expression

LGBTQI+ people claiming asylum have long had to endure the indignity of proving their actual or perceived sexual orientation, gender expression or identity, or intersex characteristics to the Home Office. However, for claims made before 28 June 2022, a lower standard of proof applied.

In practice, this means someone has to show it is “reasonably likely” they are LGBTQI+. The domestic courts have widely recognised this standard to be “low”; given the inherent evidential barriers facing people fleeing persecution, and the high stakes and risks involved if they are unjustly returned.

Post-NABA, for claims made on or after 28 June 2022, people must now prove it is “more likely than not” that they have a characteristic causing them to fear persecution. So again, that means showing that it’s more likely than not that you are LGBTQI+ if that’s a reason for seeking asylum.

However, we know that for many LGBTQI+ people escaping violence and harm, the only evidence they have is their own testimony. This is common for people who have been forced to hide their gender identity and/or sexual orientation, conform to cis-heteronormativity, or only lived their truth in total secrecy, due to the risk of imprisonment and criminalisation.

This is the case for instance for Adams from Ghana who found it close to impossible to gather such evidence given he couldn’t live life openly as a bisexual man. “I told them lots of stories about me which prove my sexuality, but they didn’t believe any of them. All I had was myself and my sexuality, but they said that wasn’t enough.”

Meanwhile Bahiru, a gay man from Ethiopia told Rainbow Migration: “How do I prove I’m gay? If my own parents that brought me to this earth cannot comprehend and understand that I was born this way, because I am who I am, how on earth am I going to explain that, to prove it to someone who has a different culture to me, who doesn’t understand the language and the syntax, who doesn’t understand where I come from – how do you prove that?”

“How do I prove I’m gay? If my own parents that brought me to this earth cannot comprehend and understand that I was born this way.”

LGBTQI+ people who have fled domestic, societal and state violence may also need time to build and find community in the UK, due to internalised shame and fear. This can be further compounded by the social isolation and trauma they face here, especially if they are detained or housed in unsuitable asylum accommodation, where LGBTQI+ people are more likely to face abuse and harassment.

In these situations, it is near impossible for people to provide any documentary evidence. They will have no evidence of living openly and being part of a wider LGBTQI+ community, no partners or friends who can support their claim, no access to queer or trans-specific services, and may struggle to build trust and describe their experiences – especially in the hostile and oppressive environment of a Home Office interview.

It has previously been acknowledged by the Home Office that documentary evidence in LGBTQI+ cases may be more limited. However, saying this in one policy, then raising the standard of proof in law, creates a disconnect between what should be sufficient, and what is in practice expected.

Culture of disbelief

The Home Office has been widely criticised for its culture of disbelief and the raised standard of proof has only made this worse. Interview times have been cut to two-hours, giving people less time to build trust to share their stories, and in our experience has led to even more confused decision making; with interviewers telling people to keep their answers brief, but then refusing claims based on there being “insufficient detail”.

The NABA entrenches a culture of suspicion, particularly for LGBTQI+ cases, both in interviews and in decisions, with the unfettered influence of preconceived and often Western-centric notions of LGBTQI+ experiences.

It is devastating for an LGBTQI+ person to have their asylum claim refused because the Home Office does not believe them. It compounds their emotional distress and prolongs the process indefinitely as they face the long road to an appeal or onward legal challenge.

This situation is only getting worse as we know the Home Office has essentially shifted its backlog onto the Tribunal; as the number of appeals lodged rose from 8,000 in 2022 to 29,000 in 2023 after the new law was passed.

“The number of appeals lodged rose from 8,000 in 2022 to 29,000 in 2023 after the new law was passed.”

Prior to NABA, the Home Office often applied too high a standard of proof, but the Tribunal’s independent judicial scrutiny and oversight could be relied upon, to some extent, to correct this. Almost half of appeals are currently successful. However, the situation going forwards will be more precarious since the higher standard of proof also applies to appeal decisions.

The impact in the Tribunal has yet to be seen. But the fact the Tribunal is under much more pressure to deal with cases quickly and efficiently, due to the significant increase in appeals, may impact how well-prepared people’s cases are and subsequently, could widen the margin for error in judicial decision-making.

This is also happening in a context where the majority of people seeking asylum do not have access to a legal aid lawyer, due to successive system-wide cuts. This lack of access to justice has a disproportionate impact on LGBTQI+ people, whose cases are considered more complex and resource-intensive.

So whilst the Home Office’s own post-NABA guidance references some of the difficulties LGBTQI+ people face in providing tangible evidence and self-disclosure, guidance is not sufficient to remedy the harm caused by the system itself.

And even if the Tribunal remains a useful check and balance on Home Office decision-making under the NABA, dragging out the process does irreparable damage to people’s mental health and pushes them into further precarity and vulnerability along the way.

Queer liberation and migrant justice

There have been long-standing and well-documented problems with asylum decision-making in LGBTQI+ cases; including Home Office refusals being replete with harmful stereotypes, prejudices and misconceptions about LGBTQI+ people’s lives.

But ultimately, the higher standard of proof further marginalises, stigmatises and ostracises LGBTQI+ communities through the UK’s border regime. This injustice is heightened for people of colour, given the racism endemic to British immigration laws and the fact most countries in the Commonwealth that still criminalise LGBTQI+ people do so as a direct result of British colonialism.

It is in this harrowing context that the system continues to disbelieve and remove LGBTQI+ people to countries where their lives are at risk. However, we must ensure that all LGBTQI+ people seeking asylum in the UK can rebuild their lives in safety and become part of our communities.

The current government has severed a lot of trust with the LGBTQI+ community in recent months over its harmful stance on trans rights. But by building upon our collective power and the deep connections between our struggles for queer and trans liberation and migrant justice, we can ensure that no member of our community is left behind.

It’s time to demand that the new government listens to us and turns away from the cruelty of the past and the mistreatment of people seeking safety. An essential step is to repeal the Nationality and Borders Act to reinstate the previous lower standard of proof which is vital to protecting lives.