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Great Britain: Whether Britain accepts refugee claims based on sexual orientation in the "membership in a particular social group" ground of the 1951 Geneva Convention

Publisher Canada: Immigration and Refugee Board of Canada
Author Research Directorate, Immigration and Refugee Board, Canada
Publication Date 26 November 1999
Citation / Document Symbol GBR33233.E
Reference 2
Cite as Canada: Immigration and Refugee Board of Canada, Great Britain: Whether Britain accepts refugee claims based on sexual orientation in the "membership in a particular social group" ground of the 1951 Geneva Convention, 26 November 1999, GBR33233.E, available at: http://www.refworld.org/docid/3ae6ad5c6c.html [accessed 18 December 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

The Research Directorate was unable to obtain recent statistics on the number of refugee claims relating to "persecution" for reasons of sexual orientation that were accepted or rejected in the United Kingdom.

The United Kingdom is a signatory to the 1951 Geneva Convention and the 1961 Protocol relating to refugees (RLC July 1996; IND 18 June 1998). A July 1996 Briefing Paper entitled "Claims Based on Sexual Orientation" from the Refugee Legal Centre (RLC) in London stated that

Section 2 of the Asylum and Immigration Appeals Act 1993 provides for the primacy of the 1951 Convention and the 1961 Protocol over Immigration Rules, which set down the practice and criteria to be followed in assessing asylum claims by the Secretary of State. Rule 334 of the current Immigration Rules (HC395) states that someone will be granted asylum in the United Kingdom if they meet the Convention definition of a refugee.

In a 18 June 1998 letter, an officer from the Asylum Policy Unit of the Immigration and Nationality Directorate (IND) of the Home Office in Croydon, UK, provided the IND's policy on asylum applications based on sexual orientation, which states that:

All asylum applications made in the UK are considered without discrimination in accordance with the criteria set out in the 1951 Convention relating to the Status of Refugees. Sexual orientation is taken into account in the assessment of individual asylum claims where this is relevant. Each claim is considered on its individual merits to determine whether the applicant can demonstrate that they have a well-founded fear of persecution in a particular country for any of the Convention reasons.

The interpretation of the "social group" concept in the 1951 Convention is ultimately a mater for our courts to decide. ...

Under the provisions of the Asylum and Immigration Act 1996 the Secretary of State may designate countries of destination where it appears there is in general no serious risk of persecution. This does not mean that homosexuals may be returned to countries where they might be subjected to persecution because of their sexual orientation. In reaching a judgement about the general level of risk to people living in a particular country the situation is assessed for all groups.

Those asylum applicants who do not meet the requirements of the 1951 Convention may be granted exceptional leave to remain in the UK if there are compelling humanitarian reasons why they should not be required to leave.

The RLC Briefing Paper reported that the issue of whether or not homosexuals constitute a "particular social group" has been considered a number of times by the Immigration Appeal Tribunal (IAT), as well as by Special Adjudicators, who hear asylum appeals at first instance, but added that decisions have not been consistent and that there appears to be "confusion" as to whether homosexuals do constitute a "particular social group" (July 1996). The RLC Briefing Paper added that

This lack of consistency has also been overtaken by supra-national co-ordination in justice and home policy in Europe, particularly through the signing of the Maastricht Treaty which provides for common immigration and asylum policies (Article K1). Notwithstanding that point, the United Kingdom's policy towards homosexual asylum-seekers has been changing from a blanket policy of denial the Home Office has since accepted the Canadian Supreme Court approach to the definition of social group … (July 1996).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Immigration and Nationality Directorate (IND), Home Office, Croydon, UK. 18 June 1998. Letter from Asylum Policy Unit officer and attached policy entitled "Asylum Applications Based on Sexual Orientation."

Refugee Legal Centre (RLC), London. 14 July 1998. Letter and July 1996 Briefing Paper entitled "Claims Based on Sexual Orientation."

Additional Sources Consulted

Watson, Madeleine and Philip Danzelman. 21 May 1998. Asylum Statistics: United Kingdom 1997. (Home Office)

Watson, Madeleine and Nick Hooper. 22 May 1997. Asylum Statistics: United Kingdom 1996. (Home Office)

Electronic sources: various Internet sites, including the Home Office.

Non-documentary sources:

Unsuccessful attempts to contact:

- Asylum Aid, London.

- Asylum Directorate, Croydon.

- Asylum Rights Campaign, London.

- Refugee Legal Group, London.

- Stonewall, London.

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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