The burden of proof is wrongly applied in court as claimants are asked to prove the impossible. “What kind of evidence am I going to bring when I am in danger?”
One in three European survey respondents said their claim had been refused because the decision-maker did not believe their sexual orientation or gender identity
Researchers at the University of Sussex are calling for a radical overhaul of the way people who claim asylum on the grounds of sexual orientation or gender identity (SOGI) are treated.
A team at the University of Sussex have spent four years interviewing claimants and their professional supporters in the UK, Germany and Italy. The project is named SOGICA (Sexual Orientation and Gender Identity Claims of Asylum) and, through Europe-wide online surveys , the team heard from 239 people (82 claimants and 157 supporters). In addition the team conducted 143 interviews across the UK and Europe with SOGI asylum claimants and refugees, Non-Governmental Organisations, policy-makers, decision-makers, members of the judiciary, legal representatives, and other professionals. They held focus groups with SOGI asylum claimants and refugees; observed dozens of court hearings; and submitted freedom of information requests.
The project’s statistical findings from their European surveys include:
Four in ten claimant respondents reported that the most common reason for refusal was that the decision-maker did not believe they were persecuted or at risk of persecution in their country of origin.
Two in five (41% percent) did not feel safe in their accommodation, be it in reception and accommodation centres, private rented accommodation, staying with family or friends, or other types of accommodation. The majority of supporters (65%) believed that specific accommodation for LGBTIQ+ claimants was a good idea.
Dr Moira Dustin from the School of Law, Politics and Sociology at the University of Sussex led the UK research. She said:
“The claimants we interviewed in person have had harrowing experiences in applying for asylum. These are people who are fleeing their home country not out of choice, but out of necessity. They face a risk of double prejudice: firstly as a claimant of asylum and secondly as a person from a sexual orientation or gender identity minority.
“If the claimants of asylum could speak with one voice I believe they would say ‘I am who I say I am.’ Not being believed is a top concern: one in three respondents across Europe said they had had their claim refused because the decision-maker did not believe their sexual orientation or gender identity. And four in ten respondents across Europe reported that the reason for their refusal was because the decision-maker did not believe they were persecuted or at risk of persecution in their country of origin.
“Our research shows that for SOGI claimants, the burden of proof is being wrongly tilted against them. In law, the burden is supposed to fall equally on the claimants and on the decision-maker but our research shows that too often, in reality, the burden falls solely on the claimant. Let’s not forget it is hard for people who have lived in fear and in hiding to produce evidence for their sexuality or gender identity - they are highly unlikely to have carried with them photographs or letters proving past relationships, for example.
“Time and again during our fieldwork, claimants asked us, despairingly: ‘So how can I prove my sexual orientation or gender identity?’ We urge that asylum and judicial authorities take the evidence, particularly the personal testimony, submitted by claimants as the starting point for credibility assessment. The default position should be belief in claimants’ accounts of who they are and what has happened to them. With regards to the UK system, we ask the Home Office and the Judiciary to address this including through better training for Home Office staff and judges making these decisions.”
Professor Nuno Ferreira from the School of Law, Politics and Sociology, led the whole project. He said:
“We’ve heard from hundreds of people in the UK and across Europe. We’re calling for a radical overhaul of the system for asylum claimants and have made a number of urgent recommendations. These include that states must apply the correct standard and burden of proof, and that detention of SOGI - and all - claimants should be abolished.
“Asylum claimants are often required to meet unfairly high evidentiary standards. In practice, asylum and judicial authorities apply a standard of proof that goes beyond the ‘reasonable degree’ threshold claimants are required to meet under international refugee law, often simultaneously violating the principle of the benefit of the doubt. Asylum authorities also often fail to adopt a sufficiently active role in evidence-gathering.
“And in relation to detention, many SOGI asylum claimants in detention not only experience difficulties in accessing the information and advice they need to make their claim, but often also experience violence and abuse related to their sexual orientation or gender identity.”
Testimony on the burden and standard of proof:
Speaking of the impossibility of proving your own sexual orientation or gender identity, a claimant in a Glasgow focus group said: “If someone claim[s] asylum, coming from Africa, or any part of the world, why did you expect such person to bring evidence? What kind of evidence am I going to bring when I am in danger?”
Meggs, a claimant in Manchester focus group said: “The interview started from 11 until 6.30 in the evening. Then, when the decision came, they didn’t believe anything. None of the things that I said they believed. Not even one. I don’t know how many questions I had, I think I had 300 and something questions, none of them [were believed], they just believed that I am from Zimbabwe. The rest, nothing.”
In the UK fieldwork, Denise and Umar who are legal advisors told the team: “And what they [Home Office] tend to do is start off with a great deal of scepticism, and refuse on the basis that the person hasn’t provided information or details even when they don’t ask for the details.”
Testimony on the impact of detention:
One claimant, named Miria, who was detained in Yarl’s Wood when she claimed asylum, told the team that even though she was detained for ‘only’ a week she was very severely affected by it: “By that time when I got out of that detention, I was just touching the walls to walk, I couldn’t manage to stand on my own, I was very weak, very sick, because I was not eating. I was not sleeping, so it wasn’t, it was really, really bad time.”
Allan, a lawyer, told the team that SOGI claimants do not only face homophobic abuse in detention, but their vulnerability also makes it more difficult to work on their claim in a range of practical ways, for instance if they “are worried about a fax from UKLGIG coming in” which would reveal their identity to other detainees.
One of the UK claimants the team interviewed was Angel, who fled Zimbabwe after a lesbian relationship was discovered leading to her being attacked and raped to ‘straighten her up’. Angel says the hardest thing was to prove her sexuality. In a film about her experiences , which also interviews Dr Moira Dustin and Caroline Lucas MP, Angel says:
“It took about a year to get the date to go to court. The Home Office said ‘she only had one relationship with a girl, it can be an adolescent stage or confusion. It doesn’t say anything about her sexuality.’ When the results came the judge said ‘Ok, I believe that you are a lesbian but in Zimbabwe you can go and live in another city if you had problems’. When I went home from court I couldn’t sleep again. I don’t understand how it works. Once you get kicked out of the system your accommodation is taken away from you and you end up in the street. You have to offer your services for free, so whatever I’m going through right now, it’s abuse or whatever, I take it because I need a place to stay.”
Findings indicating a problem with accessing asylum justice in Europe:
- 39% of respondents had been waiting for more than six months for the main interview.
- One in three of claimants did not know that they could claim asylum because of sexual orientation or gender identity when they arrived in Europe.
- Almost half the claimants did not have a legal advisor or representative to help them with their asylum application and more than half the supporters believed that adequate and affordable legal services was unavailable for SOGI claimants.
- Sixty-four per cent of supporters found interpreting services available to SOGI claimants were inappropriate and inadequate.
- More than half the claimants had physical or mental health problems related to the persecution they experienced or the process of claiming asylum.
The SOGICA project made a series of films about their research including about Angel (UK case study) , Anbid (German case study) , Mazen (Italian case study) and one about the SOGICA team itself.
About the research:
The SOGICA project has been a four-year (2016-2020) research project funded by the European Research Council (ERC) that explores the social and legal experiences of people across Europe claiming international protection on the basis of their sexual orientation or gender identity (SOGI).
The research team carried out fieldwork in Germany, Italy and the UK, including 143 interviews with SOGI asylum claimants and refugees, NGOs, policy-makers, decision-makers, members of the judiciary, legal representatives, and other professionals. They also held 16 focus groups with SOGI asylum claimants and refugees; 24 non-participant contextual observations of court hearings; documentary analysis and freedom of information requests. Between August 2018 and March 2019, SOGI asylum claimants and refugees in Europe, and those supporting them, were also invited to complete an online questionnaire about their experiences with SOGI asylum procedures and wider social experiences.
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By: Anna Ford
Last updated: Thursday, 9 July 2020