Gay And Lesbian Asylum Seekers 'Feel Forced To Show Sex Films To Prove Sexuality To UK Border Agency'

Gay asylum seekers are going to extreme lengths to prove their sexual orientation, filming themselves having sex and describing intimate encounters, to meet stringent demands from the UK Border Agency to prove their sexuality, a leading barrister has warned.

S Chelvan, a barrister at No 5 Chambers who specialises in immigration and asylum law, has called for there to be a greater awareness of issues facing gay asylum seekers.

He told HuffPost UK: "All asylum seekers need to prove they are at risk of persecution. We have to accept that a gay asylum seeker must prove they are gay. But how do you do it?"

He gave one example where cross-examining had been particularly intimate.

"In one case, we had an individual who had a gay friend of his who he met in a gay club in London, and they went to an underwear party. He described how they were attracted to each other, they both said they showed signs of that.

"But the UK Border Agency said any straight person could have gone to that club. But would a straight person have stripped down to his underwear? And the friend agreed they both got aroused at the sight of each other.

"We had to go to the high court, to the tribunal and have all his friends come to give evidence and describe such scenarios, in public. It should never have got to that stage.

The immigration judge said to his star witness, 'well, you personally haven't had sex with him, so how do you know?'"

Asylum seekers must prove they are gay in order to stay in the country.

He added: "There is an embedded culture of disbelief. we say immediately 'we don't believe you, you go away and prove it.' It's a clear breach of human rights, it's inhuman and degrading.

No court would ask a claimant to provide a film, he said. "But gay asylum seekers feel they have to go to these lengths.

"They go to desperate measures. It shows the system has broken down to push gay asylum seekers to have to go to such extremes.

Chelvan will outline the need for reform in the annual Stonewall Lecture lecture to be hosted by the Law Society on Tuesday.

A landmark ruling in 2010 found that gay men, lesbians and bisexuals should be allowed to stay in Britain if they are not able to live without persecution at home.

Chelvan argued the focus has shifted from whether an asylum-seeker could be "voluntarily discreet" about their sexual orientation in their home country to being able to prove they are gay or lesbian.

Chelvan has developed an alternative way of supporting refugee claims based on sexual or gender identity - the DSSH (Difference, Stigma, Shame, Harm) model.

He said it looks at when asylum seekers first realised they were "different" rather than "homosexual" as many cultures do not recognise homosexuality in the same way as the UK. "It's like saying, when did you realise you were straight? It's a difficult question to answer.

"It often occurs long before any kind of sexual awakening, it can start in childhood.

"When we are deciding these claims we have to go out of the bedroom, into the outside world. It's in the outside world a lesbian or gay asylum seeker faces the real risk of harm."

Some 80 countries criminalise consensual same-sex activity, while five countries - Mauritania, Sudan, Saudi Arabia, Yemen and Iran - impose the death penalty.

Law Society president, Lucy Scott-Moncrieff, said: "We tend to think that, in terms of LGBT rights and protections, we've got it right. That in the UK, LGBT individuals have equal rights and are protected against discrimination.

"Yet there is a question whether these rights and protections apply to the most vulnerable individuals - asylum seekers who have fled to the UK because in their country of origin their situation is so dire, so desperate, that they fear for their own safety."

Stonewall chief executive, Ben Summerskill, said: "We know from our work with the Foreign Office and equality campaigners worldwide that in many countries LGB&T people live in real fear for their lives.

"When they flee from persecution it's absolutely right that countries like Britain should treat them with respect and care."

A UK Border Agency (UKBA) spokeswoman said: "We have changed our guidance to ensure that we do not remove individuals who have demonstrated a proven risk of persecution on grounds of sexual orientation.

"Our position remains clear - when someone needs our protection, they will be given it."

The 11th Annual Stonewall Lecture is organised by the Law Society and the Bar Council in association with Stonewall, InterLaw Diversity Forum, and the Bar Lesbian and Gay Group.