The Home Office published revised guidance on ‘Sexual Orientation in Asylum Claims’ on 3 August 2016. In many respects, this revised guidance builds on previous progress in the way the Home Office approaches applications for asylum based on fear of persecution relating to sexual orientation or gender identity. For example, the revised guidance refers to how difference, stigma, shame, and harm may affect LGBTI people fleeing persecution. Further progress is needed on various aspects of the Home Office’s handling of LGBTI asylum claims, but the improvements being made are very welcome.
The revised guidance maintains the ‘voluntary discretion’ test set out in 2010 in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31, despite this test being at odds with UK and European jurisprudence. In short, Home Office policy is to consider, if a person would conceal their sexual orientation upon return to the country where they fear persecution, whether they would do so because of their fear of persecution or only for personal reasons unconnected to persecution. The Home Office position is that if a person would conceal their sexual orientation in their country of origin solely for personal reasons, they would not qualify for refugee status.
Some advocates have made strong objections to this ‘voluntary discretion’ test. For example, No5 Chambers’ S Chelvan’s August 2016 blog article argues that the revised Home Office guidance does not properly take into account recent jurisprudence, including the Court of Appeal decision in Secretary of State for the Home Department v MSM (Somalia)  EWCA Civ 715 (12 July 2016), affirming the 2015 Upper Tribunal determination in this case, which applies previous decisions of the Court of Justice of the European Union post-HJ (Iran) and renders the continued application of the ‘voluntary discretion’ test unlawful. The Upper Tribunal’s 2015 determination in MSM quotes from the Judgment in X, Y, and Z (Court of Justice of the European Union, 2013, Joined Cases C-199-201/12), observing that the possibility that a gay person might avoid persecution by ‘exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account…’ (emphasis added). This approach acknowledges a key aspect of such cases which the current Home Office / HJ (Iran) approach ignores – that even ‘voluntary discretion’ requires the ‘individual never to reveal, or be identified, as anything but heterosexual, in order to evade persecution, not for one day, or one week, but for the rest of their life’.
Home Office decision makers also continue to make incorrect decisions in relation to other aspects of sexual orientation cases, at times in sharp contrast to Home Office guidance. For example, an August 2016 letter refusing asylum stated: “Your strong attachment to your Islamic faith is inconsistent with your claim to use lesbian dating sites”. This directly contravenes the August 2016 (and previous) Home Office guidance, which very clearly states (p 35): “A claimant’s religion is not a basis for rejecting their claim. LGB individuals may be adherents of religions that disapprove of homosexuality, preach against it, or indeed forbid it”.