A Preoccupation with Perversion: the British Response to Refugee Claims on the Basis of Sexual Orientation, 1989–2003
| Author | Jenni Millbank |
| DOI | 10.1177/0964663905049528 |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| Subject Matter | Articles |
A PREOCCUPATION WITH
PERVERSION: THE BRITISH
RESPONSE TO REFUGEE CLAIMS
ON THE BASIS OF SEXUAL
ORIENTATION, 1989–2003
JENNI MILLBANK
University of Sydney, Australia
ABSTRACT
Britain’s approach to refugee claims by lesbians and gay men has been notably hostile
in comparison to other Western refugee-receiving nations. For many years decision-
makers in the UK have refused to accept that those fleeing persecution on the basis
of sexual orientation were even capable of being refugees under the terms of the
Refugees Convention. Since accepting eligibility in 1999, UK decision-makers have
repeatedly held that asylum seekers are under a duty to protect themselves by hiding
their sexuality. They have also been extremely reluctant to hold that criminal sanc-
tions for gay sex are themselves persecutory and have frequently failed to appreciate
the relationship between violence against lesbians and gay men and the existence of
criminal provisions. This article suggests that there is a discernible national response
in the courts and tribunals of Britain to sexual orientation-based refugee claims. That
response carries echoes of the 1956 Wolfenden Report, most notably its ‘solution’ to
the ‘problem’ of homosexuality: privacy.
KEY WORDS
public/private; refugee; sexual orientation; Wolfenden
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(1), 115–138
DOI: 10.1177/0964663905049528
INTRODUCTION
For my part I am anxious to emphasise that the applicant makes this application
as a homosexual male who seeks, or would seek, an adult male partner and
whose homosexual practices would be conducted in private with that partner.
I assume this in his favour. If there was any suggestion that s 377 discriminates
in India against homosexual men who engage in homosexual practices with
minors or in public then, in my view, entirely different considerations would
arise. Needless to say, those would militate strongly against the applicant. (Jain
v SSHD [2000] per Evans LJ (concurring judgment): para. 32)
BRITAIN’S APPROACH to refugee claims by lesbians and gay men is
notably hostile in comparison to other Western refugee-receiving
nations. For many years decision-makers in the UK have refused to
accept that those fleeing persecution on the basis of sexual orientation were
even capable of being refugees under the terms of the Refugees Convention.1
While receiving nations such as Germany, the USA, Canada, New Zealand
and Australia accepted sexual orientation and gender identity as aspects of
the ‘particular social group’ category of the Refugees Convention in the late
1980s and early 1990s (Walker, 2000) and the United Nations High Commis-
sioner for Refugees (UNHCR) concurred in 1995 (UNHCR, 2001; see also
Council of the European Union, 2003), the United Kingdom finally accepted
eligibility only in 1999 after some strongly worded obiter was issued by the
House of Lords in the gender and particular social group case of Shah and
Islam (1999; see Symes, 2000; McGhee, 2001). Since the UK accepted that
sexuality could formally qualify under the Convention ground, it has issued
extremely restrictive decisions at Adjudicator, Tribunal and court levels when
compared with decisions of other countries such as Canada and Australia.2
Against this background, this article will focus upon distinctive features of
the British response to lesbian and gay asylum seekers.
The restrictive view that British decision-makers have taken to refugee
claims on the basis of sexual orientation is evidenced in a number of areas.
For instance, UK decision-makers have repeatedly held that asylum seekers
are under a duty to protect themselves by hiding their sexuality.3British
decision-makers have also been extremely reluctant to hold that criminal
sanctions for gay sex are themselves persecutory. Moreover, they have
frequently failed to discern any relationship between violence against
lesbians and gay men and the criminalization of same-sex sexual relations in
the sending country.
This article suggests that there is a discernible national response to sexual
orientation claims in the courts and tribunals of Britain. That response carries
echoes of the 1956 Wolfenden Report, most notably its ‘solution’ to the
‘problem’ of homosexuality: privacy. In her analysis of parliamentary decrim-
inalization debates in Britain (and elsewhere) that followed from Wolfenden,
Emma Henderson (1996) concludes that the most apparent theme of liberal
discourse in these debates is ‘how best to “disappear” homo-sex’ rather than
conceiving of privacy as a source of positive freedoms (p. 1030). In the case of
116 SOCIAL & LEGAL STUDIES 14(1)
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