Updated: Jan 22, 2021
The construction of non-Western migrants as cultural Others has been imperative in legitimising exclusion based on their lack of Western values. In this process, the role played by sexuality as a European distinguishing mark has become increasingly important in legitimising migrants’ exclusion. Not coincidentally, the mobilisation and inclusion of sexual diversity has been at the centre of Western nations’ narratives of ‘progress’ and ‘modernity’ for the past few decades. In the United Kingdom this is particularly illustrated by milestones such as the recognition of overseas same-sex partnerships; a law, in 2011, allowing same-sex partners to register civil partnerships; and the passing of the Same-sex Marriage Act, in 2014. These moves towards what Puar (2007, 2013) has termed ‘homonationalism’ arguably help to successfully portray an image of the UK as a ‘modern’ and ‘progressive’ nation, seemingly committed to including its gay, lesbian and bisexual citizens (albeit ‘homonormatively’).
Contradictorily, the UK has been much less welcoming when it comes to the protection of LGBTI Others seeking asylum into its territories due to sexuality-based persecution, as its general immigration policy has been inclined towards exclusion. This has intensified and come to the surface alongside the widespread rise in anti-immigrant sentiments, mobilised by the right and far-right during national elections and Brexit campaigns, and has been translated into ever harsher government policies designed to cut down on net migration (Charteris-Black 2006; Hogan and Haltinner 2015; Partos and Bale 2015). The UK has indeed created a hostile environment for migrants, including people seeking asylum, where consistently high asylum refusal rates persist along with inhumane routine practices of detention and deportation (Kotsioni 2016; Gibney 2008; H. Lewis, Waite, and Hodkinson 2017). The treatment of LGBTI people seeking asylum has by no means been different: in fact, refusal rates tended to be much higher for sexuality-based asylum claims, with one of the major grounds for refusal being the so-called ‘discretion requirement’. That is, the notion that the claimant could be ‘reasonably’ expected to act discreetly upon return to their home country in order to avoid persecution.
However, in 2010, the UK Supreme Court (SC) proposed a change in the approach to sexuality-based asylum claims. In the seminal decision HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, the SC rejected the controversial ‘reasonably tolerable’ test and set out new guidance to be applied when assessing sexuality-based asylum claims. However, whilst the decision initially appears with an implicit promise to address stark injustices in the treatment of sexuality asylum claims, it has not guaranteed a fundamental change in determination outcomes. Therefore, it urges us to question: what exactly has the SC decision addressed? What discourses does the decision mobilise? What implications does it have on the discursive production of queer postcolonial subjects? As Foucault (1978) notes in History of Sexuality, Volume I, legal discourses have historically played a major role in the production and regulation of sexual subjects. The legal discourse reproduced by the SC is invested with a performative power: its ‘authoritative speech’ performs ‘a certain action and exercise[s] a binding power’, and it is productive of that which it is apparently only describing (Butler 1990, 1993, 171).
I would therefore argue that by inquiring into the discursive work the SC judgment has performed, one can see how it has contributed to resolving tensions between the UK’s self-constructed image as a modern protector of LGBT rights and the government’s goal to restrict the number of refugees granted asylum. Particularly guided by scholarly work on ‘orientalism’ (Said 1978) and ‘homonationalism’ (Puar 2007), I propose a new interpretative analysis in the quest to understand how dominant representations of the West and its Other have been mobilised and reproduced. The framework provided by these concepts helps to uncover the ways in which geographical temporalities and sexualised/racialised subjects are discursively (re)produced and regulated by legal discourses.
Orientalist/Homonationalist legal discourses
The SC judgment on HJ and HT (2010) was driven by a need to clarify a test to ‘be applied when considering whether a gay person who is claiming asylum […] has a well-founded fear of persecution in the country of his or her nationality based on membership of that particular social group’. Its main outcome was to reject the controversial ‘reasonably tolerable’ test and set out a new guidance for asylum decisions on sexuality-based persecution claims. However, discourses put forward by the judges as part of their decision were deeply informed by a homonational/orientalist framing of the UK (and Western societies in general) versus refugee-sending countries (non-Western countries).
"The need for reliable guidance on this issue is growing day by day. Persecution for reasons of homosexuality was not perceived as a problemby the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. […] The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention – no more, if I may be permitted to coin a well known phrase, but certainly no less."
The above statements recreate an orientalist representation of Western societies as mirror images of their non-Western Others. These produced a binary opposition based on the supposed sexual tolerance and secularism of the West against the sexual intolerance and religious fundamentalism of its Other. Such representations of Western and non-Western societies as polarised and internally homogenous not only overlook nuance contemporarily, but also completely disregard colonial history and the role of the British Empire in effectively exporting ‘homophobia’ to its colonies through its sexual moral codes (Gupta 2008; and Phillips 2007).
The discursive representation contained in the above extracts from the SC judgment subtly presumes Western societies to be founded on principles of sexual freedom, with homophobic violence only occurring ‘out there’. Thus we see how “asylum links queerness, liberalism and nationalism by simultaneously forgetting old discourses on homophobia and fostering new ones” (Raboin 2017, 674). This polarised image – contrasting State protectors and State persecutors of lesbian and gay people – becomes instrumental in justifying a need for international intervention, in which the British government is represented as personally invested. It effectively reproduces a particular variant of racialised ‘salvation’ narratives historically relied upon in asylum and human rights discourses (Raboin 2017; Mutua 2001; Grewal 1999), in which Western societies are now to ‘rescue brown gays’ (Bracke 2012, 247).
Prior to the 2010 SC decision, the UK’s case law on sexuality-based asylum claims was based on the ‘reasonably tolerable’ test. It consisted of asking whether a person who had a well-founded fear of persecution due to their sexuality could ‘reasonably’ be expected to tolerate living in ‘discretion’. Thus, the test justified the rejection of sexuality-based asylum cases on the basis that applicants could be ‘discreet’ or could ‘conceal’ their sexuality in order to avoid persecution in their home countries. The SC unanimously rejected the ‘reasonably tolerable test’ by arguing that a refugee applicant could not be ‘expected’ to change their behaviour in order to avoid persecution in their home country, considering it to be contrary to the principles of the Refugee Convention.
The rejection of the ‘reasonably tolerable’ test was accompanied by a rhetoric that reinforced the image of the UK as a modern and progressive nation, by reasserting its commitment to the protection of LGBTI people’s right to a ‘free’ life. In rejecting that applicants could be expected to ‘reasonably tolerate’ to live their sexuality ‘discreetly’, Lord Rodger contends that the Convention should protect the right to live ‘freely and openly’.
"In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution."
The judge’s statement reveals deeply stereotyped and essentialist conceptions of sexual identity. It presupposes a gay inner self producing an intelligibly gay public performance, which is here defined through ‘homonormative’ terms, deeply embedded in white and liberal consumption practices (Duggan 2003). What follows from such reasoning is that a failure to be recognised within this model may then be interpreted as ‘discretion’, implicitly suggesting an embodiment of the notion of repression - acting as a barrier to the expression of a gay ‘natural’ being.
Racialised production of sexual ‘discretion’/repression
The same orientalist rationale put forward to repeal the ‘reasonably tolerable’ test informed the concepts upon which the new test/guidance was designed – in an exclusionary fashion. The new test builds on Lord Rodger’s insistence that what the Convention protects is ‘the right to live freely and openly as a gay man’. Consequently, the test is constructed around the idea that homophobic persecution is restricted to those who live their sexuality ‘openly and freely’. A ‘free and open’ life, in this context, becomes a normative ideal against which applicants are assessed. Hence, the new test requires applicants to successfully reiterate the norms through which the effect of a ‘free and open’ gay identity – completely ‘out of the closet’ – is produced and sustained in order to have their claim recognised. These norms, however, are likely to be unstable and self-contradictory, normatively constructed in direct opposition to performances understood to be heterosexual or based on a discreet/repressed gay sexuality. The ability to manipulate and ‘to set the terms, and profit in some way from, the operations of such an incoherence of definition’, in this context, is heavily influenced by differences of power – which are already greatly determined by the asylum system itself (Sedgwick 1990, 11).
As established in the new guidance, if a tribunal is convinced that the applicant would live their sexuality ‘discreetly’, the applicant must then effectively prove that this would not be due to any reasons other than persecution. However, I contend that in saying that some applicants would ‘choose’ to live ‘discreetly’ (i.e. repress their sexual identity) in order to avoid facing ‘social pressure’ (such as distressing ‘parents or embarrass[ing] friends’), it in fact performatively produces those very same subjects, by calling them into being (Butler 1990). It creates a category which can only be inhabited by an already racialised (non-Western) subject, given that it is constructed as the mirror image of a British ‘free and open’ gay subject. In establishing causality between the repression of a gay sexual identity and a natural/social will to repress it, the law produces the effect of a pathologized non-Western gay subject – unable to free themselves from their ‘backwards’ cultures, rooted in family traditions – as opposed to the quintessential modern gay subject. This discursive production of queer people seeking asylum as repressed by their own cultures perpetrates an Othering process in which non-Western gays are seen as essentially different from British liberated gays. This is also instrumental in justifying their exclusion from the refugee category, given they are now seen as naturally unable to exercise their right to live ‘freely and openly’ (rather than being demanded and forced to do so).
A closer analysis at the ways in which the new test has been applied in tribunal asylum decisions provides a glimpse into the above. Negative decisions based on a supposed cultural or natural discretion of the applicant have broadly been justified in two interconnected ways: by pointing towards a perceived lack of sufficient engagement in the UK gay nightlife and therefore a failure to sustain a coherent homonormative narrative. For example, in the Upper Tribunal (Immigration and Asylum Chamber)  Appeal Number: AA/07288/2013, the tribunal dealt with the asylum claim of two Pakistani ‘gay lovers’, and rejected their application on the basis that both were ‘naturally private’ individuals by asserting:
"They have no particular desire to socialise with other gays. […] the Appellants had behaved discreetly in a free and open country like the United Kingdom out of their own choice, they would behave in likewise manner in Pakistan."
The ability to perform an ongoing ‘out’ narrative to resist being interpreted by the courts as behaving with discretion/repression also requires levels of assimilation into the normative UK gay life that may prove difficult to racialized queer people seeking asylum, particularly due to widespread racism found in gay clubs and economic constraints. In fact, even where an individual’s financial situation has been recognized as a barrier for people seeking asylum in accessing clubs, this has not prevented them subsequently being framed as discreet and therefore ineligible for refugee status. This is clearly shown in the case of a Bangladeshi man who was considered to be in a ‘discreet’ relationship, given that they “do not socialise a great deal, rarely go to nightclubs due to lack of funds and otherwise continue their relationship discreetly. [They are] living a relatively quiet life.” Indeed, it has been argued that homonationalist discourses put forward through LGBTI asylum narratives not only work towards sustaining an exceptional image of the UK, but also produce promises of happy queer futures which are often unattainable to queer Others (even when they are formally granted refugee status) - for its full access is contingent on a exclusionary market economy (Raboin 2017).
Other negative decisions may be underpinned by representations of applicants as too family-oriented and therefore culturally inclined to be discreet. For example, in an asylum case of a Bangladeshi gay man, a negative decision was made on the basis that he would supposedly act discreetly solely due to family pressures, even though he had provided evidence to the contrary. His appeal was heard by the Upper Tribunal in 2019 where the decision of the first-tier judge was set aside due to an identified material error of law, where the following is explained:
She had arguably also erred in finding the only reason why the Appellant might be discreet about his sexuality on return was fear of disapproval by his family because he had given additional reasons at his interview by an Immigration Officer and in his witness statement.
As the analysis of specific asylum cases suggests, the new test has been based on homonational/orientalist notions that tend to portray non-Western sexual identities as naturally repressed or excessively embedded in family traditions as oppose to a prescribed Western model of modern gay liberated identities. In doing so, the test works to only selectively include queer people seeking asylum when they are able to fit into this homonormative model (as token exceptions), whilst simultaneously excluding those who fall outside it by projecting repression onto their racialized queer bodies.
The SC decision addressed a long-standing controversial element of the UK asylum policy on sexuality-based claims by asserting that the UK would no longer require queer people seeking asylum to go back to their countries and ‘repress’ their sexuality. However, I would argue that whilst the decision presumably includes sexual others who fit into a predetermined Western homonormative narrative, at the same time, it projects ‘repression’ onto racialised queer bodies, thus effectively recreating a reasoning to exclude them from the refugee entitlement legitimately. Although nearly a decade has passed since the Supreme Court judgment, its Othering effects have endured and continue to inform asylum decisions in dangerously harmful ways. This is illustrated by the ways in which some queer people seeking asylum may have their cases overturned based on arguments that depict them as sexually repressed, discreet and family oriented, as opposed to Western ‘liberated gays’ - marked by specific norms of visibility, individualism and consumption practices.
The interpretation of refugee law in relation to sexuality-based asylum claims in the UK has constructed a narrative in which initially, through the practice of the ‘reasonably tolerable’ test, the United Kingdom could be interpreted as contributing to the sexual oppression or repression of queer people seeking asylum. I contend that what follows from such a narrative is a displacement of the idea of repression which transfers the responsibility for the alleged sexual repression of non-Western queers from British refugee jurisprudence to people seeking asylum themselves. In other words, repression passes from being seen as something that the UK is forcing upon people seeking asylum – in order to avoid welcoming them into the nation – to being something that is produced either by their inherent nature or by their family values, supposedly inherited from the very same culture from which they flee. Thus, on the one hand, by ceasing to repress the sexuality of people seeking asylum and promising to protect the right of gay people to live ‘openly and freely’, the United Kingdom reinstates its homonationalist image as a progressive, modern and superior nation. On the other hand, by producing non-Western queers as repressed, it effectively creates a reasoning for their exclusion from the nation: they cannot be ‘helped/saved’, for their ‘cultural/natural’ differences render them unable to live their sexuality openly and freely even in a supposedly ‘open and free’ country.
This blog piece is a shorter, adapted, version of the article ‘Homonationalist/Orientalist Negotiations: The UK Approach to Queer Asylum Claims’, published under an open-access license in the international journal Sexuality & Culture, vol. 24, no. 1, pp. 174 196. https://link.springer.com/article/10.1007%2Fs12119-019-09633-3
Rosa dos Ventos Lopes Heimer is a PhD Candidate in the Department of Geography at King’s College London. She holds a BSc in Sociology from the Federal University of Bahia and a MSc in Gender, Policy and Inequalities from the London School of Economics. Before joining King's, Rosa worked in research, policy and managing regional, national and international projects in the intersecting areas of gender equality, migration, violence against women and LGBTQI rights nationally and internationally. Her doctoral research explores the ways in which coloniality informs the experiences of violence and resistance of Latin American migrant women in the UK who are survivors of intimate partner violence. Her PhD is funded by the CAPES Brazil.
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Upper Tribunal (Immigration and Asylum Chamber)  Appeal Number: PA/00431/2018. https://tribunalsdecisions.service.gov.uk/utiac/pa-00431-2018
 According to statistics from a House of Common briefing paper (Sturge 2019), in 2004, the percentage of asylum applicants refused at initial decision reached its highest point at 88%. Although it subsequently fell to 59% in 2014, it increased again to 67% in 2018. In 2014, the UK Home Office was accused of having a polemic reward scheme aimed at hitting a target of 70% of failed asylum cases (Taylor and Mason, 2014).  A study by UKLGIG (Gray 2012) analysing claims from 2005 to 2009, found that 98-99% of the claims based on sexual orientation were rejected by the Home Office – in contrast to 73% of general claims – with one of the major grounds for refusal being the so-called ‘discretion requirement’. The study found that 56% of cases reviewed were refused on based on the ‘discretion requirement’.  Hereafter I refer to this decision as HJ and HT.  The test allowed a decision-maker to refuse a sexuality-based asylum application on the basis that the applicant could ‘reasonably tolerate’ going back to their country and acting ‘discreetly’ (i.e. concealing their sexuality) in order to avoid persecution.  HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, , para. 1.  Ibid., , para. 3.  HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, , para. 78. [Emphasis added].  Upper Tribunal (Immigration and Asylum Chamber)  Appeal Number: AA/07288/2013, para. 17.  Held and Leach (2008) provide an interesting analysis of experiences of non-belonging of racialised subjects in lesbian and gay spaces.  Upper Tribunal (Immigration and Asylum Chamber)  Appeal Number: PA/00431/2018, para. 11.  Upper Tribunal (Immigration and Asylum Chamber)  Appeal Number: PA/05105/2018, para. 9.