Nationality and Borders Act 2022: the increased standard of proof for finding persecution and it’s effect on LGBTQ Asylum Seekers

On 28 June 2022 the Nationality and Borders Act 2022 was passed. Section 32 (2) of this act establishes a two-stage test to determine whether an asylum seeker’s fear is well-founded.

The decision maker must determine on the balance of probabilities whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and if they do in fact fear such persecution in their country of nationality as a result of that characteristic.

Once this has been decided, the decision maker must determine whether there is a ‘reasonable likelihood’ that if the asylum seeker were returned to their country, they would (1) be persecuted as a result of the above names characteristics and (2) would not be protected.

This new balance of probabilities standard is higher than the previous standard which was of ‘a reasonable degree of likelihood’.

This lower standard had been upheld for 34 years since the determination in R v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958, [1988] 1 All ER 193, [1988] 2 WLR 92, [1987] UKHL 1, [1988] Imm AR 147. The lower standard was important because of what was at risk: the asylum seekers right to life and their right to liberty.

It is difficult for an asylum seeker to bring a lot of evidence with them when they are fleeing a country where their life or liberty is at risk. Especially when many of them leave their homes and families, risk their lives and safety just to reach a safer country.

What this means for LGBT asylum seekers

Reportedly, the UK has refused over 5000 asylum claims from LGBT asylum seekers in only the last five years. These asylum seekers often come from countries where homosexuality is illegal.

The new law will make it harder for asylum claims based on homosexuality to be accepted as the decision maker will have to be convinced on the balance of probabilities that the asylum seeker has a characteristic which could cause them fear of persecution.

In the past, interviewing officers have asked LGBT asylum seekers intrusive and personal questions in order to determine if they are telling the truth about their sexuality. This law could potentially make the line of questioning even more intrusive.

There may be an increase in detailed discussions of traumatic experiences during asylum interviews.

Ultimately, this higher standard of proof will not only cause an increase in detailed discussions of traumatic experiences during asylum interviews (which would be very damaging of vulnerable asylum seekers), but also a lot more legitimate asylum claims will be unsuccessful as it is difficult for asylum seekers to bring a lot of evidence with them.

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