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Brexit’s Dangerous Impact on Transgender Asylum Seekers

Elise Middleton is a content writer for the Immigration Advice Service, an organisation of UK immigration solicitors offering legal aid and support to asylum-seekers, trafficking survivors and survivors of domestic abuse

The uncertainty surrounding Brexit raises many questions about the future of the UK, namely in business, trade, employment, and immigration. If Brexit does come to pass, it will take years to sift through various legal decisions regarding which laws adopted by the UK as part of EU membership will remain, and which will be lost. Research undertaken by The UK in a Changing Europe demonstrates that in the event of a no-deal Brexit, despite the temporary workarounds promised by the EU, the UK may well be thrown into crisis with severe disruptions to air transport and road links.

These concerns prompt a great deal of media attention and public conversation, but one area that is frequently and dangerously overlooked is that of Brexit’s impact on equality policies and particularly LGBTQ+ rights. The only legally binding international human rights document that specifically protects people against discrimination on the basis of sexual orientation is the Charter of Fundamental Rights, a piece of EU legislation that will likely no longer be available to UK individuals post-Brexit.

Currently, it acts as a vital safety net for British LBGTQ+ individuals, allowing them to turn to EU courts if they feel that the UK government is not doing enough to protect them from persecution. Many British nationals have depended upon both EU courts and European law in this way, with a recent case being that of British man John Walker who relied on EU law to bring an end to inequalities in private pension rights for same-sex couples. Examples of the Charter of Fundamental Rights being invoked in this way highlight its importance, and its loss will leave transgender people in particular vulnerable and without specific protections. In recent years, the UK has implemented legislation such as the Gender Recognition Act 2004 and the Equality Act 2010, demonstrating significant progression in efforts to protect the rights of the LGBTQ+ community. However, Brexit threatens a regression of these rights and many others that have been tirelessly worked for.

A large contributing factor to concerns of a regression are the statistics that demonstrate a harrowing increase in hostility towards the LGBTQ+ community – and particularly trans individuals. Recent Stonewall Scotland research on LGBT hate crime has reported that in 2017, one in five LGBTQ+ people had experienced a hate crime because of either their gender identity or sexual orientation, with that number increasing to a distressing 48% for trans people specifically.

This hostility and vitriol is similarly directed at the most vulnerable in society: transgender asylum seekers. Asylum seekers who wish to gain citizenship in the UK are already subject to the harmful repercussions of the UK government’s increasingly rigorous immigration policy, policy that undermines basic human rights. Individuals seeking asylum on the basis of persecution due to their sexuality or gender identity are then forced to prove evidence that they were under threat, in a series of gruelling interviews that does not take into account the reality that most of these people would not have been able to live publicly out in their home countries. As a result, offering some form of proof is often impossible, as it was their inability to live freely and openly that led these individuals to flee in the first place. This insensitive and unfeasible demand then leads a number of asylum seekers to feel as if they must provide explicit or intimate evidence to demonstrate the legitimacy of their claim, significantly encroaching upon their privacy.

These unreasonable demands have their roots in the government’s hostile environment policy, and unsurprisingly result in a high refusal rate for LGBTQ+ asylum seekers making their claim on the basis of their sexual orientation or gender identity. In 2017, a massive 1,464 out of 1,887 asylum seekers making a claim on this basis were refused, with only 423 granted asylum.

The experience of asylum seekers waiting to make their claim or hear a response to their claim is often a traumatic one, and is only exacerbated when the individual is LGBTQ+. Transgender individuals suffer specific violence and abuse in the interview process, frequently being misgendered by interviewing officers or refused the right to be in detention with fellow detainees of their self-identifying gender.

Transgender asylum seekers suffer atrocious cases of injustice and discrimination under the current system and governmental immigration policy. The combination of these current hardships and the increase in hostility forecasts a dangerous future for LGBTQ+ asylum seekers, one that can only be worsened by either a no-deal Brexit or a Brexit that does not take these issues into account. In order to continue the work that has been undertaken by those advocating for the legal protection of the LGBTQ+ community, the government must establish post-Brexit human rights legislation as a matter of urgency. The lasting pieces of the hostile environment policy must be eradicated in order to ensure the safety and protection of those seeking refuge from persecution. If these measures are not taken, the UK may find itself to be a toxic and dangerous place for LGBTQ+ people, not one of progression but one that must be escaped.