Pride in the Law: How public law can empower LGBTQI+ migrants

Pride Month provides an opportunity to reflect on how LGBTQI+ people’s human rights have been defended and strengthened in the face of attitudes, policies and laws which have undermined them. This is especially true for LGBTQI+ people with other characteristics which place them at higher risk of discrimination and harm. Over the last several years, LGBTQI+ people seeking asylum in particular have been exposed to the damaging effects of consistently discriminatory and regressive rhetoric, policies and legislation.

Most recently, this has included the Illegal Migration Act 2023 and the Safety of Rwanda (Asylum and Immigration) Act 2024 which, if fully brought into force, would effectively abolish the UK’s asylum system and outsource people seeking asylum to Rwanda, despite concerns about Rwanda’s safety found by the UK Supreme Court in November 2023. As research by Rainbow Migration has indicated, out of 57 so-called “safe countries” identified by the Illegal Migration Act to which migrants can be removed, 17 – nearly one third – are unsafe for LGBTQ+ people, with homosexuality being either a criminal offence or a serious social taboo.

Where government policies or legislation is discriminatory or causes harm, public law – the area of law governing the responsibilities of the state and the rights of the individual – can offer important protection to LGBTQI+ people. This blog sets out three cases that have empowered and defended the rights of LGBTQI+ migrants, including people seeking asylum.

The first case, anonymised to HJ, was decided in 2010 by the UK Supreme Court. The Home Office wanted to remove from the UK a gay male Iranian asylum seeker. The Home Office argued that, under the Refugee Convention – the international treaty setting out the law protecting refugees – he could lawfully be returned to Iran, despite the risk of persecution on the grounds of sexuality. This was so, according to the Home Office, because he could be gay “discreetly” and avoid detection by the authorities.

The Supreme Court rejected the Home Office’s argument and concluded that the whole point of the Refugee Convention was to enable people to live freely and safely – without needing to hide who they are. As one of the Justices, Lord Hope, put it at para. 11:

To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are – of the right to do simple, everyday things with others of the same orientation such as living or spending time together or expressing their affection for each other in public.

The second case is called Pajic v Croatia and was decided in 2016 by the European Court of Human Rights – the international tribunal tasked with authoritatively interpreting the European Convention on Human Rights (ECHR). This was about a Bosnian lesbian woman named Danka Pajic, who applied for a residence permit to live in Croatia with her female partner. Danka had lived in Croatia for 17 years and had been in a relationship with her partner for 2 years.

The Croatian immigration authorities refused her application because Croatian law did not recognise unmarried same-sex partners as being “family members”, even though it did so for some opposite-sex unmarried partners.

The European Court concluded that this policy violated Article 8 of the ECHR, the right to respect for private and family life, taken with Article 14, which prohibits discrimination. As the Court said at para. 49: “the relationship of a cohabiting same-sex couple living in a stable de facto partnership fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.”

Consequently, the Croatian immigration authorities were not entitled to discriminate against LGBTQI+ migrants by affording less protection to their relationships than to same-sex relationships. As the Court decided at para. 80: “Although Article 8 does not include a right to settle in a particular country or a right to obtain a residence permit, the State must nevertheless exercise its immigration policies in a manner which is compatible with a foreign national’s human rights, in particular the right to respect for…her private or family life and the right not to be subject to discrimination.”

The third is a case called Mx M, decided in 2020 by the Upper Tribunal, which hears appeals from the First-tier Tribunal where asylum appeals are considered. Mx M, from El Salvador, had previously identified as a gay man but at the time of the case began to identify as non-binary.

The First-tier Tribunal had failed to consider whether non-binary people were a group which could be afforded protection under the Refugee Convention. In addition, the First-tier Tribunal thought that an incident where Mx M was accosted and physically beaten by five police officers in the street for dyeing their hair blonde was not persecution – but only harassment.

For the first time, the Upper Tribunal concluded that non-binary people were a specific category afforded protection under the Refugee Convention. In addition, the Upper Tribunal decided that the original tribunal’s approach to Mx M’s experience did not adequately protect their human rights. At para. 30, the judge concluded that:

“I do not doubt that it was…a terrifying experience…To be surrounded by men in authority, taunted, physically attacked and spat upon was surely an exercise in humiliation designed to punish the Appellant for nothing more than being who they are. The power imbalance between perpetrators and victim, and the nature of the assault, made it of sufficient severity to constitute “inhuman and degrading treatment“…

Public law has never been, and will never be, the only answer to empower LGBTQI+ people and, in some instances, it will inevitably fall short. Progress involves the full range of political, social, economic, domestic and international efforts – not just law and courts. But public law is and has been part of the answer to defending LGBTQI+ people against state discrimination, as well as providing them protection and safety. Therefore, we should continue to work hard to ensure that the law is an effective check against discrimination and that the judiciary understand the real needs and experiences of LGBTQI+ people.  LGBTQI+ people should be treated fairly and with dignity at all times and throughout the asylum process.

This Pride Month, we should celebrate the good that public law, human rights and courts can do.