Sexual diversity and the Nationality and Borders Act 2022

Abstract

Since the 2010 UK Supreme Court decision in HJ(Iran),2 which brought an end to the ‘reasonable tolerability test’, the main issue facing sexually diverse refugees is proving that they are actually sexually diverse people.3 Prior to this 2010 decision, claimants had been faced with a de-facto catchall excuse for rejection in the form of discretion reasoning.4 At this time, the UK Lesbian and Gay Immigration Group5 estimated a 98-99% rejection rate for claims based on sexual diversity.6 Discretion reasoning enabled decision-makers to determine that claimants would not have a well-founded fear of persecution provided they acted in a discreet manner. The end of discretion reasoning was heralded as a ‘Fundamental shift in asylum law’7 and a ‘key factor in the improvement of first-decisions.’8 However, scholarship has firmly established that the ending of discretion resulted in a switch in focus, with Home Office (HO) decision-makers increasingly rejecting asylum claims on the basis that the claimant in question was not actually gay or lesbian or bisexual.9 As the above suggests, sexual minorities have generally faced greater difficulties in making their asylum claims than other groups who require protection. However, in 2022, the UK made further fundamental changes to refugee law, the effects of which are only now beginning to become clear. More specifically, the UK has legislated, in the form of the Nationality and Borders Act 2022 (NBA), to create a number of new barriers which must be navigated in order for a claimant to make a claim for asylum. This move, accompanied by the Memorandum of Understanding between the UK and Rwanda, can be seen as having dramatic consequences on the ability of those who have entered the UK, having transited through another country, to claim asylum. In this short piece, we explore the implications of the NBA 2022 for sexually diverse asylum seekers.