The attitude of the Home Office towards asylum claims made by Bangladeshi nationals on the basis of their sexual identity has changed over the years.

Until approximately mid-2016, it seems that the Home Office accepted that gay, lesbian and bisexual people were at risk of harm in Bangladesh. This meant that many were granted asylum.

Since mid-2016, however, we have seen a lot of refusals on the basis that gay, lesbian and bisexual individuals are not at risk of harm in Bangladesh. The Home Office says that they are discriminated against, but they are not persecuted (seriously harmed), and that the state will protect them.

In December 2016, and again in September 2017, the Home Office published a Policy and Information Note on Bangladesh which made this clear. The Note from September said that:

in general the treatment of LGBT persons in Bangladesh, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm”;

and that

effective state protection against societal ill-treatment may be available depending on the facts of the case”.

A group of lawyers and other stakeholders, including myself, wrote to the Home Office to ask them to reconsider their Note. We explained that the evidence showed that LGBT persons in Bangladesh are at risk of serious harm.

As a result, in November 2017, a new Note was published. This time, the policy summary says that:

In general, an LGBT person who does not conceal their sexual orientation or gender identity may be at risk of treatment, which by its nature and repetition amounts to persecution or serious harm” and that “the state appears able but unwilling to offer effective protection”.

This new Note is a move in the right direction. We are hoping that decision makers will now find it harder to refuse asylum claims by gay, lesbian and bisexual Bangladeshi nationals who want to live an openly gay life in Bangladesh, but would not do so because they are scared of being harmed.

However, some points from the Policy and Information Note are still concerning and misleading. For example, the Note says that “the available evidence does not establish that LGBT persons are systematically targeted and subject to treatment amounting to persecution or serious harm by the state”. Whether there is systematic targeting is not the issue. The Home Office should look at whether, if they went back to Bangladesh, LGBT persons would be at risk of harm, and I would say they are.

Similarly, the notes have consistently stressed that the Bangladeshi police and government do not use section 377 of the Penal Code, which criminalises same-sex sexual acts, to arrest LGBT persons. This is true, however that is not the point. The rest of the evidence shows that LGBT persons are at risk of harm and the state will not protect them. That is the test to apply when deciding asylum claims.

I was at the Upper Tribunal on 28 November for a gay man from Bangladesh. The Home Office accepted that he was gay but they continued to say that the evidence on Bangladesh does not show that he will necessarily be at risk of harm. Therefore, the new Policy and Information Note is still used to argue that Bangladesh is safe. This is why we will continue to push the Home Office to review it.

Thankfully for my client, the Upper Tribunal judge agreed with us and he won his appeal. I have had two other successes at the First-Tier Tribunal for Bangladeshi gay men in the last year. However, we would like the Home Office to accept that Bangladeshi LGBT persons are at risk of harm, without them having to go to court.

In the meantime, if you are LGBT, from Bangladesh, currently in the UK, and you fear for your life were you to be returned to Bangladesh, you should get legal advice as you may have a good asylum claim. Please do contact us to arrange a consultation by phone or by email.

We are delighted that we have been shortlisted for the Human Resources Firm (Specialism) of the year award:

http://www.legal500.com/assets/pages/awards/uk/2018/uk-2018-firms-shortlist.html

 

On 23 November, the High Court considered a challenge to the high cost of fees for a child’s citizenship application.

A child is a British citizen automatically if born in the United Kingdom at a time when one of their parents is British or settled (i.e. has permanent residence or indefinite leave to remain). When Parliament made this law, they also intended for children who could show a clear connection to the United Kingdom to be able to claim citizenship, regardless of their parents’ status – children therefore have a right to register as British if they were born in the UK and have lived here for the first ten years of their life.

This case was brought on behalf of a child, known in this case as ‘VF’, who was born and brought up in the UK. As VF was not born to British or settled parents, she is not automatically British. In order for her to register as British, she needs to pay a Home Office fee of £973. VF, and many other children like her, cannot afford the fee.

The actual cost to the Home Office of processing a citizenship application is £386. The remainder, £587, generates a profit for the Home Office, as part of plans to make the Home Office “self-funding”. There isn’t an exemption or fee waiver, even if a child is in local authority care or their parents are on a low income. This stops children acquiring a citizenship to which they are entitled purely because of their financial status.

The High Court was asked to declare the profit making element of the fee ‘unlawful’. In this case, VF was able to crowd fund to raise money for the application, and was subsequently registered. The High Court acknowledged that thousands of children were affected but declined to rule because the matter had become academic as VF had been registered as British.

Amnesty International and the Project for the Registration of Children as British Citizens (PRCBC) are campaigning in this area and you can read more about this here: https://www.amnesty.org.uk/blogs/childrens-human-rights-network-blog/uk-price-citizenship

If you think you or your children are eligible to register as a British citizen, or would like to know more about this application, please do not hesitate to contact us for an initial consultation.