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Into the Shadows Again

Why the United Kingdom's Nationality and Borders Bill 2021 is Bad News for Queer Asylum Seekers from the Global South


With the onset of the COVID 19 pandemic, queer asylum seekers have faced increased difficulties, both as immigrants and based on their gender or sexual identity. Increased border controls due to the fear of the pandemic have forced many to defer their travel to the host nation, and hence, they continue to bear persecutory circumstances in their country of origin. Those who have already made the journey find it challenging to access essential services like healthcare and work, which makes them vulnerable to economic exploitation in an environment of decreased mobility and internal restrictions. Yet, the United Kingdom (hereafter, U.K.) government has decided to introduce stricter immigration legislation in the form of the Nationality and Borders Bill 2021 (hereinafter ‘the 2021 bill’) to control open borders and uncontrolled migration. In her opening speech on the second reading of the UK.’s 2021 bill, Priti Patel, Home Secretary of the U.K., even described immigrants as ‘organized criminal gangs’ illegally arriving on the country’s shores and costing taxpayers ‘over a billion pounds a year.’ She then went on to add enough of people drowning on these dangerous, illegal, and unnecessary journeys…enough of economic migrants pretending to be genuine refugees…enough of being told it is racist to…fix this failed system.’

These statements echoed the anti-immigration populist politics of the nation that have gained momentum since the era of Theresa May as Home Secretary and British Prime Minister and continued under BREXIT and the election campaign of Prime Minister Boris Johnson. It is a politics that do not consider particular circumstances of asylum applicants. Instead, these policies rely on the age-old notion that migration puts stress on a country’s resources, displaces natives from their jobs, overburdens public services and causes social tension by aggravating racial conflict, thereby undermining the stability of the state. Post 9/11, this stereotypical attitude towards immigration escalated when economic insecurities were intermixed with security concerns. This intensified the political and public perception against immigrants from Global South who have been casually name-called criminals, rapists, bank robbers, etc. Muslim women who wore burqas were called letterboxes in the 2019 general elections, and immigrants were advised to learn English and not treat Britain as their own.

Are Immigrants Really a Burden?

Such political discourse on immigration misinforms the general public about the contribution of immigrants to the U.K.’s growth. They do not discuss how immigrants fill labour gaps in the market of countries with lower birth rates and higher older populations. They conceal how immigrants increase a nation’s productive population without the host nation investing in the education system. They also hide from the public that in countries like the U.K., laws are in place to limit the recruitment of international applicants to only those jobs that resident workers are unwilling to take or there is an inadequate supply of resident workers in those occupations.

More importantly, they obscure the fact that undocumented migrants, including queer asylum seekers who are often forced to make illegal and dangerous journeys to suddenly flee their precarious circumstances, contribute significantly to state welfare policies even though they never benefit from them. They pay state and local taxes in the form of state income tax, property tax on homes they own or rent, sales, and excise tax on goods and services they purchase. Those undocumented immigrants, who secure jobs by obtaining fake identity cards, like National Insurance Number in the U.K., pay payroll taxes because employers withhold taxes from employees to pay for Social Security and Medicare programs regardless of the employee’s legal status.

Undocumented immigrants are neither eligible for these benefits under the law nor do they risk claiming these benefits in fear of alerting the authorities of their unauthorized status. They voluntarily pay taxes directly (income tax, property tax) or indirectly (sales tax, payroll tax) to demonstrate their roots in the host country and contribute to the economy. However, immigration hardliners overlook these contributions of immigrants, especially those who are undocumented. Instead, they unilaterally focus on hardening the attitudes of the political class and native citizens against immigration, often propagating harsher state legislation and policies on the subject, such as the Nationality and Borders Bill 2021 of the U.K.

New Measures Proposed in Nationality and Borders Bill 2021: Assessing the Repercussions on Queer Asylum Seekers

The bill proposes several new measures concerning access to asylum in the U.K., which raises several concerns for the queer community. The first measure that raises concern for queer immigrants is requiring applicants to come to the U.K. directly from a country or territory where their life or freedom was threatened. It forbids adjudicators from taking applications of those applicants who made their way to the U.K. via another country unless they can demonstrate why they could not seek refugee protection in that country. The bill also mandates that the Secretary of State has the right to declare an asylum claim inadmissible if the applicant has a connection to a ‘safe’ third state.

These provisions ignore that many queer asylum seekers often flee their country under immediate threat and that resettlement plans are an afterthought when the intent is to safeguard their lives. The meaning of the term ‘safe country’ may differ from applicant to applicant based on their particular circumstance as it may depend on various personal and non-personal factors. For example, an applicant may flee their home immediately to travel to another country but later decide to apply in the U.K. due to an existing support system they may have in supportive friends or family members. What constitutes a safe country or environment also depends on legislation in the arriving nation, and not all nations and regions of the Global North guarantee equal rights to queer persons. For example, until January 13, 2020, same-sex marriage was not legal in Northern Ireland. Would the U.K. government consider it a ‘safe harbor’ for queer citizens and non-citizens? The second suggested measure is that asylum seekers should make a claim immediately upon arrival to the authorities ignoring that queer asylum seekers may find it difficult to reveal their sexuality and reason for arrival immediately at the port of entry. Especially those arriving from nations of the Global South may have an inherent apprehension stemming from years of hiding their sexuality in the country of origin. This may also be due to distrust of the authorities, given they arrive from nations where their sexuality is criminalized and societally shunned with the active support of the state.

The bill also laid down new evidentiary requirements for asylum seekers. It proposes that applicants provide evidence in a stipulated time to support their claim. Late submission of evidence will lead to giving ‘minimum weight’ to the evidence by the adjudicator and would impact the credibility assessment of the applicant. This provision may severely impact queer asylum cases as, more often than not, their travel plans are spontaneous, made with an aim to escape persecution immediately. Gaining information about procedural requirements and gathering evidence of their persecutory experiences is the last thing on their mind when travelling to ‘safety.’The bill also makes arrangements for speedy disposal of the appeal, requiring applicants to appeal against the decision of the asylum tribunal within five working days and requires adjudicators to decide on the appeal within twenty-five working days. This is simply rushing the process, which may tamper with asylum seekers’ right to a fair hearing and due process. Furthermore, speedy trials in asylum cases will tamper queer applicants’ ability to gather new evidence to support their claim. It often takes years to source evidence, especially when it has to arrive from foreign shores. The new bill also proposes increasing the maximum sentence for people assisting unlawful immigrants or asylum seekers from fourteen years to life behind bars. This measure, if implemented, will create an environment of threat even in the minds of lawful permanent residents and temporary visitors. They may get reluctant to report hate crimes or access healthcare and other public services. Many may see this as entanglement with law enforcement agencies and fear that their information might be used either against them or to trace their undocumented relatives in the country.

In addition to proposing several new problematic measures, the bill also retains and reiterates some old immigration guidelines, like rejecting asylum based on the suggestion of internal relocation. This suggestion is unsuitable in claims based on sexual orientation because it relies on the utopia that homophobia is a region-specific problem and will wither away by simply relocating to another city in the country of origin. It is basically an inventive strategy used by adjudicators to hand out denial of eligibility for asylum even when the credibility of both sexuality and persecution gets established by the claimant. In claims of state-sponsored homophobia, assuming the availability of state protection to the claimant upon relocation is an anomaly. State protection should be evaluated based on the country as a whole and not on whether it is available in one part of the country or the other. Suppose the country of origin provided adequate protection to the queer asylum seeker or allowed them to live life with dignity, why would the applicant make efforts to detach himself from his roots and relocate. Thus, reiterating this tactic in the new bill only reconfirms the U.K.’s efforts towards speedy disposal of asylum backlog instead of speedy dispensation of relief and justice to those in need.

Is There a Need for This Bill?

There are already measures in place to tackle illegal immigrants and non-genuine asylum seekers. For example, the U.K. government, post-2012, enacted various legislative and administrative measures to ensure that immigrants voluntarily leave the country. For example, the burden of proof for establishing legal settlement is shifted to non-British passport holders as they are required to verify their immigration status at every step of the way. The Immigration Acts enacted in 2014 and 2016 specify several measures towards this end. Such as requiring landlords to legally check tenant immigration status before renting, conducting immigration status checks of driving license applicants, and making it compulsory for banks to check applicant names against the list of immigration offenders before opening their bank accounts.

The situation is equally precarious for those applying on humanitarian grounds as the process requires strict interrogation by immigration officials or caseworkers. Asylum seekers are already asked to provide travel and identification documents along with proof of residence in the U.K. Those already staying in the U.K. are also required to provide evidence of their U.K. address. Claimants who are unable to submit these procedural proofs cannot process their applications. Those who do get a chance to process further face problems in providing evidence of persecution, especially when they are in legal detention.

Those who win asylum also do not automatically transition to the status of a citizen. They are required to wait five years for applying for permanent residency. Further, all permanent residents are required to wait for twelve months before applying for citizenship. They must also prove good character, knowledge of the English language, and life in the U.K. However, the waiting period is three years for those applying based on their spouse being a British citizen. Thus, there are already adequate systems in place to tackle illegal immigration. The government should focus on strengthening its implementation instead of satisfying the populist uproar of anti-immigration crusaders by adding arbitrary provisions to the existing legal immigration system.

The ‘Othering’ of the Immigrant

The bill reiterates the exclusionist political posturing against immigration in the U.K., further intensifying the ‘othering’ of immigrants vis-à-vis citizens. Increased hate crimes against non-Caucasian immigrants in the past is a testament to that. Newspapers have regularly reported vandalism of mosques, homes smeared with racial slurs, immigrants being asked in the public areas to ‘go back to their country’ and verbal and physical assaults, including murder.

These measures will only make the situation more precarious for sexual minorities. Those who endure sexual assault, harassment or hate crimes already hesitate to report atrocities on them in fear of entanglement with law enforcement, especially if their immigration status is ‘illegal.’ Those who entered legally may also avoid filing a legal complaint of harassment, fearing that the case may draw attention to their sexuality or gender identity, which may, in turn, result in a backlash from the homophobic elements within the diaspora community. Those who nevertheless decide to report an instance of harassment have no guarantee that the process will be fair towards them with new evidentiary and technical guidelines. Moreover, there is always a chance that officials handling the case may lack proper training and sensitivity to understand queer issues in the backdrop of the new immigration guidelines. In such a context, sexual minorities who are already minority within a minority in the group of immigrants and the nation at large may have to bear added marginalisation and be forced into the shadows again.

Priya Mathur has completed her PhD from Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. Her research focuses on intersection of gender and queer rights with international human rights law.

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