Assessing GLBTI Refugee Claims: Using Human Rights Law to Shift the Narrative of Persecution within Refugee Law

Abstract

The decision of the UK Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department was a landmark decision in its rejection of the principle that gay, lesbian, bisexual, transgender or intersex (‘GLBTI’) refugee applicants had to take reasonable measures to conceal their identity. This paper seeks to critically assess the way in which the Court engaged with human rights principles when reaching its decision. In doing so, it offers some critical insights about the relationship between international human rights law and international refugee law in the context of GLBTI claims forrefugee status. It suggests that distinctive interpretative communities exist within refugee law and human rights law, each of which has developed autonomous meanings for terms that may be used within each regime. This has created some confusion and misunderstanding with respect to the use of norms such as privacy, non-discrimination and inhumane treatment to inform discussions about the basis of persecution and the nexus requirement under the Refugee Convention when considering claims by GLBTI refugee applicants. This paper seeks to address these misunderstandings and offer a way to move the debate forward between the human rights and refugee law interpretative communities.

Keywords: Refugee law, human rights, sexual orientation

JEL Classification: K00, K33, K39