UK: Upper Tribunal confirms non-binary identity can form basis of asylum claim

Thursday, October 22, 2020

On 22 October 2020, the Upper Tribunal (UT) published its judgment in the case Mx M (gender identity - HJ (Iran) - terminology) El Salvador [2020] UKUT 313 (IAC)
The case concerns MxM, an El Salvadorian national, who had originally claimed asylum in the UK as a gay man. While in the UK, MxM further explored their identity and, by the date of the unsuccessful appeal before the First Tier Tribunal (FTT) MxM, expressly identified as non-binary. 
The UT noted the marked absences, from the FTT’s decision, of the principles set out in HJ (Iran), the leading authority on persecution based on sexual orientation and gender identity. Following HJ (Iran), the UT considered that the failure to make a clear finding about whether the applicant was a member of a particular social group, had caused the FTT to err in law from the outset of its decision. Furthermore, the UT found that the lower tribunal had not accounted for the full extent of the evidence in the appellants fresh claim as a person identifying as non-binary. 
From a procedural aspect, failure to make a positive finding on the appellant’s identity meant that the applicant was referred to as ‘he’ throughout the lower tribunal's decision. The UT referred to the Equal Treatment Bench Book, noting the importance to respect a person’s gender identity. In terms of the substantive protection issues, the UT noted that the lower tribunal had seemingly reduced evidence of MxM’s core identity to their change of appearance and style of dress and hair.
The UT found further errors in law in relation to the question of whether the members of the LGBTI social group face persecution in El Salvador if they live openly. Firstly, it held that the FTT had failed to consider all the relevant COI evidence made available to it regarding the treatment of LGBTI individuals and, more specifically, the treatment of those who were perceived to be transgender women. Secondly, the UT made a finding of perversity in relation to MxM’s risk of persecution. 
The third and fourth questions in HJ (Iran), in essence, ask whether claimants in these circumstances could reasonably be expected to behave "discreetly" to avoid persecution. In light of the absence of a proper analysis of the risk of harm, the Upper Tribunal stated that the FTT’s response in regard to these considerations was not sufficiently clear. 
Following the UT’s finding that the decision of the FTT contained material errors of law, the decision was set aside. As such, the UT allowed the appeal and remade the decision. The UT conducted a risk assessment, following the principles in HJ (Iran). For that purpose, it held that MxM’s identity was visibly ‘other’ and they would be perceived to be a transgender woman. The UT concluded, having regard to relevant COI indicating a risk of persecution, that MxM themselves would modify their behaviour, including their political and social activism, to live ‘discreetly.’ The Court was satisfied that they would do so for no other reason than a fear of persecution.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Membership of a particular social group
Persecution Grounds/Reasons
Sexual orientation