Non-binary identity can form basis of asylum claim, Upper Tribunal finds

A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador 

Mx M is a citizen of El Salvador who had originally claimed asylum as a gay man, but whose identity had evolved during their time in the UK. They now identify as non-binary and has actively campaigned on LGBTI social and political issues.

While living in El Salvador, Mx M was subject to a daily barrage of homophobic abuse, including having rubbish thrown at them and on one instance a bag of urine. They had also been beaten up by police officers because they chose to dye their hair blonde. 

Their original asylum claim based on sexual orientation had been refused and an appeal dismissed on the basis that the suffering to which they had been subjected did not reach the threshold of “persecution” required for an asylum claim. The daily abuse and missile throwing was just discrimination, said the First-tier Tribunal, while the attack by the police had only occurred on one occasion. 

Mx M subsequently made a fresh claim for asylum based on their non-binary identity. This claim was also refused but attracted a further right of appeal. On this occasion, the First-tier Tribunal essentially held it was bound by most of the findings of the previous hearing and dismissed the appeal. 

So are there any broader implications to this case? Like any asylum claim, Mx M’s case is to some extent fact-specific, based on their own particular background in El Salvador.  But the decision is significant. It seems to be the first time the position of non-binary people has been considered in express detail in an Upper Tribunal decision. 

This may seem surprising in the context of the growing understanding and acceptance of gender fluidity in recent years, but it could be a question of the courts playing catch-up with society as a whole. It’s perhaps of note that a landmark employment tribunal decision on the application of the Equality Act 2010 to non-binary people was heard just weeks before the present case.

Perhaps more surprising is the fact the Upper Tribunal actually needed to spell out the application of HJ (Iran) to asylum claims involving non-binary people — evidence that some judges are catching up far more slowly than others.

As such, this determination is an important one. It is a timely reminder to all decision-makers of the principles underlying gender-based claims, while the headnote leaves no room for any lingering doubts: “The principles in HJ (Iran) are concerned with the protection of innate characteristics. As such they are to be applied in claims relating to gender identity”.

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