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”.

Like this article? Share on

Facebook
Linkdin
Twitter
Telegram
WhatsApp

Related articles

Information about our own complaints process, raising concerns to the Legal Ombudsman and to us

We want to give you the best possible service. However, if at any point you become unhappy or concerned about the service we provided then you should inform us immediately, so that we can do our best to resolve the problem.

In the first instance it may be helpful to contact the person who is working on your case to discuss your concerns and we will do our best to resolve any issues at this stage. If you would like to make a formal complaint, then you can read our full complaints procedure here. Making a complaint will not affect how we handle your case.

The Solicitors Regulation Authority can help you if you are concerned about our behaviour. This could be for things like dishonesty, taking or losing your money or treating you unfairly because of your age, a disability or other characteristic. 

You can raise your concerns with the Solicitors Regulation Authority.

What do to if we cannot resolve your complaint

The Legal Ombudsman can help you if we are unable to resolve your complaint ourselves. They will look at your complaint independently and it will not affect how we handle your case.

Before accepting a complaint for investigation, the Legal Ombudsman will check that you have tried to resolve your complaint with us first. If you have, then you must take your complaint to the Legal Ombudsman:

  • Within six months of receiving our final response to your complaint; and,
  • Within one year of the date of the act or omission about which you are concerned; or
  • Within one year of you realising that there was a concern.

 

If you would like more information about the Legal Ombudsman, you can contact them at the following details:

 Contact details

This website uses cookies to ensure you get the best experience on our website. By closing this message, you consent to our cookies on this device in accordance with our cookie policy unless you have disabled them.