Feminist and LGBTQ+ Studies

Abstract

Through the Looking Glass - What Queer Refugees Can Focus on to Gain Sanctuary:

The fixation on determining the SOGIESC2S (Sexual-Orientation, Gender Identity and Expression, Sexual Characteristics and Two Spirit) of Queer Refugees has led to the continued lack of engagement by decision-makers, and those who support refugees, with the pivotal “Difference” between refugee victim and potential agent of persecution, where from a lack of voluntary conformity to engrained cultural relativist gender conformity.

Fourteen years after the seminal July 2010 UK Supreme Court judgment in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31, modified the discretion-test at paragraph 82 of the judgment (as per Lord Rodger of Earlsferry), with the Court creating a template to continue to refuse protection claims on the basis of ‘discretion’ based on their personal choice or social pressure.  The Court if Appeal’s 12 November 2024 landmark judgment of the European Court of Human Rights in MI v Switzerland citing, the 2012 UNHCR International Protection No9 (SOGIE) Guidelines, and the obvious reality of what discretion, or concealment actually involves, ie  lifetime of non-guaranteed secrecy, where the First-tier Tribunal not only heard his evidence  in proceedings where the Judge is addressing the specific charges against the establishment of safe zones, but there are always the potential victim. The institutional shadow transitory and insecure form of support he may be able to provide.  Dr Chelvan will, noting his professional conduct duties be able to share what he has developed in his over  25-year practice as a barrister in England and Wales reshaping, or in some cases creating the safe spaces for the hearing of their refugee stories, knowing the devil is in the detail.

Drawing from the author’s litigation, policy, and academic background in England and Wales, the author will analyse the contextual background, and  address the specific cases of SW (lesbians – HJ ad HT applied) Jamaica CG [2011] UKUT 251 (IAC), and LC (Albania) v Secretary of State for the Home Department [2017] EWCA Civ. 351; [2017] 1 WLR 4178 (“the silence fallacy”), and pending by November conference will be able to update the conferences of any recent changes in the legal framework, specifically since the Court of Appeal’s successful on appeal in Secretary of State for the Home Department v. PG [2025] EWCA Civ. 133 (currently seeking permission to appeala to the UK Supreme Court), reigniting the interpretation by the Home Office that any individual who seeks UK-based sanctuary will be forced to accept domestic third party support. To counter-balance this cannon of negative case-law, the author proposes a fundamental shift in refugee law, instigated by the Strasbourg Court’s rejection of discretion-retaining in MI, and by doing so reverses the fact-finding process to “proving straight” in countries known to persecute Queer Refugees, thereby simplifying credibility, plausibility, and RSD.

The core finding the author proposes is determination of non-conformity based on gender and sex roles applied to Queer Refugees, by the potential persecutor, thereby consigning discretion to the historical bin marked “injustuce”.  Through the use of imputed, rather than actual Convention reason, enables Alice (a Queer Refugee), to Walk into the Looking Glass, where the world is reversed, specifically from an intersectional perspective, to battle with the hoard of decision-makers, blocking her path to safety.

Biography

The author, Dr S Chelvan, is a multi-award winning user, person of colour, first-generation Jaffna Tamil immigrant, who lives with a disability, and self identifies as a refugee lawyer, academic, consultant for policy development shaping both nationally (UK Home Office) and globally (UNHCR/IOM/European Asylum Agency).  Dr Chelvan is a charismatic media legal commentator in the United Kingdom, and abroad.  He holds a First in Politics and Law from Southampton University (1998, ranked first in department of seventy),  a Masters in LawFrom Harvard Law School (Kennedy Memorial Trust Scholar), and 2 Doctorates, one Research PhD from Kings College London (2019) and an Honorary Doctorate from the Open University for his commitment  to education of the under-privileged, social justice and the rule of law.  Dr Chelvan was called to Bar by Inner Temple as a Major Scholar in October 1999 and since November 2020, he joined 33 Bedford Row Chambers as Head of Immigration and Public Law (dc@33br.co.uk ). He has been profiled consistently inTier 1 in Legal 500 for Immigration at the London Bar since 2017. He is also an Adjunct Professor at the Centre for International Law and Globalisation since September 2022.