Dr Alex Powell

The UN Sustainable Development Goal #16 calls for states to provide ‘access to justice for all and
build effective, accountable and inclusive institutions at all levels’. It is commonly assumed that
“developed” nations have attained these goals. However, this chapter draws on the author’s research
with sexually diverse refugees, alongside a conceptualisation of ‘Administrative Violence’, to argue
that UK institutions—such as the Home Office—continue to operate in ways which undermine core
targets and indicators associated with this goal. For example, instances of rule-breaking, dubbed
‘Administrative Lawlessness’ by Juss, push against target 16.3, which calls on states to ‘promote the
rule of law at the national and international levels and ensure equal access to justice for all’.
Similarly, the largely behind-the-scenes, decision-making practices of the Home Office challenge
target 16.6, which calls for states to ‘develop effective, accountable and transparent institutions at all
levels’. Thus, through the deployment of the concepts of Administrative Violence and Administrative
Lawlessness, and an analysis of eight semi-structured interviews with sexually diverse refugees
(undertaken 2018-2020), the chapter will argue that the UK continues to fall short of Sustainable
Development Goal #16 in fundamental ways. In so doing, the chapter will mitigate against the
complacency of “developed” nations in upholding international norms.

In the case of HJ and HT v Secretary of State for the Home Department, the Supreme Court of the United Kingdom ruled that the previous position which held that asylum claims would not be granted in situations where discretion or concealment of an individual’s LGBT identity could remove ‘well-founded fear of persecution’ was illegal. In passing this judgment, the court has refocused the attention of decision makers, from proving that there is a ‘well-founded fear of persecution’ to proving that the individual is a member of the ‘particular social group’ under which they make their claim. Since 1999, the UK has upheld the possibility of LGBT individuals making successful claims under the ‘Particular Social Group’ of the Refugee Convention (1951). However, this raises as many questions as it answers – most pressingly, who represents a member of particular social groups, such as ‘gay’ and ‘lesbian’. Hathaway and Pobjoy have argued that, in the HJ and HT decision, the ‘all embracing’ decision of Lord Roger expanded the scope of the convention too far, distorting the common relationship between refugee law and international human rights practice. This article argues that, on the contrary, the judges in HJ and HT did not go far enough. Indeed, in their haste to find a decision which avoided the deeply problematic ‘discretion’ criterion, it is argued that the judges reified problematic and limiting ideas of what it means to be a gay man. This is primarily because their understanding of terms such as gay is rooted within normative, western stereotypes. This article argues for a ‘queer’ understanding of how LGBT people fit within the ‘particular social group’ framework, demonstrating that the present situation undermines the aims of the convention.

‘The Will of the People’ has become a key refrain of government ministers since the United Kingdom voted to leave the European Union in June 2016. This chapter draws on the theoretical contributions of Carl Schmitt to suggest that the Brexit referendum was a manifestation of constituent power, the legitimacy of which undermines accepted norms of the UK’s unwritten constitution. Given the peculiarity of referendums within standard UK constitutional practice, the chapter focuses on the underappreciated power of rhetoric surrounding Brexit to justify executive actions contrary to established norms. Going on to examine the possibility of Parliament being stripped of its role as the final decision-maker within the UK’s constitutional setup, the chapter concludes by warning of the potential for new discourses around public sovereignty to make fundamental changes to the constitutional practice of the UK.

In 2016, the Home Office issued a new Asylum Policy Instruction on Sexual Orientation. The policy has been heralded as a move away from conduct towards identity in the Home Office’s institutional conception of sexual diversity. However, the merits of this shift have received limited critical attention, with most scholarly work focusing on the failures of implementation surrounding this move and the ongoing procedural and substantive issues in asylum claims by sexually diverse people. This thesis draws on eight semi structured interviews with sexually diverse refugees—and, therefore, former asylum seekers—to offer a queer critical analysis of the 2016 Asylum Policy Instruction: Sexual Orientation in Asylum Claims. The thesis then explores the wider cultural sources of our knowledges and discourses around sexual diversity, with a view to understanding how both the 2016 Asylum Policy Instruction and the narratives of sexually diverse refugees and asylum seekers arise are likely to be read and interpreted by decision-makers. The analysis utilises a framework of lived experience to detect mismatches between the heterogenous self-conceptions of sexual diversity held by sexually diverse refugees and asylum seekers and the forms of sexual diversity recognised within both the 2016 Asylum Policy Instruction and contemporary “western” culture. Employing a benchmark standard set around protecting the full heterogenous span of sexual diversities from human rights abuses, the thesis then offers critical considerations for future policy and research regarding sexually diverse refugees and asylum seekers.