The Upper Tribunal court, which handles immigration and asylum cases, explicitly ruled that those at risk being persecuted of their non-binary or gender diverse identity can seek asylum in the UK. The recent case, in which an El Salvador citizen – who goes by the title Mx – has been given asylum in the UK because they would face persecution for their gender identity if returned to said region, is the first instance where the court has provided someone sanctuary on the grounds of their non-binary identity.
The citizen had been twice refused asylum by a lower court. They originally claimed asylum on the basis of being gay, saying they had been subjected to a daily homophobic harassment and violence while living in El Salvador, but were denied as this did not qualify as ‘persection’. They then made a second, fresh claim for asylum on the basis of being non-binary, which they discovered after living in the UK and exploring their gender identity.
The judge of the case said: “The appellant has already left El Salvador once because they could not tolerate the treatment that they endured there; now that they believe themselves to be far more vulnerable to attack it seems likely to me that they would feel compelled to modify their behaviour, including their political and social activism, to live ‘discreetly’. Having had regard to the country background evidence, and the evidence personally relating to the appellant, I am satisfied that they would do so for no reason other than a fear of persecution. It follows that… the appeal must be allowed.”
They also criticised the previous decision to not grant asylum on the previous appeal, despite the citizen being assaulted by El Salvador police officers, saying: “It was a physical assault, by the police, motivated by nothing other than homophobia. Five minutes is a long time to be beaten. I do not doubt that it was for the appellant a terrifying experience.”
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