Homosexuality in South Korea
By Dominik Young Immigration Law Solicitor Linkedin
Danielle Cohen Solicitors have represented a gay South Korean national in his claim for leave to remain under Appendix FM Ex.1 on the basis of his civil partnership with a UK national. We are experienced in gay asylum cases, and are now representing him on his human rights appeal against the Home Office refusal. He cannot return to South Korea due to the homophobic persecution he would be subjected to as part of his compulsory military service.
The case has been covered in the Financial Times (May 15th 2018):
The case is focused of Article 8 ECHR: the right to private and family life. This is a right that is balanced against the public interest. The client was told by the Home Office that there were no insurmountable obstacles to continuing life with his British partner in Korea. This decision stands against the evidence of the treatment of homosexuals in South Korea and ignores the clear procedural obstacles preventing the UK national to get a visa for South Korea.
As South Korea recognises no legal partnership between members of the same sex, it would be impossible for the South Korean national to sponsor his partner’s application for a visa in Korea. This clear practical obstacle was not considered by the Home Office. Nor did the Home Office take account of the British partner’s inability to speak Korean, or the difficulties he would face if he had to leave his well-paid position, as he would not be able to get a job in Korea because of the language-barrier.
Expert testimony was provided to the Home Office. The professional expert on South Korea noted in the testimony that South Korea is prone to a strong predisposition to view that homosexual behaviour is socially unacceptable. The chairman of the conservative party, Saenuri, has repeatedly described homosexuality as “an outrage against humanity”.
LGBT communities face widespread discrimination in the Republic of Korea (South Korea). No form of legal partnership or marriage is available to same-sex couples, and Article 92 of the Military Penal Code deems same-sex activity to be “sexual harassment” and can be punished by up to a year in prison, while same-sex intercourse is classified, shockingly, as “reciprocal rape”, regardless of whether it is consensual. The legality of the Code is currently an issue before the South Korean Constitutional Court, but in April 2017, it was revealed that South Korea’s army chief of staff had ordered an investigation into homosexual military personnel, identifying 40-50 names.
The treatment of homosexuals in the military was a highly pertinent issue, as the client would be required to enrol in military service, were he to return to South Korea. The persecution likely to be suffered may amount to a violation of Article 3 (the prohibition of torture, inhuman and degrading treatment). The threshold for Article 3 is high; for degrading treatment to be found, there must be evidence of a real risk of humiliation, debasement, and the breaking of a migrant’s physical and psychological resistance. The victim may be driven to act against their will or conscience. The infliction of fear, anguish and inferiority is seen by the Strasbourg Court as hallmarks of inhuman treatment (Kudla v Poland).
It is not only military personnel that face discrimination. Seoul’s annual Queer Parade is regularly protested by anti-LGBT conservative Christians who suggest that the LGBT community have allegiances to North Korea. The Home Office refused to take into account the expert testimony on the treatment of LGBT communities in Korea and gave no reasons for this.
The threshold for Article 8 (the right to private and family life) under the ECHR was clearly met, as there was a genuine and subsisting relationship and civil partnership, and therefore the Home Office decided that the interruption of the relationship of two men in a civil partnership was proportionate with the public interest in preventing the South Korean national from being granted leave to remain. This is a calculated decision by the Home Office as part of the ‘hostile environment’ policy whereby reducing immigration is deemed to be a public priority.
There is a right of appeal in this case, but the process can only be completed from abroad, namely South Korea. It is clearly disproportionate to require the South Korean national to return to Korea in order to appeal, where there is no sound or sensible reason for doing so.
It is to be hoped that the Home Office will come to appreciate the difficulties faced by LGBT communities in much of the world and will end the ‘hostile environment’ policies that make it so difficult for migrants to make their case, even where there are human rights concerns. In the meantime, Danielle Cohen will continue to protect the vulnerable and help them plot a course through the bureaucracy of the Home Office application and appeal processes.
Danielle Cohen is experienced in the cases of gay asylum seekers, who will often have their sexuality doubted by the Home Office.
Find out more about how we can help with asylum applications here.
Dominik Young, Danielle Cohen Solicitors, 14th September 2018
Why Gay Asylum Seekers Aren’t Believed (By the Home Office), 2017
Still Human, Still Here: Sexuality-Based Asylum Application Success, 2018