Globally recognised legal expert on refugee and human rights claims based on sexual or gender identity and expression.
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Dr S Chelvan
Transcript of interview that took place via Zoom between Amelia Smithers and Dr S Chelvan
Call 1999, Inner Temple
Thank you, Dr Chelvan for giving this interview for the Inner Temple’s project Race and the Legal Profession. I will begin by introducing you. You are the head of Immigration and Public Law at 33 Bedford Road Chambers, and you were named Legal Aid Barrister of the Year in 2014.
You originally arrived in the UK aged four from Sri Lanka, and your name is a typical Sri Lankan Tamil one. “S” is the first letter of your father’s last name. You only use the first letter, and “Chelvan” is your given name, used as your last name by which you are known. You've been an out gay man for the last 25 years, since your early 20s, and have built your reputation as a globally recognised legal expert on refugee and human-rights claims based on sexual or gender identity and expression. You have represented clients up to and including the Supreme Court and European Court of Human Rights at Strasbourg.
Your chambers website says that you have spearheaded some of the leading cases since 2005 in the field of LGBT-plus asylum law, and have provided consultation to the United Nations, national government departments and NGOs. You gained a first in politics and law at Southampton University in 1988. You were awarded a major scholarship and Duke of Edinburgh entrance award by The Inner Temple, and you were called to the Bar in 1999.
You gained pupilage at Doughty Street Chambers and 2 Garden Court, and during your pupillage year you undertook an academic sabbatical, having been awarded a visiting research fellowship in 2000 by Northwestern University in Chicago, and as a Kennedy Memorial Trust scholar at Harvard Law School.
You were awarded an LLM in 2001 specializing in international human-rights law and the lesbian and gay liberation movement. Returning to the UK in 2001, you established your practice specialising in LGBT-plus asylum and human-rights cases, and spurred by your first for academic research while practicing at the Bar. In 2019, you awarded a PhD in law from King's College London, for your thesis entitled At the End of the Rainbow: Where Next for the Queer Refugee.
I think you will agree that one of your principal accomplishments has been to develop a model known as DSSH, standing for Difference, Stigma, Shame and Harm, developed in 2011, of open-ended, non-adversarial questioning that can be used to determine the credibility of LGBT-plus individuals seeking asylum, and make the required interviews less like an interrogation, and less judgmental and intrusive. This model is used globally and has been endorsed by the United Nations High Commissioner for Refugees since 2012.
Can you tell us a bit more about this model, and how it has made a difference around the world?
Dr S. Chelvan: What a fantastic introduction, thank you so much for that. I mean, the model. I am proud to be an activist lawyer, and I’m very honoured to be a member of The Inner Temple who – without which, you know, through the [inaudible] scholarship award and [support] throughout, and I’m sure we'll talk about that later on – have been instrumental in my ability to thrive at the Bar and be visible. And so what – as an activist lawyer I sort of try and intertwine the issues between legal, academic and my policy work.
So, from 2004 until 2010, the Labour government, through the courts, introduced what was called a “discretion test”. So if you were lesbian, gay or bisexual, whilst it was accepted that your identity in relation to your sexual identity, and it was accepted that your country of origin would persecute you because of your sexual identity.
If I point a gun towards [you, Amelia?], would you go towards the gun or away from the gun?
Absolutely. And that’s what the test] was about, is that the majority of people who face persecution would go away from the harm. So the test was developed from 2004 in a case called “Z” in the court – from an Australian High Court case in 2003. What that 2004-2010 test was, is that discretion reasonably tolerable?
So the first case I litigated [as Sole] Counsel in January 2006 to the court of [Appeal] was RG (Colombia). Even though my client was accepted to be gay, was accepted that the vigilante death squads in Colombia went around and exterminated and killed, extrajudicially, gay men, trans people, prostitutes – those were not acceptable.
And even though we had medical evidence, [that] any form of discretion would cause my client a breakdown, the Court of Appeal said, No, that's not enough. You know, gay, lesbian, bisexual people were returned to these countries of origin, and 98-99% of refusal letters [were] relied on the Home Office, not on rejecting the credibility of the individual regarding their sexual identity, but on the basis that it would be [reasonably intolerable for] them to be returned to the country of origin.
So in July 2010, a major case [in the Supreme Court called] HJ (Iran) and HT (Cameroon) and I was very honoured to be HT (Cameroon)’s junior counsel in the Court of Appeal – what the Supreme Court said in the landmark judgment is still the framework for all [protective] claims in the UK, was that look, no straight person would find it reasonably tolerable to be discreet.
So if a person is discreet because of their fear of persecution, then they’ve gone to refugee status. However, if persecution is not one of the reasons, so it’s only social pressure, [inaudible] or whatever that may be, then Lord Roger – paragraph 82 of the guidance – made it quite clear that the individual could be rejected from asylum.
So since 2010, by – one of my strands of my litigation [inaudible] was to get rid of the discretion test.
But what happened was – following the judgement of 2010 – exactly what happened in Australia, following [S395] in 2004, was that the Home Office moved from discretion to disbelief. So having [prior to HJ (Iran)] accepted that these individuals were bisexual, the Home Office started to produce “Prove that you’re gay”.
Now, the question is, how does somebody prove that they’re gay? How does some person prove that they're straight? So at the time I’d just started my PhD research at Kings in 2008. I thought there’s got to be a way – and that’s what transported my litigation mind into my academic persona.
So I said, Well, we’ve got to create some sort of model to try and address it. So in April 2011, I was asked by ELENA the European Legal Network, to provide training, and I thought, what are the concepts? What makes the queer refugee?
And I looked at difference because if it wasn’t for the difference of the refugee, they wouldn't suffer persecution. So – and the stigma attached to that. So I looked at my own journey, my own emotional journey, as a queer man who realized I was different when I was 14, that light bulb moment, and I looked at my history regarding my gender nonconformity as a child, and my lack of ability to adhere to the stereotypes of what a straight person would be. to
And so I developed concepts of different stigma and shame and harm. And then in June 2011, I went to – I was invited by UNHCR to attend a meeting in Geneva of NGOs, and a representative from ORAM, a US organization, [and he said] look with UNHCR, we need a questionnaire.
We need 40 or so questions which we can give government officials in order to be able to prove “gay”. Now, I think you’ve only met me for 10 or 15 minutes. I’m not exactly a shy, retiring wallflower type. So I immediately shouted out and said “Absolutely no way!”.
Because I knew what – how the Home Office proceeds with Somali minority [You answer 15 out of the 40 questions correctly – Ah-ah, you’re not Somali minority clan. You answered 39 out of 40 questions correctly? Ah-ah – you’ve learned the answers from the internet.
So I said absolutely, you know, we can’t have questionnaires. We must have the trigger questions [that] enable the refugee to be able to tell their story. So that’s why I created the DSSH mode you know, because my role as a barrister is twofold. Firstly, as a storyteller. I tell my clients stories. And secondly as an interpreter, to interpret their stories into what – the foreign language we call the law.
So the first thing is to create that safe space. So the individual through these trigger questions can go [their] narrative of different stigma, shame and harm, and it is not primarily as a credibility setter, but as a positive tool. So for example, there will always be exceptions, those who do not fit the narrative in relation to their emotional journey.
So that’s why it’s very important to stress that the way the Home Office has sometimes used the model, and they adopted the model in 2014-15, after the independent Chief Inspector Borders Immigration recommended the adoption of the model in his review of the Home Office approach to sexual identity claims after the harrowing tales of intrusive, irrelevant questions on sexual practices.
Home Office immigration officers were asking gay asylum-seekers questions such as “What attracted you to a man’s back site?” That was [reported in the Observer in] February 2013. And other sexually explicit [questions].
Is that, you know, from the adoption, the model [is there as] a positive tool. So I created the model in 2011. As I said, sorry, as you said, UNHCR actually invited me to a round table of 23 government officials in Geneva, the week we refer to... [interruption]
The same week as a [number nine, paragraph 60 to be referred to]. I was an external expert consulted for that, and so, from then, New Zealand, Sweden, Finland, Norway, governments around the world. Fast forward to now. It’s adopted by UNHCR in 2012.
UNHCR, the IOM used it for all their global training in 2015. I gave some training to Hong Kong officials last September, November. Canada uses it. The European Asylum Support Office uses it not just for sexual [inaudible] gender identity [inaudible].
I don’t have copyright. Sorry, I have copyright, I don’t have trademarks. I don’t get royalties from use of the model. But those people who use the model – one of my solicitors last week told me: I use your model, my clients get asylum.
So that the reach is, you know, critiques of the model inaudible, and it’s quite interesting as a lawyer, and now as an academic and I work in policy. You know, it’s an honour to have fellow academics criticise the work I do with public journals. You know, if you asked me 20 years ago, would I have academics referring to me in journals, I’d be very surprised, but you know, it’s going through rigorous critique and analysis.
And the most important point is that the refugee is able to be in a safe space and tell their story, in order to be able to gain safety and refugee status.
Well, all that shows the impact your work has had at global level, so what do you think you’ve accomplished generally to global [inaudible] level?
Well hopefully the ability for decision-making judges to be able to understand what it is to be different. Because there was – when I started as a pupil as – I came back from Harvard in 2001, and Harvard was an amazing opportunity for me to be able to really explore academic issues and engage with the points.
I mean – English legal education is very formulaic. A plus B equals C, where Harvard gave me the opportunity to say, Look, you want to get to the letter G. As a lawyer, you invent the formula. And that revolutionized my approach to the law. So when I came back, it was all about sex!
You know, the cases were – the classical Iranian case was, you’re discovered by the [sounds like Basil “the religious police, in your bedroom with your boyfriend, and you run out on top of the roof and you jump off roofs to be able to escape...
And [there was] a huge climate of disbelief by not only the Home Office but by judges in relation to this. And what they said in effect is that – Well as long as you can conduct sex in the privacy of your home, then you’re not really going to suffer persecution.
In 1989, a case called Binbasiyou know, a Turkish-Cypriot case, you know, Mr Justice Kennedy said he was presented with arguments, submissions by the Home Office, which said, Look, sex is something you can refrain from. You’re only going to get into trouble if you have sex. So on that basis, the refugee convention doesn’t protect individuals who can refrain from sexual acts before [inaudible] persecution.
Now, you know, you’re filming me, I’m here in my study in my home in Kings Cross, I’m – my husband and I have been together for over 20 years. Civil partnered and married in the Inner Temple, civil partnership [inaudible] 2006 and upgrade to marriage.
And my life, unfortunately, or fortunately, is not just about sex. You know, I go out of this study door, I go out of my apartment and I go into the outside world. And you know, I don’t prove that I’m gay by having sex in front of a third party. You know, I talk about my love, my emotions – the Yogyakarta principles are affections, emotions and conduct which goes to the issues of identity.
So for me, it’s about giving the opportunity for the refugee’s voice to be heard. You know, my USP, was al– has been for many years to be the mouthpiece for those [inaudible] who have no voice. And a person – as a queer person, as a person of colour. As a first-generation immigrant, as someone who lives with a disability, who predominantly went to state schools, who didn’t go to Oxford Oxbridge
My issues in relation to being able to stand up and change the law, be and activist lawyer, to empower others. So for me, it's about providing that voice, providing that moment and being visible.
And how do you think things have changed for LGBT-plus asylum seekers – I think you use a different expression rather than “asylum seekers” – in recent years, and how do you see the road ahead for them?
Well, I deliberately don't say “asylum seeker”. I mean, a part of one of my very amazing friends and colleagues and just training to be a barrister. And she was disbelieved by the Home Office for 13 years, and we used [inaudible] to provide her a voice and she got asylum in August 2017. But in her case, you know, she’s part of an organisation called [African] Rainbow, that she set up, and she says, Look, you put the individual in as an asylum seeker and they take the whole identity of the asylum system. So a person seeking asylum, put the human before the system.
And the major issue is not only credibility by – I was invited by the]chief inspector to do a review as an independent reviewer on Home Office Country Reports on sexual orientation and gender identity and I ended up reviewing 31 Home Office Country Reports. [It’s an] over 400-page report, you get it on the independent chief inspectors’ [website].
And I provided 10 recommendations, six of them which were fully accepted by the Home Office, two partially accepted two [which had been] rejected. And we’re talking about engaging with [the Home Office’s accurate decision making.
Now today, the 18th of August, the Home Secretary has announced last night the bespoke Afghan citizens’ resettlement scheme. And whilst it’s a starting point, 5,000 refugees in the first year by the end of the year, you know, those people who are left behind, they don’t stop being persecuted until two years from when they come and be resettled. So it’s very important to have accurate country information.
So the other issue I have in relation to the Home Office country policy information team needing to provide accurate country information. So I’ve done many cases – big case in relation to a Kenyan rugby player called [Kenneth] Macharia last month – where the Home Office country report said Kenyans don’t suffer persecution. Luckily the tribunal judge disagreed.
In Sri Lanka, they only – they said no prosecutions since independence now except one prosecution. The evidence shows 18 prosecutions in 2018 of gay men, and now in October last year, anal examinations and vaginal examinations of those perceived as a trans man, of those perceived to be gay by the judicial officers in Sri Lanka. So it’s very important that the Home Office improve their decision making to ensure that queer refugees are treated with sensitivity and with decision makers who are aware of the full picture, of the narrative behind the claim.
Right, that’s interesting. And turning back to your own career, what obstacles did you face at the beginning of your career due to your ethnic origin, and how do you think things have changed since then?
It is quite interesting because, as I said, I’m a first generation immigrant. So I’m very proud of my immigrant narrative. And for me, one of the major issues is in relation to that – and that's why use “colour”, as a “person of colour” rather than “ethnic minority”. Because there is no way I can be invisible. Can I pass for a white person, a Caucasian person? So I’ve been very fortunate that I was very driven early on in relation to the areas of law I wanted to do, and I was successful in gaining pupillage in the first round of interviews when I applied.
But the main issue is to be able to go beyond the stereotype. So it’s very easy, especially – these were the late 90s, just when the Stephen Lawrence inquiry is happening – is that because of my kind of perseverance and drive and passion for the law, the Bar is a fantastic profession because [they?] recognize meritocracy, and those were passionate advocates.
So because I had successes in cases, that provided me with a lot of peer recognition, but for a lot of people of colour who went to the Bar at that time, definitely and still at this time, especially in the more traditional commercial chancery areas, there were a lot of obstacles.
I know Combar and a lot of the specialist Bar Association have done a lot of work, but the major issue is to be able to break outside the stereotype. And, you know, especially in the asylum field, as a person of colour, who's a Tamil, you know – the back story is basically, you know, my father bought my brother and I here in 78 to flee persecution because there were anti-Tamil riots in Sri Lanka in 77, 78.
My mother was already here on a visa as an anaesthetist doing some postgraduate work, so we were able to piggyback. So the point is, as a person of colour, as a Tamil working in the field, that brings up more – Sometimes stereotypes and a lack of understanding and appreciation of what it means to work in the field. So for me, I mean you know, that wonderful Francis Bacon quote on the – “knowledge is power”. So I’ve used my soft power throughout my career to be able to break down those barriers, to overcome those barriers, to be able to advocate for my clients to – in order that they succeed. So for me, it’s about breaking through the stereotypes, being visible, and using inaudible power.
What do you think needs to be done to improve the ethnic diversity and inclusion within the legal profession?
Wow. [Laughs.] That’s a report in itself. Well, as I said, visibility – more of us need to be visible. You know, I’m very fortunate to be you know – at the end of November last year to be [inaudible, at 33 Bedford Row] as head of Immigration and Public Law. I’m one of the founding members of an organisation called the Association of British Tamil lawyers, which is a very exciting project to be invited to be part of.
So it’s about ensuring that we create safe spaces for people of colour, who are in the legal profession, but also being able to signpost – I know when we look at the judiciary, it’s 2021. We have no single member of the Supreme Court who’s a person of colour.
You know, you look at comparable courts, such as the US, you know, there’s a history – and other countries as well. In the Court of Appeal – we only have one Court of Appeal judge, Lord Justice Singh, who is a person of colour in the Court of Appeal.
in the High Court we're starting to get a change it, you know, there’s Justice Choudhury, Justice Cheema-Grubb, you know, we’ve got about four, eight people of colour who are judges at the moment. And I know the Judicial Appointments Commission is doing a lot of work. But I think what we need to be able to look at is, you know, how much longer can we wait to have a representative judiciary, especially in London, where over 40%, 50% of the population are from, born or come from an ethnically different group rather than Caucasian.
So it – quotas is something which I’ve always lobbied for. And the argument against quotas is, I don’t know, an individual who is a person of colour may be told, Well, you’ve only got there because the colour of your skin.
And I think that’s a rather redundant narrative to be concerned about, because that’s already been happening. It’s already being said about other individuals in other positions, which is unmeritorious because these people have to have worked hard. They are clearly making a difference.
But within the legal profession we have – I believe in intersectionality. You know, intersectionality is a phrase created by Kimberlé Crenshaw who is a professor in New York, who talks about the fact that, you know, I just don't have one identity. So it’s very important to be able to understand the intersections about race, ethnicity, sexual identity, gender identity, that’s a huge area which has unfortunately been very misunderstood by those who wish to exclude trans nonbinary and gender-fluid people from our society or our spaces.
So, you know, disability – so it’s important that – to have a more representative legal profession, we need to – and we are – engaging with intersectionality and awareness of that. I'm very proud to be part of The Inner Temple’s Equality, Diversity and [Inclusivity] subcommittee to be able to do the work.
FreeBar is an organization I’ve been involved in since its foundation, so be able to go out there and be able to affect change, so, you know – quotas in some areas of our profession, dialogue, allyship – allyship is exceptionally important for those who have and possess privilege to be able to create spaces for those who aren’t always heard to be in that space, to be in that room to make the decision-making. So these are all different facets, which I think are starting to be deployed and should be stressed even more in relation to advancing the diversity and inclusiveness of our profession.
Thank you very much, Chelvan, that’s all been very interesting. I think people will be very interested to hear what you have to say so, thank you very much for your time.