‘Ignorance is the greatest threat to gay asylum-seekers’
The award-winning barrister S Chelvan takes his passion for lesbian, gay, bisexual, transgender and intersex (LGBTI) legal rights from the courtroom into the public sphere. Fiona Bawdon, freelance legal affairs journalist and founder of the Legal Aid Lawyer of the Year (LALY) awards, spoke to him.
Meshing the personal and the professional
To celebrate being named Legal Aid Barrister of the Year in June 2014, S Chelvan and a group of friends headed to a Soho restaurant, which had been a favourite of his for nigh on 20 years. Earlier that evening, Chelvan had been honoured by the LALY judges for his groundbreaking work for LGBTI asylum-seekers. Supporters of his nomination had ranged from the Liberal Democrat peer Lord Avebury to the veteran gay rights campaigner Peter Tatchell, who wrote: ‘Chelvan is the only lawyer I know who takes his passion for LGBT law from the courtroom into the public sphere.’ A gay client had written simply: ‘Mr Chelvan saved my life when he got me off the plane back to Uganda.’
There are eight countries around the world that prescribe the death penalty for consensual gay sex, Chelvan had told the LALY audience. ‘Ignorance is the biggest threat to gay people being sent back to their country of origin to be persecuted,’ he said. When he went on to mention that he and his husband planned to convert their civil partnership to a marriage as soon as they were able, he was loudly cheered.
When Chelvan’s group arrived at the restaurant soon afterwards, they were in high spirits. The trophy was proudly plonked in the middle of the table. ‘I’d had a few glasses of champagne1Editor’s note: being a legal aid event, the ‘champagne’ was, in fact, prosecco.
at the LALYs by then,’ says Chelvan. Over the years, he and his husband had come to know most of the restaurant staff, but that evening the waiter was someone they had not seen before.
Chelvan recalls: ‘The waiter looked at me and then at the trophy and said: “You’re a barrister aren’t you? You work with gay and lesbian asylum-seekers, don’t you?”’ Somewhat mystified, Chelvan confirmed that was correct. ‘He said, “You represented me and my younger brother ten years ago. The fact that I’m here now, it’s all down to you.”’
It took a few moments, but then Chelvan remembered the case from a decade earlier: the waiter, who was gay, had fled to the UK from Kosovo, bringing his dependent younger brother in tow. Chelvan had succeeded in winning him asylum in this country. ‘What is the probability that could happen? For him to be there, serving our table, on that night of all nights?’ It was, he says, quite a ‘spooky’ moment.
It was also a neat example of the meshing of personal and professional, the courtroom and the public sphere, which informs Chelvan’s work. There are many legal aid lawyers who seek to use the law as a tool for social change, but few for whom their work has quite such a personal charge.
Chelvan hails from a family of Sri Lankan Tamils (‘a persecuted community’), who came to the UK in the late 1970s. Although they did not enter as asylumseekers, many of their countrymen and women did, and it is Tamil cases from around this period that still form the foundation of current UK asylum law.
Chelvan came to the Bar (against the wishes of his doctor parents) ‘as a way of empowering myself as a gay man’. He was a schoolboy during the days of section 28 of the Local Government Act 1988 (which banned state schools from promoting the ‘acceptability of homosexuality’), and at university when the age of consent was still unequal. He may not have been at risk of torture, unlike many of his clients, but he does know what it is like to live in fear of arrest, ‘as does any gay man of my generation. So, when Strasbourg talks about even unenforced [discriminatory] legislation creating a climate of fear, I’ve been there!’
Chelvan came out ‘to myself’ at age 14, but was savvy enough to keep the information to himself. He remembers an RE teacher at his Catholic high school in Worthing describing homosexuality as a mental illness. However, he will be eternally grateful to the English teacher who was sensitive enough to introduce him to authors like Alice Walker and James Baldwin, who wrote about same-sex relationships with great passion and integrity. ‘I don’t know how, but she clearly knew about me.’ Nevertheless, he lived what he describes as ‘a double life’ for the next seven years, only coming out to his family at 21, by which time he was studying politics and law at Southampton University. His parents had expected him to marry a nice Tamil girl, and the news did not go down well.
S Chelvan receives his LALY award in June 2014.
‘I’ve got to do something about changing the law’
Chelvan was already a university activist, but the rift with his parents only spurred him on. ‘Once your family rejects you, you really don’t care what anyone else says.’ He had always been a performer and thrived on being the centre of attention. One of his earliest memories is standing on a chair at about age five, reciting the story of Goldilocks and the Three Bears ‘and being enthralled by not just speaking but seeing people listening to me’. Now, he threw himself into university politics. ‘I caused a lot of trouble there, challenging the ethos.’ Gay men and lesbians were banned from military service at the time, and Chelvan challenged Southampton’s decision to invite the Armed Forces to attend its careers fair, in apparent contravention of its own anti-discrimination policy. ‘They said, well, the discrimination is lawful. So I said, in which case there is something wrong with the law. I’ve got to do something about changing the law.’
For Chelvan, discrimination really is a black and white issue (pun intended), where there are no shades of grey. He and his brother were the only two non-white kids at their school, but even as a 14 year old struggling with the realisation he was attracted to people of his own gender, he knew that it was nonsense for it to be wrong to discriminate against him on the ground of race, but acceptable to do it because he was gay. ‘How can you be homophobic if you come from a minority group? For me, it just doesn’t make sense. You can’t talk about equality but only for certain groups. I am totally opposed to all discrimination.’
Arguments against equal marriage on the ground that same-sex couples should be satisfied with having the option of civil partnerships are akin to suggesting that he should drink from an apartheid-style ‘blacks-only’ water fountain, he says. ‘If you can accept that I’m black, you can accept that I’m gay. How can you discriminate against part of me, which is the same me that you’re saying deserves equality in other respects.’
Called to the Bar in 1999, Chelvan had stints at Doughty Street, Garden Court and Mitre House, before joining No5 Chambers (which, coincidentally, is home to the new Attorney-General, Jeremy Wright QC). He now has an international reputation for lecturing and training on asylum law, but prides himself on still doing First-tier Tribunal work. Over recent years, he has been involved in a string of key cases which have transformed the UK’s treatment of gay asylum-seekers. One of the most significant, HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31, 7 July 2010, overturned the ‘reasonable tolerability test,’ under which gay asylum-seekers could be sent back to countries known to persecute gay people, on the ground that they could keep themselves safe by the expedient of hiding their sexual orientation.
He describes his role as akin to that of a translator. ‘I say to my clients, I’m like an interpreter, but instead of interpreting your words from your mother tongue into English, I interpret your narrative into what we call the law.’
Now, the legal battleground has shifted away from asylum applicants being told to go home and just be discreet, to a climate where they are disbelieved and required to ‘prove’ they are gay. It is, says Chelvan, a reductive and demeaning process, where a person’s entire sexual orientation is distilled to specific sexual acts. It is a topic he is focusing on in his part-time PhD, where he has devised a new and already influential approach to questioning gay asylum-seekers, known as the DSSH (‘difference, stigma, shame and harm’) model, which moves away from fixating on ticking certain boxes to do with sexual conduct towards broader ideas of sexual identity.
He tells of one Sudanese client, where it was accepted that he was gay, but because he did not engage in anal sex, the court said that he could be returned safely as he was not technically breaching any of his country’s laws. It took nine years and umpteen court hearings before the man was finally granted asylum.
No wonder there are times when he still draws on one of his Hindu mother’s sayings: ‘God has three answers to any request: yes, no, and later’. ‘Being the eternal optimist I am, even when the court says no, I think, you obviously haven’t quite understood the concept, so I will come back. I’ve always used that as my litigation strategy.’
Despite making waves when he was at Southampton University, he retains strong links with his alma mater. Two of his former lecturers were at the LALYs to see him pick up his award, and he returns every year to tell students that if he – as a black, gay, first-generation migrant, with a hearing impairment – can carve out a successful career at the Bar, they can too. ‘I didn’t have a role model, but I’m proud of the fact I’ve grown to be a role model – I don’t see any point in being coy about that.’
Nor is he above dishing out the odd bit of dating advice: any would-be barrister should forget about weekends off or uninterrupted holidays, and will need a very understanding partner (he and his husband have been together for 13 years). ‘I always tell them, if you don’t have a boyfriend or girlfriend by the time of pupillage, get one. Because if they survive pupillage, they are there for life.’