‘Manufacturing Vulnerability’ in UK Asylum: Shifting Standards of Proof and Sexual Diversity

The Nationality and Borders Act (NABA) 2022 changed the application of the standard of proof in asylum claims. Previously, the standard of proof applied to the whole claim was ‘to a reasonable degree of likelihood’. Following NABA for claims lodged on or after June 28 2022, the new standard applied utilises a two-pronged approach: The decision-maker must first decide on a ‘balance of probabilities’ whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Next, the decision-maker must determine whether ‘to a reasonable degree of likelihood’ that the claimant would be persecuted if returned to their country of nationality. The shift in the standard of proof reverts back to pre-Karanakaran where it had been decided that one standard should be used holistically. The two-pronged approach will inevitably cause the same confusions it did prior to Karanakaran as well as have a particularly disproportionate impact on people who are basing their asylum claims on their sexual orientation. This article investigates this disproportionate impact and argues that the shift in the standard of proof manufactures vulnerability and is a missed opportunity to rectify issues already existing with the standard of proof.