Legal Hackette Lunches with S Chelvan

Over pink champagne, fishcakes and shepherds pie at Inner Temple’s Pagasus Bar, the highest placed lawyer in the Indy’s The Independent on Sunday newpaper’s 2015 Rainbow List, LGBTI (lesbian, gay, bisexual, trans, intersex) activist and poster boy for the Joint Council for the Welfare of Immigrant’s ‘I’m an Immigrant’ campaign discusses the launch of a new group to promote LGBT+ issues at the bar, the need for greater visibility of gay judges and why heterosexual couples should be allowed to enter civil partnership.

High res Rainbowlist picIn a profession that in the eyes of many remains synonymous with pale, stale, conservative, public school chaps in dull suits, Chelvan stands out from the pack – loud and proud.

‘I will wear colourful shirts because it suits my complexion rather than dusky blue’, he states.

It is not just a sense of style that makes Chelvan stand out. In trendy parlance, he ‘self-identifies’ as a gay, black (international classification for non-white) Hindu, with a hearing difficulty – and if that doesn’t tick enough diversity boxes, he grew up in Worthing.

But first — an explanation of his name – his chamber’s website lists him as S Chelvan, but, as he explains, Chelvan is his ‘given’ name used to represent his last name, in accordance with Sri Lankan Tamil tradition. It is prefixed by the ‘S’, which is the first letter of his father’s last name.

He shares a modest room with two colleagues at No5 Chambers, tucked away off Fleet Street, far from its Birmingham ‘mother ship’.

Chelvan’s corner is super-organised, with bookcases bearing neatly filed cases, ordered on ascending shelves according to the tribunal level that each has reached.

Behind his desk a sketch by court artist Isobel Williams, done during his first case at the Supreme Court, AA (Somalia) v Entry Clearance Officer (Addis Ababa).  He was led by Manjit Gill QC in a case that challenged the lack of protection by the immigration rules in family reunion cases to cover non-biological children adopted by wider family members under the Islamic custom of kafala, often after a child has been orphaned.

Chelvan has developed an international reputation in asylum and immigration law, in particular in asylum claims based on sexual or gender identity. In many countries, he bemoans, ‘it is still dangerous to be gay’.

There are 80 countries in which consensual same-sex activity is a criminal offence, and it remains punishable by death in five countries.

As for the UK’s attitude to those fleeing persecution because of their sexual orientation, he recalls ‘the dark days of gay asylum law were 2004-10’. The Home Office operated a policy of ‘reasonable tolerable discretion’.

Where it accepted claimants were gay and would face persecution or death if returned to their home countries, it suggested they could avoid such threats by voluntarily exercising discretion and concealing their sexuality.

‘They could only get asylum if they proved that it was not reasonably tolerable to do so.’

A landmark judgment in July 2010 in HT (Cameroon) and HJ (Iran),  in the cases of two gay men, the Supreme Court unanimously ruled that the policy was wrong.

‘No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution,’ said Lord Rodger, delivering the lead judgment.

From there, the Home Office’s policy moved from one of discretion to disbelief, explains Chelvan. ‘Claimants would be asked degrading tick-box questions to prove their sexual orientation – such as did you wear a condom or did you ejaculate’.

The types of humiliating questions were revealed in a leaked Home Office document in 2014 in The Guardian.

To improve the process for determining the credibility of LGBTI asylum seekers and to make the interviews less like an interrogation, less judgmental and less intrusive, Chelvan developed a model of open-ended, non-adversarial questioning.

Its premise, is that there are several characteristics that are almost universal among LGBTI people that they will be able articulate – difference, stigma, shame and harm (DSSH).

He explains: ‘You realise you are different, you realise that difference sets you apart from the rest of society, which brings stigma and shame. And what makes you a refugee is that you face harm because of that difference’.

His model was endorsed by the UNHCR in 2012 and has been adopted around the world, which, says its creator, is ‘mind-boggling’.

‘The bar gives you the opportunity to do that, to change things – you are not just a litigator – you are taking a lead’.

Despite the strides made over recent years, says Chelvan, there is much still to do. To that end, he sits on two Home Office committees, advising on policy and helping ensure it complies with its international obligations and keeps in step with legal and other developments – although, he notes, it does not always heed his advice.

Immigration and asylum, he says, is ‘such a politicised area of law’ and the Home Office has a perpetual fear that people will abuse the system and too many article 8 – the right to family life — claims will be allowed.

The current moves to codify article 8, designed to restrict its application, he says, will serve only to increase the numbers of people forced to go underground and live in servitude, as the government is trumpeting its Modern Slavery Act.

The expanding lexicon of sexual identity, emerging in the population at large, is reflected in new asylum cases – moving from lesbian and gay to bisexual and, more recently, to address trans and intersex claims based on gender identity.

The latest buzz acronym – LGBTIQA – has the additions, he explains, of queer (Q) – either another word for gay, or questioning – and straight allies (A) – those who support and promote equal rights for the others.

If the world can still be an unsafe place to be an out LGBTI-er, what of the bar?

LGBTI campaigning charity Stonewall has just published its 12th Workplace Equality Index, which features a dozen law firms in its top 100 and at 13th, Simmons & Simmons, highlighted as a ‘Star Performer’ in recognition of its long-standing commitment to creating workplace equality.

Chelvan has been out since university and overtly so in practice – in his applications to chambers he was frank about his reasons for coming to the bar – ‘to change the law in relation to gay equality issues’.

Despite efforts made by groups including the InterLaw Diversity Forum and the Bar Lesbian And Gay Group, he says, prejudice remains and many do not feel safe to come out.

‘Only the other day I heard of someone taken on at a really right-on set, who only felt able to come out after completing pupillage,’ he says. ‘The bar should have been a safe place for them to feel able to be out from the start.’

He understands that for some, sexuality is private, but for others, ‘it’s not about coming out and making a statement that you are gay, but being able to tell your colleagues honestly what you did over the weekend and correctly identify the gender of your partner’.

‘We have an urgent crisis in relation to dealing with diversity, not just in relation to LGBT+ issues,’ he warns, citing the fact that England and Wales appointed only its second South Asian minority ethnic High Court judge last year.

‘We need to do something pretty quickly. I’m not patient enough to wait another 50 years – there are candidates with merit, but because of the message that is being sent out, they are not applying’.

To help hasten the change, Chelvan is involved in a new project to promote LGBT+ equality at the bar.

The forum – FreeBar – initiated by Matrix, Hardwicke, No5 Chambers, 5 Paper Buildings, 3 Hare Court and Stonewall, aims to work with chambers, employers and individuals, be they LGBT+ or straight allies, to promote inclusion and best practice and to celebrate LGBT+ role models and allies.

Its guiding principle is Stonewall’s tag line ‘acceptance without exception’.

‘We aim to work alongside other groups to ensure LGBT+ issues are at the forefront and people feel safe to be who they are in the workplace without discrimination or prejudice,’ says Chelvan.

The group officially launches on 17 February at an event hosted by City firm Travers Smith. For information about the forum and the launch, email info@freebar.co.uk.

Would he like to be a judge?

He can only think of two ‘out’ gay senior judges – Lord Justice Adrian Fulford and the Chancellor of the High Court, Sir Terence Etherton — and says: ‘Things would have to change in the judiciary before I’d feel it was a safe space to do that.’

He adds: ‘There are countless other people ahead of the queue who aren’t applying or getting selected. I want to see a change happening in visibility before I would even consider applying.’

In any event, he gets a ‘buzz’ from the work he is doing now – ‘advocating on behalf of your client’ – whether before the first tier tribunal, Court of Appeal or Supreme Court.

‘It’s not a job, it’s a vocation’, he says, noting that there are two types of barrister – ‘the first instance barrister, who just wants to go to court and win the case, and the appellate barrister, who wants to change the law.

‘I’m not here just to apply the law; I’m here to change it, to empower my clients and a larger pool of people.’

But changing the law can often takes years. ‘My mother used to tell me “God says three things – yes, no or later.” I’ve taken that as my litigation strategy. When the Court of Appeal says “no”, I think “ok, we’ll come back later”.

‘And I’ve found that to work. Sometimes you will lose, but at least you’ve put a mark in the sand that you can come back to later’.

Chelvan views his role as his clients’ legal interpreter. ‘Instead of translating their words from their mother tongue to English, I interpret the words from their narrative to the law.’

A cerebral chap, he regards the bar as being about ‘intellectual curiosity’.

‘One of my favourite philosophers, Francis Bacon, said “knowledge is power” and that applies to the law. If you know your case inside out it really does empower you.

‘I find the weakest point in my case and so long as I can address that, I can build my argument.’

Among the altruism and desire to change the world, inside the flamboyantly dressed advocate is, a bit of a show off.

‘One of my earliest memories is being asked to recite Goldilocks and the Three Bears when I was five years old at primary school.

What I loved about it was not just telling the story, but seeing my friends watching me and listening – and that’s the thrill you get as an advocate. It’s not just speaking; it’s the fact that people listen to you.’

‘I’m living the dream; this is my dream job,’ he says, quickly adding ‘though not the money; the money is horrific.’

Predominantly a legal aid lawyer, he says: ‘Every time there are legal aid cuts I worry about money and about my age debt and paying the bills, but I can’t think of doing anything else.’

He has started doing public access work, taking LGBTI asylum claims from application. ‘That’s been a wonderful insight about the part of the process I hadn’t known about. And it pays, thank God.

‘But, I’m still a jobbing legal aid lawyer and will continue to be a legal aid lawyer because the majority of my clients don’t have any money – they have lost everything’.

He and his junior are even taking one Court of Appeal case on a conditional fee arrangement.

Hailing the importance of the solicitor-barrister relationship, he says: ‘I’m very lucky to work with solicitors who, even with ridiculous slashing of legal aid, will go above and beyond the call of duty for their clients’.

During his pupillage, which he completed at Doughty Street and Garden Court, he went to Harvard to do a masters degree as a Kennedy Memorial Trust Scholar, after which US law firm opportunities arose.

He rejected the possibility of a $120,000-a-year gig to come back to the UK and be a legal aid lawyer.

He has no regrets about the decision. ‘I do the same hours as my friends across the pond, but I don’t have two apartments overlooking Battery Park’.

On the flip side: ‘My friends in the States are not doing work that they are passionate about and they don’t get cards saying “thank you for saving my life” – which is priceless’.

One of the reasons he his passionate about his clients cases is because he has experienced rejection and ostracism as a result of his sexuality, growing up knowing that he was different, but not being able to express it.

‘I realised I was different when I was a child. When my brother was seven, he had a birthday cake in the shape of a football pitch. When I was seven I had a cake in the shape of a number seven decorated with pale pistachio green icing with pink roses.

‘When he was nine, he had an R2D2 cake; I had a cake with pale blue icing and marzipan roses and butterflies. Did anyone think I was gay? No, but I wasn’t conforming to the hetero-normal narrative. Years before sexual awakening you realise you are different.’

Chelvan says he realised his sexual identity at 14. During his school years section 28 of the Local Government Act 1988 banned schools promoting homosexuality or teaching the ‘acceptability of homosexuality as a pretended family relationship’. Indeed, it was not repealed in England and Wales until November 2003.

‘I didn’t know about that law, but I knew there was something that I couldn’t speak to my English teacher about, but she guessed and recommended books for me, like those by Alice Walker. It was the first time I’d ever read about a same sex relationship and I was able to identify with someone.’

He led a ‘traumatic double life’, outwardly conforming to what was expected of him, but knowing inside he was different from that outward impression.

He came out to his family at 21. The following day his mother gave him an ultimatum – be celibate for five years and then they’d marry me off to some girl or leave the home.

‘So, I was kicked out of home. My stuff was sent in dustbin bags to my halls of residence and I received a letter via the family solicitors saying I was formally disowned.’

It was, he recalls, a ‘dark and difficult’ part of his life. But he had already come out to his friends at Southampton University, who were hugely supportive.

‘As Armistead Maupin says, you have two types of family – your biological family and your logical family. Thankfully, I definitely have my logical family who accept me and have always been there and who I love dearly’.

During his time at university, the age of consent for homosexuals was still 21, gay men and lesbians were banned from serving in the armed forces and there were no anti-discrimination laws.

‘I knew I wanted to do something to change my world.’ He even tried to get the armed forces excluded from the university’s careers fair.

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Born in Sri Lanka, Chelvan came to the UK when he was four. Being the eldest son, he was expected to follow his mother into the medical profession. But after doing work experience with a barrister when he was 14 he told his parents he wanted to become a barrister.

They suggested he qualify as a doctor and then switch to law. Ultimately he gained a first class degree politics and law and studied for the bar with a scholarship from Inner Temple.

Chelvan has achieved much success – he was voted barrister of the year in 2014 in the Legal Aid Practitioners’ Group’s Legal Aid Lawyer of the year awards and went straight in at position 43 out of the top 101 influential LGBTI individuals in the UK in the Independent’s Rainbow List (formerly the Pink List) last year.

At 41, he seems in a place where he is completely assured and comfortable in his skin. Such openness and honesty is unusual and appears to embolden and empower him.

Some may mistake his assuredness and tenacious advocacy for arrogance and he accepts: ‘I’m marmite – some members of the bar are not attracted to my personality and react negatively to me being overt and being who I am’.

But he is quick to pay tribute to those who have helped him, particularly his chambers and his ‘inner circle’, not least his husband, Mark, whom he describes as the ‘most wonderful man on the planet’.

They formed a civil partnership in 2006, and converted it to a marriage last year – both ceremonies taking place at Inner Temple –wearing Neru jackets embroidered with peacock feathers for the first (in Hinduism, peacocks symbolise immortality) and suits for the latter.

The extension of marriage to same-sex couples, ‘gave me goose bumps’ and he, says, he could not understand the opposition to it. ‘No one was forcing a straight person to get married to a person of the same sex. Just because I would have equality doesn’t discriminate against you’.

Making the upgrade was important to him as it gave him equality with heterosexual couples and removed the sense of ‘disenfranchisement’ he had felt.

‘When someone asks if we are married, we no long have to qualify the answer by saying “technically it’s a civil partnership”’.

He approves of extending civil partnerships to non-gay couples. ‘Equality is equality; you can’t redefine equality.’

What else does he want to do?

‘I want to have kids. I knew I wanted to be a dad before I knew I was gay. Mark and I hope to have kids one day through surrogacy – one fathering each. He will make the most amazing co-parent.’

Professionally, some might consider that a black silk jacket would be a deserved addition to his wardrobe.

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