Fleeing Homophobia

Sexual Orientation, Gender Identity and Asylum

Thomas Spijkerboer, Thomas Spijkerboer

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134098422
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho migratorio

Each year, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers apply for asylum in EU Member States.This book considers the position of LGBTI asylum seekers in European asylum law. Developing an encompassing approach to the topic, the book identifies and analyzes the main legal issues arising in relation to LGBTI people seeking asylum including: the underestimation of the relevance of criminalization of sexual orientation as well as the large scale violence against trans people in countries of origin by some European states; the requirement to seek State protection against violence even when they originate from countries where sexual orientation or gender identity is criminalized, or where the authorities are homophobic; the particular hurdles faced during credibility assessment on account of persisting stereotypes; and queer families and refugee law.

The book gives a state of the art overview of law in Europe, both at the level of European legislation and at the level of Member State practice. While being largely focused on Europe, the book also takes into account asylum decisions from Australia, New Zealand, Canada, and the United States and is of relevance internationally, offering analysis of issues which are not specific to particular legal systems.

1 Introduction

Fleeing homophobia, asylum claims related to sexual orientation and gender identity in Europe

Sabine Jansen*

Thousands of lesbian, gay, bisexual, transgender and intersex¹ (LGBTI) asylum seekers apply for asylum in Europe each year.² In principle they can find safety in Europe as recognised refugees or through other forms of international protection. According to Article 1-A of the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) a refugee is a person with a well-founded fear of being persecuted on account of one of the five persecution grounds: race, religion, nationality, membership of a particular social group and political opinion. For a long time sexual orientation and gender identity³ were not considered as relevant persecution grounds, but this major stumbling block for LGBTI asylum seekers has gradually been taken away.

In 1981, the Dutch Raad van State (Council of State) was the first court to recognise sexual orientation as a relevant persecution ground.⁴ This development has culminated in the 2004 EU Qualification Directive (Council Directive 2004/83/EC) which provides in Article 10 that ‘a particular social group might include a group based on a common characteristic of sexual orientation’.^{5 6} In 2011, ‘gender identity’ was added into Article 10 of the EU Qualification Directive and this way it has also been recognised as a relevant persecution ground.⁷

Although this constitutes an important step forward, both symbolically (see on the importance of symbolical change, Jenni Millbank’s contribution to this volume) as well as practically (many LGBTI asylum applicants have been granted protection as a refugee), the acknowledgement of sexual orientation and gender identity as a persecution ground has only created the condition for protecting persecuted LGBTI asylum applicants. Many legal problems still remain to be addressed: What is the relevance of laws in the country of origin criminalising consensual same sex sexual acts or the expression of non-standard sexual or gender identities? Can asylum applicants be required to return to their country of origin and conceal their sexual orientation or gender identity in order not to ‘provoke’ violence and discrimination? Can asylum authorities expect LGBTI asylum seekers to seek protection from homo-or transphobic state authorities in the country of origin? How to assess claims of applicants who did not disclose their sexual orientation or gender identity right away? (See on the invisibility of LGBTI refugee families in family reunification law, the contribution of Petra Sußner to this volume.) Apart from these legal issues, there is a host of difficulties in LGBTI asylum practice related to their non-standard sexual or gender identity. Credibility assessment seems to be riddled with stereotypes. In reception facilities LGBTI applicants face specific hazards. Human rights information about LGBTIs in countries of origin is not always available, which makes the assessment of LGBTI asylum claims a formidable task.

In this chapter I present the main outcomes of the Fleeing Homophobia research project (Jansen and Spijkerboer 2011).⁸ This was the first comprehensive study ever on the handling of LGBTI asylum claims in Europe. It contributed to closing the existing research gap, identified by the European Union Agency for Fundamental Rights (2009: 129) by providing a more extensive and qualitative research with data from lawyers, governments, academics and non-governmental organisations (NGOs) on policy and practice concerning LGBTI asylum seekers.⁹

A general research finding is that considerable differences occur in the way in which European States deal with the specific problems in LGBTI cases. From a point of view of European harmonisation this divergence is problematic. For example the Dublin system presumes a common European standard, which we can conclude does not exist. If the interpretation and application of asylum law in one or more European States is below the level required by European law, this is not only in itself a violation of European law, but this may also make the transfer of asylum seekers to such States a violation of European law.¹⁰ Also in LGBTI cases, divergence between Member States may interfere with transfer of an asylum seeker to the Member State which is responsible for the examination of the claim.¹¹

A second general conclusion is that European State practice is on a number of points below the standards required by international and European human rights and refugee law. Furthermore, the fundamental character of the relevant human rights for LGBTI individuals is frequently denied in the asylum practice of European States.

1.1 Discretion

In large parts of the world people feel compelled to hide or conceal their sexual orientation or gender identity. They stay ‘in the closet’, because they fear harm from others: their family members, friends, neighbours, society in general or state authorities. The reactions to disclosure (‘coming out’) can take the form of abuse, discrimination, forced marriage, torture, rape, murder, etc.

LGBTI people who flee their country and apply for international protection in Europe are still often rejected, with the reasoning that they have nothing to fear in their country of origin as long as they remain ‘discreet’. They are explicitly or implicitly required to conceal or hide their sexual orientation or gender identity in order to avoid persecution. In fact, they are sent back into the closet.

We found examples of this practice in the majority of European States.¹² For instance in Switzerland the asylum application of a gay man from Iran was rejected by the Federal Administrative Court, stating that in practice homosexuality is tolerated by the Iranian authorities, ‘when it is not publicly exposed in a way which could be offensive’.¹³ In a West-African lesbian’s case the Hungarian authority stated: ‘Even if the applicant was a lesbian, if she would not make her lesbianism public, she would not have to fear the consequences of her behaviour’. The Bulgarian expert reported a common opinion apparently shared by the State Agency for Refugees’ officials, that it is better if a gay man returns to his country of origin and tries to live a more discreet life or even to make an attempt to ‘change’ his sexual orientation. In cases of LGBTI applicants from countries where same sex sexual acts are a criminal offence it is sometimes stated: the authorities are not aware of your sexual orientation, so you could go back.¹⁴ These cases implicitly rely on discretion reasoning, also when this is not explicitly stated.

Since the early 2000s, several jurisdictions outside Europe have rejected the ‘discretion requirement’.¹⁵ In 2003, the High Court of Australia held: ‘It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention’. In 2004, the New Zealand Refugee Status Appeals Authority ruled: ‘By requiring the refugee applicant to abandon a core right the refugee decision maker is requiring of the refugee claimant the same submissive and compliant behaviour, the same denial of a fundamental human right, which the agent of persecution in the country of origin seeks to achieve by persecutory conduct’.¹⁶ The UN High Commissioner for Refugees (UNHCR) Guidance Note states in this respect: ‘There is no duty to be discreet or to take certain steps to avoid persecution, such as living a life of isolation, or refraining from having intimate relationships’. In other words: ‘a hidden right is not a right’ (UNHCR 2008: paras 25–26).

In some EU countries the requirement has been abandoned, although it sometimes reappears in other forms. The idea that LGBTI persons could or should conceal their sexual orientation or gender identity proves to be very persistent.

Since 2007, the Dutch policy guidelines explicitly state that ‘homosexual people are not expected to hide their sexual orientation upon return in the country of origin’ (Aliens Circular (Netherlands) C2/2.10.2). However, the Dutch Immigration and Naturalisation Service (IND), supported by the highest Administrative Court, the Council of State, neglects this policy and still tells people to go home and hide in the closet (Jansen 2012). In fact, three cases in which the Dutch asylum authorities relied on discretion reasoning, in seeming contradiction with their own policy, have led to preliminary questions (see below).

In July 2010, the United Kingdom rejected the discretion requirement through abolishing its previously applied UK manifestation, the ‘reasonable tolerability’ test, which held that it could be reasonably tolerable to require discretion, with the landmark judgment of the Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (HJ/HT) (UK Supreme Court, 7 July 2010). The Lords explain what the abolishment of discretion would mean for everyday life, to cite Lord Rodger:

In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.

(HJ/HT at [78])

Scandinavian countries followed the approach of the UK Supreme Court: Sweden by issuing policy rules (Rättschefens rättsliga 2011) Finland and Norway through a judgment of their respective Supreme Courts (Korkein Hallinto-Oikeus 13 January 2012; Norges Høyesterett – Dom 29 March 2012). A UK Asylum Instruction also made the judgment applicable to gender identity claims (UK Border Agency 2011b). In the contributions of Jenni Millbank, Janna Weβels and Hemme Battjes to this volume, the HJ/HT judgment is dealt with in detail.

The HJ/HT judgment has led to confusion among asylum authorities and academics. On the one hand, most agree that one cannot expect someone to hide his or her protected characteristic in order to prevent persecution. On the other hand, there is no communis opinio on questions like: How far should this go? Are there any limits? Could we expect LGBTI people to hide a little bit or to behave with some restraint? Should we distinguish between private and public conduct? The HJ/HT judgment has been criticised from two different angles. Hathaway and Pobjoy argue that the judgment leads to the protection of trivial behaviour, like drinking exotically coloured cocktails. They argue that a distinction should be made between protected and unprotected activities in the refugee context. Only expressions of sexual identity that belong to the core of sexual orientation, and that may trigger persecution, are to lead to recognition as a refugee (Hathaway and Pobjoy 2012: 515).¹⁷ While this criticism holds that the UK Supreme Court went too far in granting refugee protection, Janna Weβels to the contrary argues that the Supreme Court went not far enough, because it has in fact not abolished discretion reasoning. In Weβels’ analysis in this volume, the new test proposed in the judgment is still constructed around discretion, as is demonstrated by the distinction between open and discreet gay and lesbian conduct, and the distinction between different types of discretion: out of fear for persecution on the one hand, and out of family or societal pressure on the other hand. In the eyes of the Lords, the latter should not lead to asylum. Weβels criticises the idea that lesbians and gays in a persecutory environment hide their sexual orientation out of ‘free choice’, which has also been labelled as ‘voluntary’ or – even – ‘natural’ discretion.¹⁸

Possibly, the Court of Justice of the European Union (CJEU) will provide guidance in the near future. Previously, the German Oberverwaltungsgericht (High Administrative Court) of Nordrhein-Westfalen attempted to find this guidance by submitting preliminary questions to the CJEU in the case of an Iranian gay asylum seeker. However, after the full name of the applicant was published by the CJEU, the questions were withdrawn and the applicant was granted refugee status.¹⁹ The German Bundesverwaltungsgericht (Federal Administrative Court) was more successful: in a case of two Pakistani Ahmadiyyas preliminary questions were issued at the CJEU. In these cases the central question was whether the applicants could ‘reasonably be expected to abstain from certain religious practices’.²⁰ The CJEU has not judged this case yet, but the advocate-general concludes that:

it seems to be contrary to the respect due to human dignity enshrined in Article 1 of the Charter [of Fundamental Rights of the European Union]. By requiring the asylum-seeker to conceal, amend or forego the public demonstration of his faith, we are asking him to change what is a fundamental element of his identity, that is to say, in a certain sense to deny himself. However, no one has the right to require that. (…) we cannot reasonably expect an asylum-seeker to forego manifesting his faith or to conceal any other constituent element of his identity to avoid persecution without putting at risk the rights that the Directive aims to protect and the objectives it seeks to pursue.

(Advocate-General Bot 2012, Federal Republic of Germany v Y and Z; emphasis added)

Although the fundamental right at stake in this case is freedom of religion, by the reference the advocate-general makes to sexual orientation and to identity,²¹ there is no doubt that this reasoning also applies to sexual orientation, as well as to gender identity.

Recently, the Dutch Council of State submitted preliminary questions to the CJEU, specifically on sexual orientation, in the cases of three gay men from Senegal, Sierra Leone and Uganda (CJEU – Reference for a preliminary ruling from the Raad van State lodged on 27 April 2012 – Minister voor Immigratie ...