18/19, ELSA Competition Winner, E.Grant, ‘Critically Evaluate the Extent to which the Refugee Legal Framework Can (or could) Provide Sufficient Protection to LGBTQI Asylum Seekers’

Author: Ellen Grant

“…. the term “refugee” shall apply to any person who….owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…” 1951 UN Refugee Convention Article 1A

Taking the definition of the term “refugee” in the 1951 UN Refugee Convention Article 1A as your starting point, critically evaluate the extent to which the refugee legal framework (including the interplay of relevant international, European and national instruments, measures and processes) can (or could) provide sufficient protection to LGBTQI asylum seekers

____________________________________________________________________________________________

The two key pieces of international legislation governing the protection of refugees are the UN Refugee Convention (the Convention) and its 1967 Protocol. Within the EU, there is a harmonised subsidiary protection policy implemented by the Qualification Directive,[1] which governs the standards that should be applied to persons in need of protection regardless of which Member State asylum is claimed in. Despite extensive jurisprudence from these two frameworks of protection, this essay will argue that LGBTQI asylum seekers still face many obstacles in seeking refugee status, resulting in insufficient protection.

When making a claim based on sexual orientation or gender identity, the Convention ground generally relied on is membership of a particular social group (PSG). This may be relied on independently, or concurrently alongside one of the other five grounds. As the only ground undefined by the Convention, PSG remains the category with the least clarity. Its definition has consequently been developed through case law, both internationally and domestically, and UNCHR guidelines.

The Qualification Directive is complementary to the Convention, and serves as interpretative guidance.[2] It only applies to third-country nationals, so cannot be relied on by EU citizens. Before its enactment, the broad language of the Convention had led to varying applications of its definition throughout Member States. Through its own definitions the Directive seeks to ensure a uniform interpretation of the Convention throughout the EU. Importantly, it holds that ‘depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation.’[3] This is significant in that it is more explicit than the ambiguous Convention.

There are two main approaches to establishing whether a PSG exists which have dominated common law jurisprudence.[4] The first of these is known as either the protected characteristic approach, or the immutability principle, which was introduced in Matters of Acosta,[5] and further developed in Canada (Attorney-General) v Ward.[6] This principle holds that the group must share a characteristic that is so entrenched, that it ‘is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed’.[7] By contrast, in Applicant A v. Minister for Immigration and Ethnic Affairs,[8] the social perception test was formulated. This approach holds that the group must be united by a characteristic that makes it ‘a cognisable group within their society’,[9] meaning that they have to be noticeably distinct from the mainstream population. The social position of the group must be assessed according to the society where the fear of persecution stems from. Thus, Western beliefs should not be imposed onto the situation. Crucially, no matter which interpretative process is adopted, the defining characteristic cannot be the shared fear of persecution.[10]

The UNCHR expressed concern that these differing approaches presented an opportunity for gaps in protection to appear. In 2002, it sought to unify the two by presenting one overarching standard to be applied, ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’[11] It has been argued that rather than introducing a sense of coherence, this has resulted in a cumulative approach being applied, whereby an applicant must satisfy both the immutability principle and the social perception test in order to claim protection on social group grounds.[12] In fact, this cumulative approach was approved by the Court of European Justice (CJEU) in X, Y and Z.[13] This makes it significantly harder for LGBTQI asylum seekers within the EU to establish membership of a PSG by requiring them to demonstrate both an innate characteristic and a distinct identity that separates them from society around them.

The social perception approach is one of the biggest impediments to LGBTQI refugees seeking to establish membership of a PSG. Not only must a group share an identifiable characteristic, and that characteristic must distinguish them from the rest of society, the members must also demonstrate this through their outward behaviour. This has been branded as the ‘discretion requirement’, meaning that if it is possible for the individual to hide their sexual orientation or gender identity, then they can avoid persecution and thus do not have a well-founded fear. This is in direct contradiction to Article 10(1)(d) of the Qualification Directive, which says that ‘a group shall be considered to form a particular social group where, in particular, the members of that group share a characteristic that is so fundamental to identity that a person should not be forced to renounce it’. The discretion requirement is extremely problematic because of the onus it puts on the claimant to protect themselves, and to hide a quintessential part of their being. Such a burden is rarely put on individuals seeking protection on the grounds of political or religious opinion, who could similarly be required to hide their beliefs.

Nevertheless, this damagingly stereotypical assessment continues to be applied. It is often used in the cases of gay men living in countries in which homosexuality is illegal, but tolerated to an extent. For example, one Belgian case found that so long as the claimant, an Iranian gay man, ‘plays it by the rules’ and lived his ‘sexuality in private’, then he would not suffer persecution and thus could not be granted refugee status on this ground.[14] In France, this requirement has been reversed, so that individuals must openly display their sexuality if they wish to seek asylum. If the person’s sexuality or gender identity is not explicitly obvious, then they cannot be perceived as a member of a group separate from the rest of society.[15] This places individuals in a paradoxical dilemma; declare themselves as LGBTQI and risk suffering the persecution that they fear, or disguise their sexual orientation or gender identity to avoid that persecution, and lose the right to protection under international law.

The detrimental effect of such reasoning was highlighted and challenged in the UK case of HT (Iran) and HJ (Cameroon).[16] Lord Rodger reiterated that the rationale behind the Convention is to offer protection from prosecution where the home state has failed to do so.[17] Further, he contested the previously held belief that it may be ‘reasonably tolerable’ for an individual to suppress their sexuality in order to avoid persecution.[18] To require a person to do so infringes their fundamental right to be who they are and fulfils the goal which the persecutor set out to achieve. The CJEU has since confirmed that within Member States at least, no such requirement should be applied.[19] This was a promising advancement which seemed to remove one of the barriers facing LGBTQI individuals seeking protection.

This progressive approach does not seem to have trickled down to the lower UK courts, however. In the recent case of OO (Gay Men) Algeria CG,[20] it was found that although homosexuality is illegal in Algeria, prosecution is rare, and so any risk faced by the applicant was not serious enough to constitute persecution.[21] This is despite Article 4(3)(a) of the Directive, which provides that criminalisation in the country from which the applicant is fleeing should equate to a well-founded fear of persecution. It was concluded that the claimant had concealed his sexuality to avoid bringing shame on his family, which would not give rise to international protection. Worryingly, Judge Southern took it upon himself to suggest that ‘an Algerian man who has a settled preference for same sex relationships may well continue to entertain doubts as to his sexuality and not to regard himself as a gay man, in any event.’[22] The assessment undertaken by the Tribunal should revolve around whether the applicant is perceived to be a member of a PSG, not whether they actually are. Further, this perpetuates a dangerous perception that sexual orientation is a phase, which applicants can change if they try hard enough, and seems to stem from the applicant’s self-identification as a gay or bisexual man.

Establishing that a PSG can constitute individuals of a certain sexual orientation or identity is only the first hurdle in an asylum claim, as a well-founded fear of persecution must also be proven. It is this term that is at the core of the definition.[23] This involves both a subjective and an objective component. Fear is a subjective emotion, so part of the assessment will depend on the applicant’s own statements of events. Since so much of the assessment relies on the applicant’s own testimony, credibility is a central issue,[24] but it is not always determinative. It is understood that individuals may be so desperate for asylum that they fabricate or embellish their stories. Nevertheless, an application based on untruths may still be successful through the objective part of the inquiry. A lesbian applicant may exaggerate the violence they were subjected to in their home country, but if evidence shows that lesbians are in fact at risk of social cleansing by the government in that country, then refugee status may still be granted. As such, some knowledge or evidence of the situation in the country is required, both to contextualise the claim and perhaps bolster or lessen the plausibility of the applicant’s story.

The case of OO[25] is a recent demonstration of how doubts as to an applicant’s true sexual orientation can be fatal to a claim. The UNCHR has advised that an asylum seeker’s self-identification should be the starting point, and if no proof can be provided to substantiate this, then the decision maker must rely on the applicant’s testimony.[26] This will inevitably lead to an assessment of credibility, which can be complicated for sexual orientation claims because sexuality is internal and may not be visible. Moreover, individuals may be so accustomed to repressing their inner identity that to eloquently articulate themselves to figures of authority will be extremely difficult. An institutionalised feeling of shame may also prevent them from disclosing all facts that are pertinent to their claim.

These difficulties are aggravated when decision makers are misled by stereotypes and bias. LGBTQI individuals may have never been in a same-sex relationship, or openly expressed their orientation or gender identity. They may have presented a ‘heterosexual narrative’[27] by marrying and having children, in order to protect themselves from persecution. The CJEU has confirmed that applicants cannot be interrogated on their sexual activity as this infringes Article 7 of the EU Charter of Fundamental Rights,[28] but sexual practices nevertheless still influence credibility assessments.[29] Whether these factors are detrimental to a claim ultimately depends on the decision maker, their knowledge of the realities of the country of origin, and any prejudices that they may have. Analysis of case law from New Zealand, Australia, the UK and Canada demonstrates that where an applicant’s sexual orientation is disbelieved, their claim is significantly more likely to fail.[30]

Whilst credibility plays a key part in establishing whether there is a ‘well-founded fear’, the objective element of this assessment can be equally crucial because it will determine whether the fear is legitimate. Impartial country information is essential but is unfortunately not always available. Reports become quickly outdated, and are often reliant on secondary rather than primary sources, meaning that the validity of the original information is compromised.[31] Further, it must be considered whether the producers of such country information are motivated by a concurrent agenda. For example, the Home Office has been criticised for authoring abridged reports which increase the likelihood of negative decisions, whilst human rights organisations may offer accounts that are skewed by a broader campaigning goal.[32] As such, it must be questioned whether the act of gathering and interpreting country information can ever be truly objective. The issue of reliable country information in relation to LGBTQI applicants is compounded by the fact that many such individuals live on the fringes of society, or are unable to report the abuses that they have suffered, and so their plight goes unrecorded.[33]

Limited resources mean that many courts do not have access to reliable, local knowledge of the intricacies of the particular community that the applicant is fleeing from. This lack of information has at times been used as evidence that there is no situation to be complained of in the country of origin. For example, in one case from the Czech Republic, which involved a transgender asylum seeker from the Ukraine, evidence of tolerance towards homosexuality in the home country was relied on as evidence that transsexuality would be treated in the same way.[34] This is a sweeping approach which fails to recognise the nuances of LGBTQI claims. The UNCHR has highlighted that individuals basing claims on sexual orientation or gender identity will often fall into sub-groups, such as lesbian, gay, bisexual, transgender, intersex and queer, and that membership of each sub-group will result in a myriad range of experiences which the decision maker must be aware of.[35]  Although transgender people are grouped under the LGBTQI umbrella, it is important to note that gender identity and sexual orientation are not synonymous. A transgender person may be straight, gay, lesbian, bisexual, or any other sexual orientation. Unfortunately, LGBTQI asylum seekers may still find that the international protection they are afforded is limited by a lack of understanding such understanding by decision makers.

The nebulous nature of the PSG definition may at first be perceived as a disadvantage. However, it is this freedom from a rigid form that has allowed it to develop to extend to individuals who may not otherwise have been afforded international protection. The provisions contained in the Convention are rooted in the ideals that were pertinent at the time it was drafted, after the Second World War. It is inconceivable that such a document conceived today would fail to explicitly provide a ground based on gender, sexual orientation, or other such categories. The majority of jurisprudence in this field relates to gay men, but as social awareness of differing sexual orientations and gender identities continues to grow, so too must application of the PSG definition.

The problems faced by LGBTQI applicants do not stem from the definition itself, but from inconsistent interpretation. The Qualification Directive has failed to resolve the differences in practice across the EU, and has endorsed a cumulative test in determining whether a PSG exists. This only adds to the many systematic hurdles that LGBTQI applicants must clear. More must be done to resolve the lottery faced by asylum seekers depending on which country they seek refuge in, both across the EU and internationally. The UNCHR has an important role to play in this regard, especially in promoting education against ingrained homophobia and prejudice which still undeniably taints many decision making processes.[36]

Membership of a PSG is therefore one of the most important grounds within the Convention because it permits a wide interpretation which allows it to evolve and remain relevant. It has successfully offered protection to refugees who may otherwise have been without. The unrestricted definition of PSG presents a unique opportunity for decision makers to expand more fully the protection offered to LGBTQI individuals. However, until the institutional and interpretive issues that still exist are tackled, the level of protection currently offered cannot be said to be fully sufficient.

 

Bibliography

EU Legislation

Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (The Qualification Directive)

UK cases

HT (Iran) and HJ (Cameroon) v  Secretary of State for the Home Department  [2010] UKSC 31

OO (Gay Men) Algeria CG v Secretary of State for the Home Department [2016] UKUT 00065 (IAC)

SW (lesbians – HJ and HT applied) Jamaica CG v Secretary of State for the Home Department [2011] UKUT 00251(IAC)

Court of European Justice cases

Joined cases C-148/13 to C-150/13, A (C-148/13), B (C-149/13) and C (C-150/13) v Staatssecretaris van Veiligheid en Justitie, 2 December 2014

Joined cases C-199/12 to C 201/12, X, Y and Z v. Minister voor Immigratie en Asiel, 7 November 2013

European cases

Supreme Administrative Court (Czech Republic), 14 November 2007, No. 6 Azs 102/2007

International cases

Applicant A and Another v. Minister for Immigration and Ethnic Affairs and Another, (1997) 190 CLR 225, Australia: High Court, 24 February 1997.

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada: Supreme Court, 30 June 1993

Matter of Acosta, A-24159781, United States Board of Immigration Appeals, 1 March 1985

UNCHR Guidelines and Handbooks

UNCHR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1992

UNCHR, Guidelines on International Protection of Membership of a Particular Social Group, 2002

UNCHR, Guidelines on International Protection no. 9, 2012

UNHCR, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, 2008

Books

Hathaway, J., & Foster, M. Nexus to civil or political status, in The Law of Refugee Status, 362-461, (2014, Cambridge: Cambridge University Press)

Thomas, Robert, Administrative Justice and Asylum Appeals, (2011, Oxford: Hart Publishing)

Journal Articles

Millbank, J. ‘‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group in Refugee Determinations’, (2009) 21(1) International Journal of Refugee Law, 1-13

 

Storey, Hugo, EU Refugee Qualification Directive: a Brave New World?, (2008) International Journal of Refugee Law, 20(1), 1–49

Thomas, R. ‘Assessing the Credibility of Asylum Claims: EU and UK Approaches Examined’, (2006) 8 European Journal of Migration and Law, 79-96

 

Reports

Weßels, Janna, Sexual orientation in Refugee Status Determination, (2011), Refugee Studies Centre French cases

Spijkerboer, Thomas & Jansen, Sabine, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in the EU (September 6, 2011), Coc Nederland/Vu University Amsterdam

Online articles

Pidd, Helen, Man faces deportation after UK officials refuse to believe he is gay, The Guardian, 22/2/2019,

https://www.theguardian.com/uk-news/2019/feb/22/man-faces-deportation-after-uk-officials-refuse-to-believe-he-is-gay (accessed 22/2/2019)

 

[1] 2011/95/EU.

[2] Storey, Hugo, EU Refugee Qualification Directive: a Brave New World?, (2008) International Journal of Refugee Law, 20(1), 1–49, p. 1.

[3] Article 10(1)(d) of the Qualification Directive.

[4] UNCHR, Guidelines on International Protection of Membership of a Particular Social Group, 2002, p. 2.

[5] A-24159781, United States Board of Immigration Appeals, 1 March 1985.

[6] [1993] 2 S.C.R. 689.

[7] Acosta (USBIA, 1985), [233].

[8] Applicant A and Another v. Minister for Immigration and Ethnic Affairs and Another, (1997) 190 CLR 225, Australia: High Court, 24 February 1997.

[9] ibid., p. 8-9.

[10] ibid.

[11] UNHCR Guidelines, (n4) p. 3.

[12] Hathaway, J., & Foster, M. Nexus to civil or political status, in The Law of Refugee Status, 362-461, (2014, Cambridge: Cambridge University Press) p.429.

[13] Joined cases C-199/12 to C 201/12, X, Y and Z v. Minister voor Immigratie en Asiel, 7 November 2013.

[14] Spijkerboer, Thomas & Jansen, Sabine, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in the EU (September 6, 2011), Coc Nederland/Vu University Amsterdam, p.34.

[15] ibid., p. 36.

[16] HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.

[17] ibid., [55]

[18] ibid., [77].

[19] X, Y and Z v. Minister voor Immigratie en Asiel (n13) [45-46].

[20] OO (Gay Men) Algeria CG v Secretary of State for the Home Department [2016] UKUT 00065 (IAC).

[21] ibid., [55].

[22] ibid., [5].

[23] UNCHR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1992 [37].

[24] Thomas, R. ‘Assessing the Credibility of Asylum Claims: EU and UK Approaches Examined’, (2006) 8

European Journal of Migration and Law, 79-96, p. 79

[25] (n20).

[26] UNHCR, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, 2008, para 35.

[27] SW (lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 00251(IAC).

[28] Joined cases C-148/13 to C-150/13, A (C-148/13), B (C-149/13) and C (C-150/13) v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, [64].

[29] Pidd, Helen, Man faces deportation after UK officials refuse to believe he is gay, The Guardian, 22/2/2019,

https://www.theguardian.com/uk-news/2019/feb/22/man-faces-deportation-after-uk-officials-refuse-to-believe-he-is-gay (accessed 22/2/2019).

[30] Millbank, J. ‘‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group

Refugee Determinations’, (2009) 21(1) International Journal of Refugee Law, 1-13.

[31] Thomas, Robert, Administrative Justice and Asylum Appeals, (2011, Oxford: Hart Publishing) p. 169.

[32] ibid.

[33] Weßels, Janna, Sexual orientation in Refugee Status Determination, (2011), Refugee Studies Centre, p. 38.

[34] Spijkerboer, Thomas and Jansen, Sabine, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in the EU (n13) citing Supreme Administrative Court (Czech Republic), 14 November 2007, No. 6 Azs 102/2007.

[35] UNCHR, Guidelines on International Protection no. 9, 2012, p.3.

[36] Weßels, Janna, Sexual orientation in Refugee Status Determination, (n32) p.42.

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