By Ido Kilovaty, Assistant Contributor
Asylum seekers fleeing persecution on the grounds of their sexual orientation and gender identity often seek refuge in the EU. Although the 1951 Convention relating to the Status of Refugees does not explicitly mention ‘sexual orientation’ or ‘gender identity’ as recognized grounds for claiming refugee status, many countries have established that those grounds are part of the ‘membership in a particular social group,’ a general ground recognized by the Convention. These countries include Australia, Canada, France, Germany, UK and the US. The second requirement to acquire refugee status is well founded fear of persecution in the country of origin. There is a general understanding that the severity of persecution has to reach a certain threshold in order to justify refugee status.
In order to clarify the interpretation regarding Lesbian, Gay, Bisexual, Transexual and Intersex (LGBTI) asylum seekers among EU states, the European Court of Justice issued a groundbreaking decision on the issue earlier this month (November). The Court ruled that the EU Qualification Directive (the EU legislation implementing the 1951 Convention) should be interpreted in three different ways in order to assist LGBTI asylum claimants. First, the Court held that laws criminalizing homosexual conduct in the country of origin support the finding that LGBTI are members of particular social groups. Second, in order for those laws to reach the threshold of persecution, they must have discriminatory or disproportionate punishment. Third, the Court took the view that homosexual asylum seekers cannot be required by EU member states to conceal their sexual identity. Applying this standard, the Court ruled that the petitioners are entitled to asylum within the EU.
Although the Court’s decision is encouraging and valuable, it still does not cover LGBTI asylum seekers wholly. Given the practice of several EU member states, there are still some hardships that LGBTI asylum seekers have to overcome in order to be granted asylum. Some of the weaknesses of the ECJ ruling are listed below.
One of the weaknesses of the ECJ decision is that it does not address the procedure to determine whether an asylum applicant is LGBTI. UNHCR guidelines regarding LGBTI asylum seekers give some framework to determine whether an asylum seeker is LGBTI. The guidelines include the technical part of the procedure (rules of conduct for interviewers, required training) and substantive part, which gives set of issues and backgrounds that asylum seekers are to be asked. The guidelines are not binding upon States, but they may help in cases of uncertainty.
In the United Kingdom, LGBTI asylum seekers are frequently required to ‘prove’ they are gay. Asylum seekers are required to present video or photographic evidence that proves their sexual orientation. More questionable methods include requiring photographs or videos of ‘highly personal sexual activity’ to the asylum seekers, asking the asylum seekers to name Oscar Wilde’s works and show medical evidence of penetrative sexual intercourse. In a recent report of the UK Home Affairs Committee, the Committee found that this area of the British asylum procedure was highly problematic
“[W]e were concerned to hear that the decision making process for LGBTI applicants relies so heavily on anecdotal evidence and ‘proving that they are gay.” As the court determined, the test should be whether people are gay or perceived to be so… it is not appropriate to force people to prove their sexuality if there is a perception that they are gay. The assessment of credibility is an area of weakness within the British asylum system. Furthermore, the act that credibility issues disproportionately affects the most vulnerable applicants—victims of domestic and sexual violence, victims of torture and persecution because of their sexuality—make improvement all the more necessary.”
As of today, there is no change in the policy of the UK on this matter. A highly inappropriate measure has also been recorded in the Czech Republic, where gay asylum seekers were asked to undergo sexual arousal tests. The EU criticized the Czech Republic for employing the test.
Another weakness of the ECJ decision is that it does not address the severity of the well founded fear of persecution as well as its nuances among different States that criminalize homosexuality. The Foreign Minister of the Netherlands, Frans Timmermans, recently said that ‘[G]ays in Russia are not prosecuted and, thus, there are no grounds to grant them asylum in the Netherlands,’ a statement that reflects the unwillingness of some EU member states to comply with their international obligations to LGBTI asylum seekers. Another example is the detention of an Iranian gay asylum seeker in Greece, although, following pressure from the EU and LGBTI organizations, Greece decided not deport him eventually. Finland has deported at least ten asylum seekers on the grounds of sexual orientation between 2008 and 2010, although those asylum seekers showed evidence of well founded fear of persecution by showing that their governments are harshly punishing homosexuals. As demonstrated above, LGBTI asylum seekers face many challenges that the ECJ ruling did not address.
It appears that the ECJ decision tries to structure a uniform framework for EU member states when assessing LGBTI asylum seekers claims; however, the Court did not address other issues mentioned above, including the severity of the well founded fear of persecution and the disparity in methods of LGBTI status determinations. It appears that the problem may be deeper than any court’s decision may solve. Some states are mistreating LGBTI asylum seekers, in violation of their international obligations and the fundamental human rights that the asylum seekers have. The methods employed by some States are degrading and unnecessary, and may be put to review by national courts and European courts (ECHR and ECJ) in the future.