June is international Pride Month, in which people around the world celebrate LGBTQIA identity and pride, while also raising awareness about the ever-present discrimination and human rights violations against sexual minorities. For this Info Series article, we want to address the issue of LGBTQIA identity in the context of forced migration, European asylum policy and human rights violations.
People who need to flee their country of origin due to their sexual and / or gender identity are often forced to undergo undignified and discriminating practices. Too often protection measures are not implemented, meaning that LGBTQIA refugees are forced to live in camps or community shelters with people from the countries they have escaped. This puts them in danger of facing the same kind of discrimination and violence they fled from in the first place. In theory, EU law stipulates how LGBTQIA refugees should be protected - but as with so many other EU laws, these regulations are often violated and disrespected.
For this 10th Info Series article, we thought we would do something a little bit different and speak to an expert on this complex issue. We are excited to share a blog post written by Abigail Field, a legal expert for LGBTQIA refugee rights. She has been working on Lesbos for years, helping prepare refugees for their asylum interviews and coordinating family reunification. Her special focus are LGBTQIA refugees and she has written this post detailing what European law says about them and how it is currently implemented.
In many countries, sexual minorities are marginalised, persecuted, and discriminated against due to their sexual orientation or gender identity. As a community, they experience a range of human rights violations globally including physical violence, sexual abuse, harassment and threats, arbitrary arrests and imprisonment. [1] According to the Human Dignity Trust, there are currently 71 countries that criminalise same-sex sexual activity and 15 countries that criminalise the gender identity and/or gender expression of transgender people. In these circumstances, people are often forced to flee their country of origin due to the threat or risk to their safety.
EU law recognises sexual orientation and gender identity (SOGI) asylum applicants as a member of a particular social group, which is one of the grounds for refugee status. [2] When assessing the claim, SOGI applicants are afforded additional protections due to the personal and sensitive nature of their claim. For instance, it cannot be deduced solely from the late disclosure of their orientation or identity that the applicant is not credible, and there are certain restrictions in place with regards to the evidence and questions that the caseworker [3] can ask during the interview. [4]
In most cases, the main source of evidence is the applicant’s interview. [5] As sexual orientation or gender identity is something inherent to one’s identity, rather than something external, it poses challenges in determining the credibility of an applicant’s claim. There is often little external evidence in support of the claim. SOGI applicants can have additional barriers to articulate their claim including feelings of shame, internalised homophobia, as well as previously concealing their identity for many years or not yet being fully comfortable with their identity. [6] All of these create issues for their claim to be substantiated.
Consequently, caseworkers frequently resort to stereotypical notions to assess the credibility of SOGI claims. [7] The use of stereotypes can occur in the form of questions, expectations on sexual minority lifestyles, or presumptions on appearance, demeanour or behaviour. A decision at the EU Court of Justice stated that although stereotypical notions can be used to assist the caseworker in making a decision, they cannot be solely relied upon. Nonetheless, the use of, and reliance on stereotypical notions is hugely problematic; it is often Eurocentric, fails to acknowledge the complexities involved, and assumes every SOGI individual has the same lived experience. Moreover, studies have shown that decisions based on stereotypes are more likely to be faulty. [8]
In addition to the over-reliance on questions relying on stereotypes, the framing of questions during the asylum interview is often insensitive or biased. Questions often refer to sexual orientation as a ‘choice’ or ‘lifestyle’, sometimes even going as a far asking the applicant why they choose to be in a same-sex relationship if they knew it would be difficult. This is particularly an issue considering the applicant may already harbour feelings of shame, and if someone has experienced a traumatic event due to their orientation or identity, the framing of such questions amounts to victim-blaming.
To prevent biases and discrimination towards SOGI applicants, further training for the caseworkers and asylum service needs to be done. There is a legal framework already in place; the EU Charter and Asylum Procedures Directive (recast) states that applications should be examined individually, objectively and impartially, and according to the EU Procedural directive, caseworkers should be both sufficiently trained and competent in relation to SOGI claims. The problem arises because this is not translated in practice; there needs to be proper and thorough training enforced that recognises the complexities of SOGI asylum claims.
[1] Victoria Neilson, ‘Homosexual or Female – Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims’ (2005) 16 Stanford Law & Policy Review 417, 425-426; Kate Sheill, ‘Losing out in the intersections: lesbians, human rights, law and activism’ (2009) 15 Contemporary Politics 55; Mark Messih, ‘Mental Health in LGBT Refugee Populations’ (2016) 11 American Journal of Psychiatry Residents' Journal 5.
[2] Court of Justice of the European Union, judgment of 7 November 2013, X, Y and Z, joined cases C199/12 and C201/12, EU:C:2013:720.
[3] E.d. Caseworkers are employees of government authorities, who work on asylum applications.
[4] A, B, C v Staatssecretaris van Veiligheid en Justitie, C-148/13 to C-150/13, European Union: Court of Justice of the European Union, 2 December 2014 (A, B and C) [2014].
[5] Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (Vrije Universiteit Amsterdam 2011) 47.
[6] ibid.
[7] Vítor Lopes Andrade et al, ‘Queering Asylum in Europe: A Survey Report’ (SOGICA, July 2020); Charlotte Mathysse, ‘Barriers to justice in the UK’ in Sexual Orientation and Gender Identity and the Protection of Forced Migrants (Forced Migration Review issue 42, April 2013); Gartner (n 110).
[8] Erin Gomez, ‘The Post-ABC Situation of LGB Refugees in Europe’ 30 Emory International Law Review 475.
June is international Pride Month, in which people around the world celebrate LGBTQIA identity and pride, while also raising awareness about the ever-present discrimination and human rights violations against sexual minorities. For this Info Series article, we want to address the issue of LGBTQIA identity in the context of forced migration, European asylum policy and human rights violations.
People who need to flee their country of origin due to their sexual and / or gender identity are often forced to undergo undignified and discriminating practices. Too often protection measures are not implemented, meaning that LGBTQIA refugees are forced to live in camps or community shelters with people from the countries they have escaped. This puts them in danger of facing the same kind of discrimination and violence they fled from in the first place. In theory, EU law stipulates how LGBTQIA refugees should be protected - but as with so many other EU laws, these regulations are often violated and disrespected.
For this 10th Info Series article, we thought we would do something a little bit different and speak to an expert on this complex issue. We are excited to share a blog post written by Abigail Field, a legal expert for LGBTQIA refugee rights. She has been working on Lesbos for years, helping prepare refugees for their asylum interviews and coordinating family reunification. Her special focus are LGBTQIA refugees and she has written this post detailing what European law says about them and how it is currently implemented.
In many countries, sexual minorities are marginalised, persecuted, and discriminated against due to their sexual orientation or gender identity. As a community, they experience a range of human rights violations globally including physical violence, sexual abuse, harassment and threats, arbitrary arrests and imprisonment. [1] According to the Human Dignity Trust, there are currently 71 countries that criminalise same-sex sexual activity and 15 countries that criminalise the gender identity and/or gender expression of transgender people. In these circumstances, people are often forced to flee their country of origin due to the threat or risk to their safety.
EU law recognises sexual orientation and gender identity (SOGI) asylum applicants as a member of a particular social group, which is one of the grounds for refugee status. [2] When assessing the claim, SOGI applicants are afforded additional protections due to the personal and sensitive nature of their claim. For instance, it cannot be deduced solely from the late disclosure of their orientation or identity that the applicant is not credible, and there are certain restrictions in place with regards to the evidence and questions that the caseworker [3] can ask during the interview. [4]
In most cases, the main source of evidence is the applicant’s interview. [5] As sexual orientation or gender identity is something inherent to one’s identity, rather than something external, it poses challenges in determining the credibility of an applicant’s claim. There is often little external evidence in support of the claim. SOGI applicants can have additional barriers to articulate their claim including feelings of shame, internalised homophobia, as well as previously concealing their identity for many years or not yet being fully comfortable with their identity. [6] All of these create issues for their claim to be substantiated.
Consequently, caseworkers frequently resort to stereotypical notions to assess the credibility of SOGI claims. [7] The use of stereotypes can occur in the form of questions, expectations on sexual minority lifestyles, or presumptions on appearance, demeanour or behaviour. A decision at the EU Court of Justice stated that although stereotypical notions can be used to assist the caseworker in making a decision, they cannot be solely relied upon. Nonetheless, the use of, and reliance on stereotypical notions is hugely problematic; it is often Eurocentric, fails to acknowledge the complexities involved, and assumes every SOGI individual has the same lived experience. Moreover, studies have shown that decisions based on stereotypes are more likely to be faulty. [8]
In addition to the over-reliance on questions relying on stereotypes, the framing of questions during the asylum interview is often insensitive or biased. Questions often refer to sexual orientation as a ‘choice’ or ‘lifestyle’, sometimes even going as a far asking the applicant why they choose to be in a same-sex relationship if they knew it would be difficult. This is particularly an issue considering the applicant may already harbour feelings of shame, and if someone has experienced a traumatic event due to their orientation or identity, the framing of such questions amounts to victim-blaming.
To prevent biases and discrimination towards SOGI applicants, further training for the caseworkers and asylum service needs to be done. There is a legal framework already in place; the EU Charter and Asylum Procedures Directive (recast) states that applications should be examined individually, objectively and impartially, and according to the EU Procedural directive, caseworkers should be both sufficiently trained and competent in relation to SOGI claims. The problem arises because this is not translated in practice; there needs to be proper and thorough training enforced that recognises the complexities of SOGI asylum claims.
[1] Victoria Neilson, ‘Homosexual or Female – Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims’ (2005) 16 Stanford Law & Policy Review 417, 425-426; Kate Sheill, ‘Losing out in the intersections: lesbians, human rights, law and activism’ (2009) 15 Contemporary Politics 55; Mark Messih, ‘Mental Health in LGBT Refugee Populations’ (2016) 11 American Journal of Psychiatry Residents' Journal 5.
[2] Court of Justice of the European Union, judgment of 7 November 2013, X, Y and Z, joined cases C199/12 and C201/12, EU:C:2013:720.
[3] E.d. Caseworkers are employees of government authorities, who work on asylum applications.
[4] A, B, C v Staatssecretaris van Veiligheid en Justitie, C-148/13 to C-150/13, European Union: Court of Justice of the European Union, 2 December 2014 (A, B and C) [2014].
[5] Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (Vrije Universiteit Amsterdam 2011) 47.
[6] ibid.
[7] Vítor Lopes Andrade et al, ‘Queering Asylum in Europe: A Survey Report’ (SOGICA, July 2020); Charlotte Mathysse, ‘Barriers to justice in the UK’ in Sexual Orientation and Gender Identity and the Protection of Forced Migrants (Forced Migration Review issue 42, April 2013); Gartner (n 110).
[8] Erin Gomez, ‘The Post-ABC Situation of LGB Refugees in Europe’ 30 Emory International Law Review 475.
