AEDH

LGBTI asylum seekers: a badly recognised vulnerability!

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17 February 2017 – What protection does Europe ensure to lesbian, gay, bisexual, trans and intersex (LGBTI) asylum seekers, persecuted, discriminated and harassed in their country of origin?

The 1951 Geneva Convention and the European Qualification Directive represent the legal frame of reference for the granting of international protection to these people in member States. The criteria of “belonging to a certain social group” among the reasons to persecution allowing to the right to asylum, is thus affirmed by the international Convention relating to the status of refugees. The European directive specifies in its article 10.1 (d): “Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group[1]. Gender identity thus came to complete the Directive 2004 which only made reference to sexual orientations (Read the AEDH note Integrating the European “Asylum Package” in national law).

Moreover, other texts composing the common European asylum system (CEAS) provide additional guarantees to LGBTI asylum seekers.

  • The asylum procedures Directive establishes that “certain applicants may be in need of special procedural guarantees due, inter alia, to […] sexual orientation, gender identity” (Recital 29), in particular during their personal interview (art. 15§3(a)) or the divulgation of information concerning the particular situation of the applicants (art. 11§3)[2].
  • The reception conditions Directive, which recommends to Member States an equal treatment of all asylum seekers, specifies that “measures to prevent assault and gender-based violence, including sexual assault and harassment[3] should be assured.
  • Finally, Dublin III Regulation claims that “respect for family life should be a primary consideration of Member States when applying this Regulation” (Recital 14 and 15)[4] and thus promotes the joint treatment of the applications for family members. This can thus include LGBTI members, while leaving to member States the freedom to define the terms of “family.

LGBTI people are under a condition of double vulnerability, a “vulnerability linked to their situation of migration”, and a “vulnerability linked to their sexual orientation and/or gender identity[5]. As ILGA Europe highlights, on one hand, LGBTI applicants are exposed to risks of exclusion, harassment or other violence during their journey towards Europe, on the other hand, their vulnerability requires particular measures in terms, for instance, of legal assistance, reception conditions and healthcare[6].

European legislation, strengthened by the decision of the Court of Justice of the EU of 2 December 2014, which establishes the methods of national authorities to assess the credibility of the sexual orientation of asylum seekers[7], can thus be judged as the guarantor of the granting of international protection to LGBTI asylum seekers.

Nevertheless, practice still and too often presents problems, members States applying different margins of discretion at the moment of processing the asylum requests.

In order to obtain the status of international protection, LGBTI asylum seekers have to prove both their sexual orientation or gender identity, and the risk of persecution due to that reason. Therefore, divergences emerge between member States regarding the recognition of the risk of persecution in the countries of origin.[8] In fact, the right to asylum for these people needs to be recognised even in cases where the country of origin does not explicitly criminalise homosexuality or transsexuality; discriminatory attitudes might be existing at a cultural and societal level.[9] To this should be added the limited knowledge of national authorities of member States about the real situation in the countries from which LGBTI applicants flee.[10] Lastly, the proof of their belonging to the group of LGBTI people has to go through personal questioning and clichés that are often offensive, in order to “convince” the authorities responsible for ruling on the granting of the international protection.[11]

The risk of violation of human rights of LGBTI asylum seekers is evident especially in the reception and detention centres, where no differentiation is assured with heterosexual persons, exposing them to situations of exclusion, abuse, violence and harassment. A 2016 report published by LGBT charity Stonewall and the UK Lesbian and Gay Immigration Group, witnesses of the situation of many LGBTI applicants detained in the United Kingdom.[12] Detention had both physical consequences on this individuals (abuse, violence, torture) and mental effects, LGBTI persons denouncing widespread discrimination, but also the perception of being treated as criminals and therefore the prolongation of their position of persecution.

Despite UNHCR recommendations[13], and the guidelines aimed at training national and European authorities to improve the situation of LGBTI asylum seekers, supported by the Council of Europe HELP program[14], it appears that the requirement of the respect of people and the guarantees of rights in the specific case LGBTI are still badly ensured.

For that reason alone, AEDH insists on the danger in designing some countries as safe countries of origin, or even safe third countries; returning LGBTI people risks being a return to a world of discrimination, even violence. On the contrary, our association insists on the pressing need to fully adopt all reception systems, as well as the procedures concerning people in search of international protection due to their sexual orientation, their belonging to LGBTI social group, in order to give them the opportunity to finally live.

[1] 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 (recast), http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011L0095&from=FR

[2] Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032&from=fr

[3] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0033&from=EN

[4] Regulation (EU) no 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0604&from=EN

[5] Report « Asile LGBT Genève. Recherche – action sur l’accueil des réfugié.es LGBTI à Genève », 2016 http://lgbt.asile.ch/wp-content/uploads/2016/11/Rapport-Asile-LGBT-Gen%C3%A8ve.pdf

[6] ILGA Europe, “Seeking refuge without harassment, detention or return to a “safe country””, February 2016, http://ilga-europe.org/sites/default/files/Attachments/ilga_europe_briefing_on_lgbti_asylum_issues_-_february_2016.pdf

[7] AEDH, “Asylum application and sexual orientation », 2 December 2014, http://www.aedh.eu/Asylum-application-and-sexual.html

[8] Europe 1, “Droit d’asile pour les homosexuels : comment prouver qu’on est gay ? », 16 December 2014, http://www.europe1.fr/mediacenter/emissions/c-est-votre-question/videos/video-droit-d-asile-comment-prouver-qu-on-est-bien-gay-2315329

[9] FRA report, « Protection against discrimination on grounds of sexual orientation, gender identity and sex characteristics in the EU», 2015, http://fra.europa.eu/sites/default/files/fra_uploads/protection_against_discrimination_legal_update_2015.pdf

[10] Ibid.

[11] Slate, «Droit d’asile: comment prouver qu’on est homosexuel ? », 29 April 2015, http://www.slate.fr/story/100943/droit-dasile-preuve-homosexualite

The Guardian, “How do you prove you are gay? A culture of disbelief is traumatising asylum seekers”, 24 November 2015, https://www.theguardian.com/commentisfree/2015/nov/24/gay-asylum-seekers-sexuality-home-office

[12] Report by Stonewall and UK Lesbian and Gay Immigration Group, “No safe refuge. Experiences of LGBT asylum seekers in detention”, 2016, http://www.stonewall.org.uk/sites/default/files/no_safe_refuge.pdf

[13] UNHCR, “Protecting Persons with Diverse Sexual Orientations and Gender Identities”, December 201, http://www.refworld.org/docid/566140454.html

[14] ILGA Europe, “Seeking refuge without harassment, detention or return to a “safe country””, February 2016, http://ilga-europe.org/sites/default/files/Attachments/ilga_europe_briefing_on_lgbti_asylum_issues_-_february_2016.pdf

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