Too Queer or Not Queer Enough? LGBTIQ+ Asylum Seekers in the European Context
By Cinzia Dimonte
ABSTRACT
This blogpost examines the main challenges faced by LGBTIQ+ asylum seekers and calls for a fair asylum process in Europe, emphasizing the need to respect human rights, recognize persisting biases, and address intersectionality.
Keywords
SOGIESC, LGBTIQ+, asylum law, intersectionality
Introduction
Asylum seekers with diverse sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) face unique experiences, such as departure circumstances, journey challenges, and treatment in transit countries, and processes of credibility assessment in ‘host’ countries. This blogpost emphasizes the main persisting issues in relation to migrants and asylum seekers with diverse SOGIESC in the European Union, stressing the need for greater awareness of persisting stereotypes and an intersectional protective approach to improve asylum processes.
1. A Brief Overview of the Main International and EU Legal Instruments on International Protection
The 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol, which largely shape the Common European Asylum System, do not refer explicitly to SOGIESC as grounds upon which refugees might experience fear of persecution. However, sexual orientation and gender identity have been recognized as markers of membership to a particular social group, the latter being explicitly listed in EU law and international law as a ground upon which one might experience well-founded fear of persecution.[1]
Complementing the international refugee law regime, the Yogyakarta Principles plus 10 (YP+10), introduced in 2017, set up important guidelines for protecting queer asylum seekers. YP+10 Principle 23 centers on the “Right to seek asylum,” urging states to remove barriers for asylum seekers with diverse SOGIESC, emphasizing the need to recognize the full range of SOGIESC as grounds of well-founded fear of persecution for the recognition of the refugee status, discouraging related credibility requirements, prioritizing self-identification, safeguarding privacy, and promoting medical care access. UN Guidelines offer further guidance[2], considering various forms of harm when assessing persecution fears, such as killings, sexual and gender-based violence, physical attacks, torture, arbitrary detention, and discrimination in employment, health and education.[3] These principles collectively promote the safeguarding of the rights of LGBTIQ+ individuals seeking international protection.[4]
Although there are protective provisions in the Charter of Fundamental Rights of the EU and EU Directives, especially on refugee and subsidiary protection, challenges still persist. Moreover, the New Pact on Asylum and Migration, proposed in 2020 but not yet adopted,[5] raises concerns since it addresses mainly security concerns and issues of State ‘solidarity’ and less human rights and international protection needs, thus moving the focal point away from the primary assessment of the subjective characteristics which exacerbate the vulnerability of some groups and ultimately needing further development to build an effective system.
2. Too queer or not queer enough?
The main critical issue about queer asylum lies in the investigation of an applicant’s membership to a social group and the well-founded fear of persecution based on such membership.[6] Establishing the credibility of an applicant with diverse SOGIESC is left to the discretion of officials operating in asylum procedures. However, decision-makers often downplay applicants’ unfamiliarity with asylum procedures, project stereotypes on them and often doubt their credibility. Reception staff’s inadequate training, lacking legal knowledge on refugee experience, contributes to the production of Western stereotypes during assessments,[7] including expectations of a Western “coming out” narrative, involvement in LGBTIQ+ activism, or familiarity with LGBTIQ+ culture.[8] Hence, the status of asylum seekers often oscillates between being considered suspiciously “too queer” according to Western perceptions of country-of-origin standards or “not queer enough” by Western standards. Deviating from these stereotypes can lead to the non-recognition of membership in a particular social group or the denial of credibility, due to a lack of basic understanding of the complexities of the queer spectrum.
The work of judges is also questionable, as deeply rooted stereotypes persist within the judiciary.[9] Judges often expect explicit demonstrations of emotions and suffering from applicants, without considering their socio-geo-political contexts.[10] The demand for detailed expression of emotional baggage can be harmful to applicants’ mental health, particularly for those who have experienced sustained abuse and violence.[11]
Requiring disclosure of SOGIESC before applicants are psychologically stable and physically safe adds further vulnerability.[12] The expectation of a “healthy” sexual orientation linked to coming out primarily reflects privileged Western and white perspectives.[13] The assessment of credibility in SOGIESC asylum cases is tainted by cultural biases, inadequate training, and stereotypes.
Moreover, the “discretion requirement” poses an important challenge to the acceptance of SOGI asylum requests. According to this requirement, LGBTIQ+ applicants can avoid persecution by being “discreet” or hiding their sexual orientation or gender identity. Although the Court of Justice of the European Union (CJEU) rejected this concept in the X, Y, and Z case[14], subtler more implicit forms of the discretion requirement persist. In some cases, for instance, a bisexual man could be expected to give expression to his sexuality by having a relationship with a woman, similarly to homosexual men.[15]
In the UK, the discretion requirement emerged through the concept of being “reasonably tolerable”.[16] However, a significant ruling by the UK Supreme Court in 2010, in the case of HJ (Iran), recognized sexual identity as a fundamental characteristic and rejected the requirement of discretion. It stated that forcing an applicant to deny their identity was akin to self-induced oppression.[17] Moreover, UNHCR explicitly rejected the discretion requirement, as circumstances can change, and secrecy is not a long-term solution, with a great risk of being discovered and endangered.[18]
It is crucial to acknowledge the existence of a “refugee stigma”, which involves a perception of dependency on material assistance and dehumanization through pity.[19] For SOGIESC applicants and refugees, this is further intensified by the inevitable intersectional experience, as nationality at the very least intersects with gender or sexual identity.Research conducted in France on the intersectional experience of refugees and queer asylum seekers reveals that sharing spaces with others in reception centres or informal housing solutions can reinforce dehumanizing attitudes.[20]
Furthermore, a study conducted in Italy on LBQ[21] migrant women highlight the limited recognition of bisexual and queer identities, hindering integration into the host community and the likelihood of obtaining international protection.[22] This suggests an issue of stigma, which is exacerbated by language barriers and insufficient support within the migrant LGBTIQ+ community. The lack of robust evidence and the narrow interpretations of gender-based persecution may lead to deportations, violating the non-refoulement principle.
Mononormativity, which privileges dyadic romantic relationships, poses additional disadvantages on LGBQ applicants, especially in the absence of legal recognition of same-sex marriage or difficulties in providing evidence for cohabiting couples.[23] Statelessness adds another layer of challenges for intersex and transgender people, who may face difficulties in obtaining reliable documents for their asylum requests, exacerbating their vulnerability.[24] Likewise, disability and age are often overlooked factors in SOGIESC claims, with ableist stereotypes influencing the assessment of credibility and outcomes in the refugee status determination process. Understanding the intersectionality of disability, gender, and sexual orientation, as well as other characteristics like ethnicity and race, is crucial for developing a better asylum system.[25] An intersectional perspective is essential for analyzing the specific challenges faced by queer individuals seeking asylum and evaluating their international protection applications.[26]
3. The “Russian Doll” of rights violations of SOGIESC asylum seekers
Some relatively recent events have exacerbated the marginalization of LGBTIQ+ asylum seekers and can be seen as amounting to a dramatic “Russian Doll” of rights violations.
The EU-Turkey Statement, launched in March 2016, has the effect of limiting the entry of migrants, who might become asylum seekers once they reach the EU.[27] This comes at a significant cost in terms of protecting asylum seekers and upholding their rights, particularly in relation to asylum procedures and the treatment of detained individuals. This situation is especially concerning for vulnerable groups like asylum seekers with diverse SOGIESC, given the high levels of social discrimination against LGBTIQ+ people in Turkey[28] and the EU focus on border control rather than a human-rights-centred approach to managing ‘migration flows.
In the context of the Russo-Ukrainian conflict, although displaced persons have been treated more favourably with the first-ever application of the EU Temporary Protection Directive, some Member States are notorious for their treatment of LGBTIQ+ people. This is the case of neighbouring countries like Poland and Hungary, where persons with diverse SOGIESC face exacerbated issues, given the long history of violations against them. Moreover, closure towards Russia also meant that Russian LGBTIQ+ individuals were made vulnerable to human rights violations.
Finally, an ILGA-Europe report on the Covid-19 pandemic underlined how, in some Member States, it has greatly worsened the conditions of LGBTIQ+ people especially within reception facilities, where there is a greater risk of domestic or other forms of violence.[29]
One of the most important aspects that emerge from this analysis is that Europe’s policies prioritize Member States’ economic-political interests over human rights and international protection, resulting in an ineffective reception system and a weakened rule of law.
Conclusion
This blogpost has highlighted the main issues in the asylum process for SOGIESC individuals, referring to persisting stereotypes, the lack of consideration for individual and intersectional experiences, and existing biases in decision-making processes. Current policies have exacerbated the situation, emphasizing border control over human rights and international protection. Addressing these issues demands an intersectional perspective and a deep understanding of the complexities of the asylum process to ensure fairness for all seeking protection.
Citation: Dimonte, Cinzia, “Too queer or not queer enough? LGBTIQ+ Asylum Seekers in the European context”, NOVA Refugee & Migration Clinic Blog, October 2023, available at https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=too-queer-or-not-queer-enough-lgbtiq-asylum-seekers-in-the-european-context
[1] See e.g. X, Y, Z v Minister voor Immigratie en Asiel, C‑199/12 – C‑201/12, European Union: Court of Justice of the European Union, 7 November 2013. See also Directive 2011/95/EU 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) [2011] OJ L 337, Art 10(d).
[2] ‘UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity.’ (UNHCR, 2012) https://www.unhcr.org/media/unhcr-guidelines-international-protection-no-9-claims-refugee-status-based-sexual-orientation> accessed September 2023
[3] ‘Report of the United Nations High Commissioner for Human Rights on Discriminatory Laws and Practices and Acts of Violence against Individuals Based on Their Sexual Orientation and Gender Identity.’ (UN Human Rights Council, 2011) https://digitallibrary.un.org/record/719193> accessed September 2023.
[4] (Yogyakarta Principles plus 10, 2017) http://yogyakartaprinciples.org/principles-en/yp10/> accessed September 2023.
[5] ‘New Pact on Migration and Asylum.’ (European Commission, 2020) https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/promoting-our-european-way-life/new-pact-migration-and-asylum_en> accessed September 2023.
[6] Gartner JL and Chase A, ‘(In)Credibly Queer: Sexuality-Based Asylum in the European Union.’, Transatlantic Perspectives on Diplomacy and Diversity (Humanity in Action Press 2015)
[7] Batchelor T, ‘Gay Man Denied Asylum in Austria Because He Was “Too Girlish”’ (The Independent, 27 August 2018) https://www.independent.co.uk/news/world/europe/austria-gay-man-asylum-application-denied-girlish-lgbt-iraq-a8506091.html> accessed September 2023
[8] Bennett C and Thomas F, ‘Seeking Asylum in the UK: Lesbian Perspectives.’ [2013] Forced Migration Review 25
[9] Danisi C and others, Queering Asylum in Europe: Legal and Social Experiences of Seeking International Protection on Grounds of Sexual Orientation and Gender Identity (Springer 2021)
[10] Woolley A, ‘Narrating the “Asylum Story”: Between Literary and Legal Storytelling.’ (2016) 19 Interventions 376
[11] Courtois CA and Ford JD, Treatment of Complex Trauma. A Sequenced, Relationship-Based Approach. (Guilford Press 2015)
[12] Alessi EJ, ‘Resilience in Sexual and Gender Minority Forced Migrants: A Qualitative Exploration.’ (2016) 22 Traumatology 203.
[13] Ferdoush, M. A. (2016) ‘Revisiting Cass’s Model of Homosexual Identity Development in the Context of Bangladesh Society’. Sage Open 6(2).
[14] CJEU, Case C-199/12, C-200/12, C-201/12, X. Y. Z. v Minister voor Immigratie en Asiel, 7 November 2013
[15] VG Saarland, 23 January 2015, 5 K 534/13, as in ECRE – European Council on Refugees and Exiles. (2017). Preliminary deference? The impact of judgments of the Court of Justice of the EU in cases X.Y.Z., A.B.C. and Cimade and Gisti on national law and the use of the EU Charter of Fundamental Rights
[16] J. v Secretary of State for the Home Department [2006] EWCA Civ 1238; para. 13.
[17] HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, para.123
[18] ‘UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity. (HCR/GIP/12/09’ (UNHCR, 2012) https://www.unhcr.org/media/unhcr-guidelines-international-protection-no-9-claims-refugee-status-based-sexual-orientation> accessed September 2023).
[19] Ludwig B, ‘“Wiping the Refugee Dust from My Feet”: Advantages and Burdens of Refugee Status and the Refugee Label’ (2013) 54 International Migration 5
[20] Chossière F, ‘Refugeeness, Sexuality, and Gender: Spatialized Lived Experiences of Intersectionality by Queer Asylum Seekers and Refugees in Paris’ (2021) 3 Frontiers in Human Dynamics
[21] lesbian, bisexual, and queer
[22] Masullo G and Ferrara C, ‘Intersectionality and the Subjective Processes of LBQ Migrant Women: Between Discrimination and Self-Determination.’ (2021) 11 Italian Sociological Review 39
[23] ‘’32 Recommendations to the European Commission on the New EU LGBTI+ Equality Strategy.’ (SOGICA Project, 2020) https://www.sogica.org/database/sogica-project-32-recommendations-to-the-european-commission-on-the-new-eu-lgbti-equality-strategy-2020/> accessed September 2023
[24] Manby B, ‘Statelessness and Citizenship in the East African Community’ [2018] SSRN Electronic Journal; McGee T, ‘“Rainbow Statelessness” — between Sexual Citizenship and Legal Theory: Exploring the Statelessness–LGBTIQ+ Nexus’ (2020) 2 Statelessness & Citizenship Review 86.
[25] Thompson VE, ‘Policing in Europe: Disability Justice and Abolitionist Intersectional Care’ (2021) 62 Race & Class 61
[26] Danisi C and others, Queering Asylum in Europe: Legal and Social Experiences of Seeking International Protection on Grounds of Sexual Orientation and Gender Identity (Springer 2021)
[27] ‘EU-Turkey Joint Action Plan’ (European Commission, 2016) https://ec.europa.eu/commission/presscorner/detail/en/MEMO_15_5860> accessed November 2023
[28] ‘A Blueprint for Despair. Human Rights Impact of the EU-Turkey Deal.’ (Amnesty International, 2017) https://www.amnesty.org/en/wp-content/uploads/2021/05/EUR2556642017ENGLISH.pdf> accessed September 2023. Ergun D and others, ‘The Role of the Middle East in the EU-Turkey Security Relationship: Key Drivers and Future Scenarios.’ (2018) 20 Istituto Affari Internazionali – FEUTURE Online Paper
[29] Council of Europe, ‘Report by ILGA-Europe: Covid-19 Impacts on LGBTI Communities in Europe and Central Asia: A Rapid Assessment Report.’ (Sexual Orientation and Gender Identity, 24 June 2020) https://www.coe.int/en/web/sogi/-/report-by-ilga-europe-covid-19-impacts-on-lgbti-communities-in-europe-and-central-asia-a-rapid-assessment-report> accessed September 2023