Asylum Claims and the Adjudication of Sexual Identity
In immigration systems around the world, credibility stands as the primary burden of proof and identity indicator for sexual and gender minorities fleeing persecution in their countries of origin. In determining who assesses credibility and how, however, precision has long eluded researchers, lawmakers, and adjudicators as fluidity and multiplicity in identity has come to define sexual- and gender-minority communities. The reliance on expert assessments and interviewer perceptions in legal and administrative decisions has proven problematic from both a scientific and human rights perspective. Testing often involves a combination of physiological and psychological measurement, from arousal responses to personality assessments, and interviews have been based on a range of cultural biases and unrealistic expectations.
Immigration laws across nations have variously granted or denied asylum based on behavior, identity, affiliation, or perception, and the lack of standardization has created a large degree of uncertainty for LGBT individuals fleeing unsafe conditions in their countries of origin. This Citations installment outlines the patchwork of domestic and international laws and guidelines framing the consideration of asylum claims by sexual and gender minorities in popular destination countries, region- and country-specific legal and administrative processes, and recent trends in the assessment of sexual and gender identity and asylum claims.
The U.N. Convention Relating to the Status of Refugees (also known as the 1951 Refugee Convention) established guidelines determining the status of an individual as a refugee, defined as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” The “membership of a particular social group” item has become the cornerstone of the expansion of asylum rights to LGBT individuals fleeing persecution, and international organizations have undertaken efforts to outline frameworks for ascertaining such membership.
- The 1951 Refugee Convention + 1967 Protocol (U.N. High Commissioner for Refugees)
- Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (U.N. High Commissioner for Refugees)
- Refugee Status Claims Based on Sexual Orientation or Gender Identity: A Practitioners’ Guide (International Commission of Jurists | February 2016)
In a victory for LGBT asylum-seekers in Europe, the E.U. Court of Justice recently ruled against Hungarian immigration officials’ decision to deny a gay Nigerian’s asylum claim as the result of a sexuality assessment test. In its ruling, the ECJ determined that while such psychological assessments are not prohibited, the results cannot factor into asylum decisions when testing methodology contravenes any of the human rights outlined in the Charter of Fundamental Rights of the European Union. The decision comes as the culmination of a series of rulings related to the assessment of sexual identity in asylum decisions in member states amid historic levels of trans-Mediterranean migration.
- Charter of Fundamental Rights of the European Union
- “An asylum seeker may not be subjected to a psychological test in order to determine his sexual orientation” (Court of Justice of the European Union | January 2018)
- “No Safe Refuge: Experiences of LGBT Asylum Seekers in Detention” (U.K. Lesbian and Gay Immigration Group + Stonewall | October 2016)
- “EU court blocks gay asylum tests” (BBC News | December 2014)
- “LGBTI asylum claims: the Central and Eastern European perspective” (Forced Migration Review | April 2013)
- “Czech gay asylum ‘phallometric test’ criticised by EU” (BBC News | December 2010)
Since 1994, the U.S. has recognized sexual identity as grounds for granting asylum in the country. The political and legal recognition of LGBT asylum-seekers has co-evolved with that of LGBT citizens, with asylum decision-making processes having liberalized alongside greater scientific research into sexual orientation and expanding legal rights and protections for LGBT citizens. Today, LGBT asylum-seekers submit an application that includes documentation corroborating both individual circumstances as well as the conditions LGBT individuals face in their country of origin and are then selected to participate in an interview with the Department of Homeland Security. With no government data kept regarding the outcome of claims based on sexual orientation, however, transparency and accountability have emerged as central issues for advocates and watchdogs seeking to promote security and rigor in adjudication.
- Review of U.S. Asylum Decisions (Immigration Equality)
- Applying for Asylum (Immigration Equality)
- Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims: Training Module (U.S. Citizenship and Immigration Services)
- “Humanitarian Diplomacy: The U.S. Asylum System’s Role in Protecting Global LGBT Rights” (The Center for American Progress | June 2015)
- “The Difficulties of U.S. Asylum Claims Based on Sexual Orientation” (Migration Policy Institute | October 2008)
- Matter of Toboso-Alfonso (U.S. Department of Justice Board of Immigration Appeals)
While Australia has recognized sexual orientation as part of the 1951 Convention’s designation of “membership of a particular social group,” the country has faced significant criticism for its asylum process for LGBT petitioners, which has included low approval rates and offshore detention that has further imperiled asylum-seekers. When asylum-seekers have gone before the Refugee and Migration Division of the Administrative Appeals Tribunal in a final attempt to secure asylum, they have faced arbitrary, invasive, stereotypical, and culturally ignorant lines of questioning and expectations by interviewers and offered private photos and texts by asylum-seekers in desperation to “confirm” their sexual identity.
- Guidelines on Gender (Administrative Appeals Tribunal)
- Guidelines on the Assessment of Credibility (Administrative Appeals Tribunal)
- Annexure 5: Assessing claims related to sexual orientation and gender identity (Department of Home Affairs)
- A Guide to Best Practice in Determining Applications for Refugee Status Based on Sexual Orientation, Gender Identity and Intersex Grounds (Kaleidoscope Australia Human Rights Foundation)
- “Not gay enough: the bizarre hoops asylum seekers have to leap through” (The Sydney Morning Herald | December 2017)
- “Protection Struggles: Australia’s approach to LGBT asylum seekers and refugees” (Asylum Insight | November 2016)
- “Gay asylum seekers on Manus Island write of fear of persecution in PNG” (The Guardian | September 2014)
As immigration and refugee acceptance have become political hot topics in Europe, the U.S., and Australia, Canada has sought to position itself as a beacon of acceptance for individuals fleeing to the Global North to escape war or persecution. LGBT individuals petitioning for asylum enjoy higher-than-average approval rates in the country, but advocates have noted that Canada’s adjudication process has historically suffered from the same cultural biases and pitfalls in credibility assessment as other popular destination countries. Tight claim deadlines and multiple points of inquiry introduce further precarity in the process, but advocates are hopeful that a new set of guidelines issued in 2017 will improve the adjudication process.
- Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (Immigration and Refugee Board of Canada)
- “Canada Levels the Playing Field for LGBTI Refugees” (Human Rights Watch | May 2017)
- “After a lifetime of hiding, gay refugees seeking protection in Canada are expected to prove their identity” (The Globe and Mail | April 2017)
- “Canada’s asylum system re-victimizes LGBTQ refugees” (The Star | September 2015)
- “‘On what grounds?’ LGBT asylum claims in Canada” (Forced Migration Review | April 2013)
A popular destination for LGBT Africans seeking refuge outside of their countries of origin, South Africa positioned itself as an early global leader in the establishment of LGBT legal rights and protections. Though the most progressive African nation in this respect, the country has nevertheless been criticized for the legal process through which it puts LGBT asylum-seekers, including reliance on temporary permits to defer long-term status provision and intimidation and credibility issues in the interview process.
- Refugee Status and Asylum (Department of Home Affairs)
- PASSOP: LGBTI Refugee Project (People Against Suffering Oppression and Poverty)
- “A Dream Deferred: Is the Equality Clause in the South African Constitution’s Bill of Rights (1996) just a far-off hope for LGBTI Asylum Seekers and Refugees?” (PASSOP + Open Society Foundation for South Africa | June 2012)
- “Feature: Is South Africa failing gay asylum seekers?” (PinkNews | June 2012)