Report on gay and trans people in the asylum process September 8, 2011Posted by Tomboktu in Gender Issues, Human Rights, Iran, Ireland, Justice.
Earlier this week, researchers at the Free University of Amsterdam and COC, a Dutch NGO, published a report (PDF here) on the handling in Europe of asylum claims that are related to sexual orientation or gender identity. The Irish refugess process features in that report, but I have not seen any reports in the mainstream media or Irish blogs that deal with human rights issues of what the researchers had to say about how our officials dela with lesbian, gay, bisexual, trans or intersex people in the asylum system. Below are some extracts from the study.
PAGE 7, from the Executive Summary*, on the general findings:
European practice clearly shows that national authorities in many instances rely on stereotypes when examining LGBTI asylum applications. For example, legal decisions still frequently rely on the idea that the sexual orientation of an asylum seeker is only to be taken seriously when the applicant has an ‘overwhelming and irreversible’ inner urge to have sex with a person of the same gender. These stereotypes exclude persecuted bisexuals from international protection, in addition to other LGBTI people who do not behave in accordance with the stereotypes used by decision makers. Stereotypes may exclude lesbians who do not behave in a masculine way, non-effeminate gays, and LGBTI applicants who have been married or who have children.
Furthermore, the fundamental character of the relevant human rights for LGBTI individuals is frequently denied in the asylum practice of European States. On a regular basis, LGBTI asylum seekers are returned to their country of origin because they purportedly can prevent persecution by concealing their identity. This denies, for LGBTI applicants, the fundamental notion which is at the heart of refugee law: if people have a well-founded fear of being persecuted on account of the legitimate exercise of a human right, they are entitled to international protection. To require them to renounce their human rights in order to be ‘protected’ negates the function of such rights. Similarly, LGB asylum applicants are regularly returned to countries where they have a well-founded fear of being imprisoned or sentenced to death for engaging in sexual activities with a person of the same gender. A further example is that serious human rights violations against trans people, occurring on a large scale in many parts of the world, often do not lead to asylum.
The rest of this post consists of the references to Ireland in the report.
Chapter 2, which examines how refugee authorities deal with applications by asylum seekers who come from a country where homosexuality is a criminal offence.
The Irish Tribunal refused the appeal of a Pakistani lesbian woman stating: “I accept that homosexuality in Pakistan is a criminal offence. However, it appears as if cases involving homosexuality are rarely prosecuted. In that regard I would like to refer to the US Department of State Human Rights Report on Pakistan, February 2009, in which it was stated that ‘homosexual intercourse is a criminal offence; in practice, however, the government rarely prosecuted cases’.”
In Ireland, in one case a Kenyan gay applicant was recognised by the Tribunal as a refugee because the criminalisation of homosexuality constituted prima facie evidence of State persecution on grounds of sexual orientation in that country. However, in other decisions, among which at least one other Kenyan case, refugee status was denied because criminalisation was not enforced. This suggests that the existence of enforced criminalisation may lead to recognition of LGB claimants from the countries of origin concerned.
Chapter 3, which examines asylum seekers who claim persecution or ill-treatment by non-State actors
In one Irish decision to grant the refugee appeal of a Kenyan gay man, the Tribunal referred to country of origin information that homosexuality is illegal in Kenya and that “in addition to repressive legislation gay people face stigmatisation and discrimination” and stated “in the opinion of the Tribunal this objective fact would absolve the applicant of the obligation to resort to state protection where available”. Accordingly, it was accepted that the applicant would be at risk of persecution if returned to Kenya and that he could not be expected to seek protection from the police or other state authorities. However, Irish practice is reported to be inconsistent, because in other cases it was expected to seek police protection in criminalising countries.
Our conclusion is that there is divergent state practice in the European Union on this point. On the basis of the information we have, seeking State protection even if LGBTIs are criminalised in the country of origin is required in Austria, Denmark, Finland, Ireland, Norway, Portugal, Sweden, Romania, Malta and Spain. In other Member States, seeking State protection is not required if LGBTIs are criminalised in the country of origin; this is the case in the Netherlands, France, Germany and Italy.
Chapter 4 deals with the use of “the discresion requirement”, that is, the use by an official, tribunal or other authority of reasoning that the LGBTI asylum seeker has nothing to fear in their country of origin as long as they remain ‘discreet’.
In the majority of EU Member States discretion reasoning still occurs. Examples were found in: Austria (mostly for bisexuals), Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary, Ireland, Malta, the Netherlands (despite the policy guidelines, see below), Poland, Romania, and Spain. Norway and Switzerland also use the discretion argument.
In Ireland, practice also seems inconsistent. In a refugee appeal by a Pakistani gay man, a Tribunal decision referred to country of origin information, which was regarded as indicating that gay men in Pakistan rarely revealed their sexual orientation. The Tribunal Member considered that the applicant had previously concealed his sexual orientation in Pakistan and he could do so again on his return, and found that internal relocation was an option.
In granting the appeal of an Iranian gay man, the Tribunal stated to the contrary: “One of the issues which has been raised is that while it was accepted that it is illegal to be homosexual in Iran, if people were very private or discreet, there was no problem. There can be difficulties with this when this argument is taken to its logical conclusion. I have some doubts whether there could be any obligation on a person to be so deceptive in hiding one’s sexuality or act in a clandestine manner in order to protect themselves that it amounts to a suppression of their sexual orientation. As this State, and its agencies and bodies including this Tribunal, is bound by the European Convention on Human Rights, I would require persuasive authority before imposing such an obligation on any applicant for refugee status, where that application is based on their sexuality.”
Chapter 5, which examines how European refugee decision makers apply the provision that an asylum seeker does not need international protection because they can move to another part of their country of origin — that is, they can avail of ‘internal protection’.
We found examples in which LGBTI applicants were rejected, based on an internal protection alternative in sixteen European countries. 
 Austria, Denmark, Finland, Germany, Hungary, Ireland, Italy, Lithuania, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, United Kingdom (before HJ/HT).
In an Irish decision refusing the refugee appeal of a Nigerian gay man, the Tribunal stated: “While it is accepted that state protection may not be available to homosexuals in Nigeria, internal relocation to avoid any possible threat would be an option.” The decision did not address the implications of this lack of state protection.
In nine European countries examples were found in which the applicant was explicitly or implicitly expected to move to another part of the country, and hide his or her sexual orientation or gender identity there. 
 These countries were: Finland, Germany, Ireland, the Netherlands, Romania, Denmark, Malta, Norway and Poland. Cf. a report of the UKLGIG in which 68% of the 50 researched decisions cited an internal protection alternative as a reason for denial; in 38% of the cases discretion was expected in the internal relocation alternative. UK Lesbian & Gay Immigration Group, Failing the Grade. Home Office initial decisions on lesbian and gay claims for asylum, April 2010, p. 5.
Similarly, in the refugee appeal of a Nigerian lesbian the Irish Tribunal concluded that country of origin information “indicates that there are parts of Nigeria, including Lagos, where lesbians can live freely as long as they do not impinge on the rights of others.”
In another Irish decision refusing the refugee appeal of a Ugandan lesbian, the Tribunal noted that although the applicant had a lesbian partner, “she has not been discriminated in her country of origin in any way, save, that she kept her sexuality secret. There are gay people throughout the world who keep their sexuality secret, and do not choose to declare their sexuality and/or to have their sexuality identify them.” The Tribunal concluded: “it is considered reasonable, practical, safe and not of undue hardship, to relocate in Uganda if she so wishes. This is a matter of choice for the applicant.”
Chapter 6 looks at how European authorities examine the credibility of the application for asylum. It also examines the use by the decision-makers of stereotypes of lgbti people.
In Ireland, two intersex cases were identified by practitioners. In both cases, the decision-maker accepted medical evidence from the applicants’ treating consultant confirming the applicants’ condition, such reports being accepted by the decision-makers as conclusive proof that the applicants were intersex persons. These medical reports arose in the context of ongoing medical treatment for the applicants – the reports were not required by the decision-maker, but once submitted in support of the asylum application, the reports were accepted.
Medical reports made because of the psychological or physical trauma suffered by the applicant sometimes mention the sexual orientation of the person concerned. In case of doubt regarding the sexual orientation of the applicant these reports may be used as supporting proof of the ill-treatment suffered on the basis of sexual orientation or gender identity, but not of actual sexual or gender identity. These medical reports could also support a narrative of someone who came out in a later procedure because of shame, fear, or internalised homo- or transphobia or whose credibility was in doubt anyway (e.g. in Ireland, Finland, the Netherlands, Italy). These types of reports are not objectionable, because they are not about establishing a sexual orientation or gender identity per se. This use of medical reports in such contexts can even be considered a good practice. It is to be strongly preferred that such reports are written by experts who are already treating and/or counselling the applicants as this will spare them the suffering which may be involved in undergoing a separate expert examination.
Apart from the applicant’s own testimony, witness statements are submitted and declarations or ‘attestations’ from LGBTI organisations were reported in Austria, Belgium, Cyprus, the Czech Republic, France, Ireland, Italy, Norway, Spain and the United Kingdom to solve credibility problems. The following examples can serve as an illustration.
An example of how witness statements can be useful in the wider context of a case is an Irish case. Some decision-makers proved adept at distinguishing between what might be termed ‘peripheral’ credibility findings, e.g. disbelief as to mode of travel, absence of identity documentation, failure to seek asylum in safe first country, and ‘core’ credibility issues, namely the sexual orientation or gender identity of the claimant and their fear of persecution. In one case involving an Iranian gay man, various ‘peripheral’ credibility findings were made against the applicant, including his lack of identity documents and certain discrepancies in respect of the evidence which had been given by the applicant at interview and his evidence on appeal. Nonetheless, the decision maker in deciding the case weighed these negative findings against the evidence given in support of the applicant, including oral evidence heard from a member of the applicant’s own ethnic community. The decisionmaker concluded:
“The Applicant, in the manner in which he gave his evidence throughout the whole hearing whether on direct examination or examination by the Presenting Officer, or questions at various stages during the hearing, was persuasive in relation to key matters which he stated. This was added to by the evidence of his witness who was very compelling and essentially the applicant’s case turns on this. He confirmed the two most important elements of the applicant’s case that he is an Iranian and that he is gay. When one considers what is important, all other matters become peripheral. This witness gave the impression, and I formed the opinion, that what he was saying was truthful. When pressed he was able to give very specific details. Their combined evidence was coherent and plausible. On balance I am prepared to accept that the Applicant is both credible and that he gave truthful evidence in the main thrust of his evidence. I accept that the Applicant is a homosexual from Iran.”194
Some Irish practitioners reported that homosexual applicants were questioned about the number of sexual partners and frequency of sexual relationships; this was perceived by practitioners in some cases as implying that the decision-maker had expectations of promiscuous behaviour by gay men.
In the case of a gay Ugandan male, an Irish decision maker stated “it was put to the applicant that his knowledge of homosexual meeting points, websites, clubs or rallies against homosexuality was very limited, to which he replied that he did not want to campaign for the rights of homosexuals, he was happy with [his partner] and did not need to include other people or find out how they lived. The applicant is a well educated person and it is not credible that as an alleged homosexual man he would show such little interest or knowledge in matters that affect him. This casts doubt upon the credibility of the applicant.”
One Irish practitioner reported a gay asylum applicant being asked if he was familiar with a well known gay bar in Dublin. A negative credibility finding was made on the grounds that he was not familiar with this bar; the decision-maker could not accept that a gay man living in Dublin would not have been to this bar. Similar questioning is reported from France and Romania.
PAGE 61 [Note: I have extracted an entry from a table in the original report and laid it out in three paragraphs as I cannot format the material into three columns in this blog.]
There are scores of other stereotypical notions which have been (ab)used to conclude that an applicant is not an LGBTI person. A nonexhaustive list of examples:
Some decision-makers reached negative decisions based on their own judgments of an applicant’s demeanour (i.e. whether, in the view of the decision-maker, the applicant presented as a homosexual person). For example, in refusing a refugee appeal by an Algerian gay man, a Tribunal Member stated “from his demeanour (at the appeal) I have no doubt that the applicant advanced the claim that he is a homosexual to enhance his application to be declared to be a refugee”. The basis of the Tribunal Member’s expertise to determine sexual orientation based on demeanour is not addressed.
Chapter 7 reports the findings on how tribunals, etc., treat asylum seekers who disclose their fear of perscution on the basis of their sexual orientation or gender idenity after they first apply for asylum.
In an Irish case, the Refugee Appeals Tribunal refused the appeal of a Pakistani gay man inter alia on the basis that he had not applied for asylum immediately upon arrival in Ireland but had entered into employment for a substantial period of time and only when he was arrested on suspicion of immigration offences, he applied for asylum. The Tribunal did not accept the applicant’s explanation that the reason for his delayed disclosure was that he had only begun to come to terms with his sexuality after his arrival in Ireland and after he had experienced his first homosexual relationship.
In an Irish case an application was subjected to accelerated procedures on the basis of the failure to seek asylum as soon as possible after arrival. On appeal, the Tribunal overturned this finding having regard to the applicant’s explanation of the reason for his delayed revelation, namely the impact of the persecution suffered in the country of origin (Egypt), fear of arrest and disclosure of his sexual orientation in Ireland. The Tribunal held that he had a well founded fear of persecution arising from his sexual orientation and granted refugee status.
Chapter 8 deals with how refugee authorities deal with “COI” — Country of Origin Information.
In an Irish decision refusing the refugee appeal of a Kenyan gay man, the Tribunal referred to country of origin information, stating “An article from the website ‘Behind the Mask’ mentions the recent creation of Minority Women in Action (MWIA), an organization advocating for the rights of lesbians and other minority and marginalized women in Kenya, which ‘aims to become a haven to many lesbians’ who are subjected to discrimination in Kenya because of their sexual orientation.” However, the relevance of this material in the context of the gay male applicant was not addressed.
Chapter 9 outlines some of the issues concerning lgbti people in reception centres, accommodations centres and in detention.
In some countries asylum seekers are housed in the countryside, were the local inhabitants have a low tolerance towards LGBTIs and from where it is not possible to reach LGBTI NGOs in the capital (this was reported from Austria and Ireland). Sometimes LGBTI asylum seekers are so afraid of other asylum seekers that they do not dare to mention their sexual orientation or gender identity to the asylum authorities; as a consequence they cannot be granted refugee or subsidiary protection on that ground. In some cases trans or gay people were moved to a single room. This may provide a quiet and safe environment. In many countries asylum seekers are allowed to find their own private accommodation, although in most countries they lack the financial means.
*Why do writers of this kind of report never give just a “Summary” but an “Executive Summary”? Are those of us who aren’t executives prohibited from reading them?