US State department report may help Iraqi LGBT asylum applicants

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By  Bruce Leimsidor

On 11 March the US Department of State (USDOS) released its annual human rights report on Iraq. Such reports are used by asylum adjudicators not only in the US, but also in the UK and other countries of the European Union.

Unlike the UKBA’s country of origin information (COI) reports of the last few years (UKBA COI Dec. 2009), which are much more detailed and overtly supportive in outlining persecution of LGBT in Iraq and Iraqi government indifference to this situation, the USDOS report’s language concerning persecution of LGBT in Iraq is quite guarded. Nevertheless, it should be quite helpful to Iraqi LGBT requesting asylum.

Like the UKBA reports, the USDOS report makes it clear that there is, in fact serious persecution of LGBT in Iraq, and suggests very strongly that the Iraqi authorities are offering no protection to LGBT. The American report is particularly useful, however, in that it bases its findings solely on press reports, Iraqi Ministry of the Interior (MOI) data, and situations of persecution corroborated by UNHCR. The UKBA reports, while directly more supportive of LGBT, base their findings largely, but not exclusively, on reports by Iraqi LGBT organizations and international human rights organizations, such as Human Rights Watch (HRW) and Amnesty International.

While the UKBA reports are written by a domestic agency for use in determining domestic issues such as asylum, The USDOS report is a diplomatic document written by an agency charged with dealing with a foreign government. Its intended function is to improve the human rights situation in the country under consideration, and is used only tangentially in reference to asylum.

Hence, its language tends to be guarded, and it goes even out of its way to avoid antagonizing the target government or incurring criticism of bias. For example, it does, in fact, state that the Iraqi MOI considers the killing of LGBT as murder, but it helpfully goes on to say that despite many documented cases, “Authorities had not announced any arrests or prosecutions of any persons for killing, torturing, or detaining any LGBT individuals by year's end.”

It is careful to avoid anything that may be interpreted as an accusation. It just gives the facts, but the facts speak quite loudly for themselves, that the Iraqi government has done nothing to afford protection to LGBT. It is probably also because it wishes to avoid antagonizing the Iraqi authorities, that it has not depended upon information from any of the advocacy organizations, whose reports had already by roundly and angrily rejected by the Iraqi MOI.

This “just the facts” approach may, however, work to the advantage of Iraqi LGBT asylum applicants. While Iraqi LGBT, HRW, and Amnesty are widely respected, adjudicators having personal prejudices toward LGBT may question the objectivity of assertions by advocacy organizations, or even dismiss them out of hand. A 2008 report by the US based Migration Policy Institute has, in fact, pointed the serious problem of homophobic prejudice on the part of adjudicators. It states: “…immigration officers and judges are still known to consider their [own] homophobic or discriminatory beliefs in deciding the eligibility of LGBT applicants. Legal practitioners have observed that the success of their case hangs almost entirely upon the attitude — accepting or resilient — of the adjudicator.”

The author is a new contributor for LGBT Asylum News. He is Professor of EU Asylum Law at the University Ca' Foscari, Venice. He has worked as a consultant for UNHCR in East and Central Africa and is the former director of the US Department of State's Overseas Processing Entity for Refugees in Vienna, Austria.