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Wednesday, 6 April 2011

Major development on LGBT asylum protections at the European Parliament

Sylvie Guillaume, french socialist member of t...Sylvie Guillaume image via Wikipedia

By Paul Canning

Members of the European Parliament voted today to "modernise" the EU-wide system for examining asylum claims and "bring more fairness for LGBT asylum‑seekers". Among the measures it adopted, the definition of groups of asylum-seekers 'with special needs' was updated to include people fleeing persecution based on their sexual orientation or gender identity.

The Parliament voted in favour of a series of amendments contained in a report drafted by French centre-left MEP Sylvie Guillaume (S and D, Socialists and Democrats) that guarantee that lesbian, gay, bisexual or transgender people seeking asylum in the EU would receive particular attention.

The measures include:
  • providing expert advice to asylum officials on sexual orientation and gender identity; 
  • protecting claimants’ privacy; 
  • guaranteeing that physical examinations fully respect human dignity and integrity, for instance in cases involving minors or transgender people; and 
  • ensuring that applications by LGBT asylum-seekers are not ‘fast-tracked’ for removal to their country of origin.
In a press statement issued by the European Parliament's Intergroup on LGBT rights, Sirpa Pietikäinen, a Finnish member of the centre-right European People’s Party and Vice-President of the Intergroup, commented:
“I am particularly proud that my centre-right colleagues agreed on the need for special protection, regardless of their general position on asylum. Lesbian, gay, bisexual and transgender people fleeing countries such as Iraq, Uganda, Honduras or Indonesia must receive particular protection taking into account cultural sensitivity. This is a major step towards fully complying with our engagements under international asylum law.”
Portugese MEP Rui Tavares, Civil Liberties Coordinator of the left GUE/NGL political group and Vice-President of the LGBT Intergroup, added:
“The European Parliament is showing that asylum rules need updating to reflect reality: 76 countries criminalise homosexual acts, and seven foresee the death penalty (maybe eight soon with Uganda). I regret that other progressive provisions did not pass, but today’s text will ultimately bring more fairness for LGBT asylum‑seekers.”
The text adopted today is the European Parliament’s formal position at first reading. Asylum rules will effectively be amended once EU governments examine the text and conclude an agreement with the European Parliament and the Council of Ministers. It is understood that both want this legislation to be passed this year but some governments may be reluctant to support all of the LGBT asylum-positive amendments. In particular, the amendment suggesting that LGBT asylum-seekers are not ‘fast-tracked’ for removal is likely to be resisted by a number of governments. Earlier this year, the British government rejected suggestions that LGBT asylum seekers be protected from 'fast track', as some other groups of vulnerable asylum seekers are.

UK Conservative MEPs abstained on the final vote 6 April alongside fellow ECR group members and have made no statement yet on it. However they have previously spoken out against the EU effort to standardise qualification rules and asylum procedures.


Opposition to elements of the resolution will also come from the largest conservative grouping, the EPP. However they note agreement "amongst all groups" in the parliament on "the careful treatment of people with specific needs."

It is expected given the centre-right's support for the LGBT related amendments that most should survive the coming negotiation with governments on the overall harmonisation package.

EU-wide asylum protections for LGBT will also be the subject of a European Court of Justice (ECJ) case this year, following the referral by a German court of an Iranian case. His case has been rejected by the German authorities, with them arguing that he should not face any persecution as long as the Iranian authorities do not know about his homosexuality. This 'discretion' argument is the same one rejected by the British Supreme Court in a landmark decision last year which is expected to influence the discussion at the European court.

Claude Moraes, Deputy Leader, European Parliamentary Labour Party, told us that Labour MEPs, together with the rest of the S and D Group, voted for the amendments and said that they "represent a big improvement on the current legislation."

LibDem European justice and home affairs spokeswoman and MEP for London Sarah Ludford said that:
"MEPs have rightly backed a reform of EU asylum law so that officials handling refugee applications would need to be trained in awareness of LGBT issues and instructed to seek expert advice when necessary. This should greatly improve the sensitivity and care with which people seeking recognition as refugees fleeing persecution on grounds of sexual orientation are treated."

"People subject to gross discrimination, harassment or physical threat could have good reason to flee their home countries, but may be very wary of talking about their sexuality with strangers. Claims can only be dealt with fairly by fully trained staff."
This sort of training is the same as that proposed by the European Commission proposed for other vulnerable groups of asylum seekers such as children and the elderly, or people with disabilities or mental health problems.



The amendmentsILGA-Europe's comments
AM 13: Definition of "applicants for special needs" A clear reference should be made to applications relating to persecution on the ground of sexual orientation and gender identity, for the following reason: the definition proposed by the Commission is not an open definition. It provides a closed list of cases where asylum seekers may be considered as "applicants with special needs".
AM 16 and 17: Training programmes for the personnel examining the
applications
The training programmes should include all the cases where asylum seekers can be considered as "applicants with special needs". Amendment 16 is consistent with the definition of "applicants with special needs" (see amendment 13). Amendment 17 refers specifically to sexual orientation.

AM 29 Instruction and advice to the personnel examining applications
The personnel examining applications and taking decisions should be instructed and have the possibility to seek advice, whenever necessary, from experts on particular issues, including gender or sexual orientation issues.
AM 33: Disclosure of particular circumstances of a person to members
of his/her family
This paragraph lists cases where Member States should not take one single decision (case of a claim made by an applicant on behalf of his dependants). LGBT asylum seekers can be at risk in case of disclosure of their sexual orientation or gender identity to members of their family.

AM 43: Competence of the person conducting the personal interview
This paragraph defines the cases the competence of the person in charge of conducting the personal interview should be paid particular attention. The competence of the person conducting the interview in terms of sensitivity to gender, sexual orientation and gender identity is particularly relevant.
AM 55: Granting of sufficient time and relevant support to applicants
with special needs
Various studies has given evidence that an important proportion of applicants persecuted because of their sexual orientation or gender identity face difficulties to explicitly explain their situation, for family, cultural, linguistic, translation conditions and/or trauma reasons.

ILGA-Europe successfully called for rejection of AM 101: 'Accelerated procedures and asylum seekers with special needs / vulnerable asylum seekers', saying:
This amendment aims at allowing the Member States to make use of an accelerated asylum procedure in the case of asylum seekers with special needs and vulnerable asylum seekers, in all the situations where accelerated procedures may apply to other asylum seekers. This is not acceptable.

On the Proposal for a Directive of the European Parliament and of the Council on Minimum Standards on Proce...
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