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Monday, 19 September 2011

Diplomatic leak shows 'cold' French opposition to LGBT asylum rights

Philippe Étienne
By Paul Canning

Leaked diplomatic cables obtained by the French news website show 'clinical' French government opposition to EU standards development for LGBT asylum seekers.

The Foreign Ministry cables classified as "RESTRICTED", are from the French representation to the European Union in Brussels, to the Quai d'Orsay, Paris Ministry offices, between June 22 and July 13, 2011. Written by various diplomats, they are all signed by Philippe Étienne, the permanent representative to the EU of France.

In April the European Parliament narrowly voted on including various LGBT asylum measures in a resolution on harmonising asylum procedures across the EU. This included expanding the definition of groups of asylum-seekers 'with special needs' to include people fleeing persecution based on their sexual orientation or gender identity.

The harmonisation proposal is now being negotiated amongst EU governments with a decision due next year.

According to a 5 July cable, "a large number of delegations" (including France) "expressed reservations" during these negotiations about LGBT being included in the 'special needs' definition.

It listed thirteen countries - France, Slovenia, Czech Republic, Austria, Portugal, Netherlands, Spain, Bulgaria, Romania, Greece, Luxembourg, Slovakia, and Sweden - as opposing inclusion in the definition. A fourteenth, Italy, criticised it while welcoming "the consideration of sexual orientation."

Gérard Sadik, coordinator of the National Commission for asylum, La Cimade, told that the Foreign Ministry's approach to the inter-government negotiations was "very homophobic."

Reviewing the cables, Rue89 described seeing a "clinical coldness with which French diplomats asked to remove some basic rights, or to prevent advances that seem obvious under international instruments."

Rue89 says France is not alone in its opposition to another provision, "which seems obvious, however, with regard to human rights", to not allow the detention of vulnerable people where it is established that their health and well-being will deteriorate.

The largest conservative grouping in the European Parliament, the EPP, which includes French President Nicholas Sarkozy's Union pour un Mouvement Populaire (UMP), has previously stated opposition to the harmonisation resolution. However the EPP have also said that there is agreement "amongst all groups" in the parliament on "the careful treatment of people with specific needs."

The measures approved by the European parliament included:
  • 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.
The ‘fast-tracked’ for removal recommendation was always likely to be resisted by a number of governments. The British government has continued to reject suggestions that LGBT asylum seekers be protected from 'fast track' - as some other groups of vulnerable asylum seekers are. In July Immigration Minister Damian Green answered a question from Green MP Caroline Lucas. He said:
"Entry to the detained fast track procedure is determined by reference to published policy. There are no plans to exclude applicants from the detained fast track process solely because their asylum claim is sexuality-related. However, published policy already stipulates that cases may enter and remain in the process only if they are amenable to a quick, fair and sustainable decision. If at the time of application it is apparent that this condition cannot be fulfilled in a sexuality-related persecution claim, or indeed in a claim with any other basis, the applicant will not be entered into the process."
A major new survey of LGBT asylum across the EU, published 5 September, found significant disparities in treatment of claims between European countries and that they regularly reject LGBT asylum applicants on the basis of prejudices and stereotypes.

"National laws still differ", Thomas Fouquet-Lapar, president of the French LGBT asylum support group Ardhis and co-author of the report's French chapter told Yagg.

The European Council on Refugees and Exiles (ECRE) has produced maps showing grant rates in general for asylum and complementary protection ranging from 2% in Ireland and 3% in Greece to 61% in Finland and 73% in Switzerland.

Some countries say that LGBT persecuted by their communities could appeal to the authorities of their own country, Fouquet-Lapar said. In five EU countries, the criminalisation of homosexuality is not considered. This is the case in Ireland, where an asylum claim by a lesbian Pakistani was dismissed because of a report which stated that "homosexuals are rarely prosecuted," despite a law against homosexuality in this country.

A very common justification for not granting asylum is that the applicant can live their sexual orientation in their countries "so long as they are discreet."

On this justification, Fouquet-Lapar says that the French National Court of asylum (CNDA) has 'evolved' and now recognises claims if "the applicant is not necessarily militant or out."

He cites the case of a 23 year old Tunisian who arrived in France at the age of 15 and who was granted asylum in 2010 despite the fact "that he discovered his homosexuality in France, while no one knew in his country."
"The French Office for Protection of Refugees and Stateless Persons (OFPRA) took the view that return to a country where he was sentenced to hide his sexual orientation was an affront to his dignity."
But not all applicant are treated this way and in other cases judges reverse this decisions.
"This is especially true for applicants who may not know that they can apply for asylum because of their sexual orientation and evoke that ground very late," said Fouquet-Lapar.
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.
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