This is a draft translation of the article written in Dutch for the book 'Sex and stigma over grenzen heen', W. Peumans, 2011
The work ‘Sex and stigma beyond boundaries – an ethnographic study of homosexual and lesbian immigrants from the first and the first and a half generation in Flanders and Brussels’ is about the stigmatized sexual orientation in relation to migration. The reading that had to be done for the method used was fascinating and resulted in a contribution on the specific difficulties that arise when sexual orientation is the main reason for asylum application.
This article could not have been written without the many asylum applicants, lawyers and social workers whose tenacity and engagement ensured the respect of the fundamental rights of human beings and the respect of the access to justice on the basis of the Belgian Alien Law. In many cases the respect of the fundamental rights of human beings during the asylum procedure was being tested and elaborated in caselaw where sexual orientation was insignificant. Hence, LGBT asylum applicants are indebted to heterosexual asylum applicants and their entourage.
The openness and willingness to share stories and experiences on asylum applications where sexual orientation was indeed significant in a publication on ‘Sex and Stigma’ is in turn a contribution to anchor the respect of the fundamental rights of human beings within the Belgian Alien Law. In this contribution, the term LGBT asylum applicants is used consistently. The term ‘homosexual’, which in the jurisprudence on LGBT asylum claims is still most used, dates from the period when another sexuality than heterosexuality was pathologised and described with medical terms. This term is not part of the self-identification terminology of the social group referred to (Budd 2009:2).
The challenges and views treated in this article are inspired by the experiences of LGBT asylum applicants and their allies in their search for protection of their rights. The term allies is broad and as can be derived from the title, the authors are not taking position as to whether the government is by definition the enemy nor as to the opinion that LGBT asylum applicants are disadvantaged compared to asylum applicants without sexuality-related reason.
In the past few years, the Belgian authorities have shown lots of goodwill regarding the respect of the principle of equality and of non-discrimination when treating asylum applications on the basis of sexual orientation, especially the Commissariaat Generaal voor Vluchtelingen en Staatlozen (CGVS), responsible for the determination procedure and thus for the assessment of credibility. We met on our way, many asylum applicants who threw away their chances by presenting themselves and the story of their flight in a questionable manner.
The main question in this contribution is whether today’s goodwill could be the basis of tomorrow’s new paradigm. This question focuses on the difficulties and challenges when assessing the credibility of a LGBT asylum application.
This article does not reveal elements from the private life of the asylum applicants, not even anonymously. The focus is on the determination process and the possibilities and perspectives to conceive the status determination in such a way that LGBT asylum applicants receive the optimal chances to underpin their asylum application in a context in which the CGVS is also empowered to take responsibility for the procedures and references used to judge one’s credibility. The trust the asylum applicants had in the authors to share their story and experience is thus gratefully used to feed a constructive dialogue on the assessment of credibility.
Are LGBT asylum applications more complicated than other applications?
It would be unfair towards the people behind the asylum applications that are very complicated and sometimes very painful and that are not gender-related to merely assume that a LGBT asylum application is more complicated than other applications. There are however some differences worth mentioning. There are also similarities, for instance the CGVS is authorised to refuse the status of refugee to asylum applicants because of lies in their statements or because of lack of co-operation.
The problem of LGBT refugees starts when in their country, the homophobia and criminalisation of homosexuality institutionalised by the state becomes so serious that the individual person has a well-founded fear of being persecuted as soon as he claims liberties and expressions to implement his gender or sexual identity. Even when this homosexual person does not dare to claim his right to live his identity this is an attack on human dignity.
During the determination process this person will have problems to produce evidence of the well-founded fear of being persecuted or even to prove plausibly his (homo)sexual orientation.
In the entire world there are still 76 countries in which homosexuality is considered to be illegal and hence punishable. In five of these 76 countries homosexual activities are punished with the death penalty (Ottoson 2010: 45).
The young person who is attracted to persons of the same gender in an environment where homosexuality is banned from the public and private atmosphere by means of taboo, criminal law or religion grows up without any reference based on human dignity to identify or describe his/her feelings and desires.
‘Some cultures use strongly disapproving words often drawn from religions (or their interpretation). The monotheistic religions refer to the people of Lot who were destroyed by a rain of stones because of their sinful life. In the texts these people are associated with sodomy, rape, debauchery … For the homosexual person this is hard and he is consequently too embarrassed to pray and too afraid of punishment, in this life and the next’It is not uncommon that someone tells a quite different story during the asylum procedure in order to legitimize his request to be protected. ‘Homophobia can also backfire: this is called interiorised (or internalised) homophobia, which sometimes results in a disgust of one’s own deepest feelings and the experiencing of a sorrow that can cause lots of damage not only on the affective skills but also socially and professionally’ (Hermans 2009: 5). Hence, persecution of homosexual people can take very deeply rooted forms of culturally embedded discrimination and stigma.
(Monnheim 2009: 32).
For someone having few or no positive references as far as accepting his sexual identity is concerned, the decision to hide this when requesting protection is sometimes very obvious and very logical. Moreover, in countries where homo rights are fringed, authorities also limit other liberties and rights (Hermans 2009, 22). Hence, the temptation to seek protection with a constructed story without any sexual connotation is even greater.
For LGBT asylum applications the CGVS has to reinvent and innovate the interpretations of persecution and which forms persecution can take place (unsurfaced persecutions). In some countries the climate regarding LGBTs is so threatening and the authorities are really so repressive that proving the well-founded fear for persecution in front of the CGVS shifts to proving the fact one is LGBT. A LGBT asylum applicant coming from a country where intense and broadly present discrimination and persecution of homosexual persons is common knowledge at the CGVS level, has to convince the CGVS that he/she is indeed homosexual, rather then to proof discrimination and persecution exists in his personal situation.
Asylum applications on the basis of sexual orientation are specific since a determination procedure restricted to a mere analysis of actual facts and events cannot be applied. This is not only true for the element “well-founded fear” where a subjective estimate is always essential but also for the inalienable characteristic “to belong to a specific social group”.
‘The several problems LGBT candidate refugees encounter on their way to legal recognition firstly occur in the atmosphere of the definition of the homosexual as a separate subject during the assessment of credibility. The homosexual orientation or its absence will have to be based on actual circumstances proving the objectivity of the homosexual orientation. The candidate refugee relying on his/hers quality as a member of the ‘social group’ of homosexual people has to prove this with actual elements underpinning the objective plausibility and truthfulness of the subjective claim’It appears from UNHCR directives and jurisprudence in general that a member of a ‘social group’ is not supposed to actually know the other members of this same group. There is no cohesion criterion: it is all about a definition on the basis of common and inalienable characteristics, not on the basis of common social activities (UNHCR/GIP/02/02, II,B,§15,16).
(Gérard 2009: 294).
In recent jurisprudence, neither the criterion “social visibility” does apply for a specific social group. In the Benitez-Ramoz case in 2009 in the United States the expression “specific social group” was extended to former gang members (often from South American countries) fearing persecution. In his judgment, the judge explicitly destroyed the criterion of ‘social visibility’ that was used as measure for the belonging to a social group in former decisions.
And to complicate matters even more: not every victim of homophobia causing a well-founded fear for persecution considers himself/herself homosexual or is homosexual.
‘Homophobia is stigmatizing or rejecting people because of their sexual orientation. It concerns homosexual and bisexual men and women but also anyone who is experienced as such whatever the acual sexual preference’In the Netherlands it is described as follows:
‘It is also pointed out that if the asylum applicant is not actually homosexual but that it is plausible that he/she is considered by the authorities as such and that persecution is taking place or will take place, the asylum applicant is also to be considered a refugee’Is it more difficult to assess the credibility of a LGBT asylum applicant?
(Decision of the Staatssecretaris van Justitie of 10 June 2009).
In this complicated matter it is not possible for the receiving governement(al service), in this case the CGVS, to merely accept a declaration concerning the sexual or gender identity. The LGBT asylum applicant does not only have to convince them of his well-founded fear for persecution but also has to prove with credibility that he/she belongs to the social group of people with a stigmatised sexual identity. Even the LGBT asylum applicant who does not fulfill the cohesion criterion nor the social visibility criterion will have to overcome this challenge in a positive manner if he wants to be protected.
A sound suspicion on the part of the CGVS of persons exploiting the asylum procedure is justified as long as the externalisations of this suspicion are aimed at optimising the procedure for LGBT asylum applicants in a professional manner and with the best intentions (see Budd 2009: 84). Sexual orientation as a motive for asylum is a growing phenomenon, but at the same time the attraction of the motive for persons who cannot claim protection under the Geneva convention is also increasing. It cannot be denied that certain asylum applicants have discovered the sexual orientation theme as a possibility to produce a (borrowed) asylum story that may be accepted even though they are heterosexual.
There are no external characteristics or objective methods to verify somebody’s sexual orientation. Assessing the credibility or the truthfulness of an asylum applicant claiming to belong to this social group is only possible on the basis of some presuppositions on ‘what it means to be homosexual and how this is reflected in the life of a person or in his/hers reaction to situations and answers to questions’. Hence, not only must be assessed whether somebody has actually a well-founded fear for persecution but the objective criterion as to what led to this fear must be subjectively assessed.
The challenge of the determination process is that the truthfulness of a vulnerable person from another country must be assessed whereas an initially wrong assessment may endanger the integrity or the life of an individual.
The reality of the determination process is that there are indications that a convinced liar is better in sounding credible than an unsure and doubting truth seeker. In his article ‘Is Truth in the Eye of the Beholder?’ Kagan describes this ‘incentive to lie’ or how "professional” liars have more chances than honest asylum applicants (Kagan 2003: 367-373).
The assessment of the asylum application at the CGVS essentially happens on the basis of two criteria: on the one hand an assessment of the truthfulness or credibility of the declarations made by the asylum applicant and; on the other hand the application of the criteria proposed by the Refugee Treaty and the clauses on subsidiary protection.
The burden of proof relies entirely in the hands of the asylum applicant and the “Commissaris Generaal” has a lot of possibilities to grant the asylum applicant the benefit of doubt.
The external credibility test is about testing the plausibility of the situation. For simple matters, the CGVS has enough sources at its disposal to assess the external credibility. But in the case of LGBT asylum applicants from countries where homosexuality is prosecuted and where such matters belong to the underground this is sometimes a problem.
Apart from the Country of Origin Information (COI) there is a multiplicity of information and documentation the CGVS is not aware of.
For instance, Arezki describes in a documentary called ‘Silent Stories’ (Phlypo and Vuylsteke 2010) the environment he knew in Algiers as ‘kinkier’ than what happens in Brussels. During a meeting at the CGVS with an activist of gay rights from Cameroon in the presence of one of the authors of this contribution, a adjudicator found it rather strange that someone who had already been a victim of aggression in the street continued to dress as a woman and to put on make-up to go out in gay circles (Beddeleem and Mandeng 25.01.2010).
This shows the main problem of adjudicators: the paradoxes of living (surviving) in a society that criminalizes homosexuality. Moreover, the questions asked prove that the adjudicator had lots of solid COI from human rights reports.
The scarcity of information concerns the entire amalgam of information and documentation that makes it possible for the adjudicator to have a realistic image of the underground LGBT scene in a certain city and hence of the situation in which the asylum story unfolds itself, for instance the local scene or the underground network.
This is a circumstantial handicap for both parties when an authoritative institution such as CGVS involves in assessing the external credibility of a helpless individual since the real situation of surviving in a homophobic country for the concerned individual is often an accumulation of paradoxes that are inconceivable for third parties, knowing that paradoxes are key indicators for the institutions adjudicators to judge one’s credibility.
The internal credibility test or the integrity concerns the credible and coherent perception . At the beginning of the interrogation at the CGVS the asylum applicant is systematically reminded of his/her obligations. The asylum applicant is requested to tell the truth. The individual credibility is crucial. False or incorrect declarations may result in a rejection of the asylum application (CGVS, 2008: 13).
The assessment of the application as far as internal credibility is concerned is often an assessment of the LGBT asylum applicant. An implicit analysis of internal coherence, the sense for detail, the degree of vagueness or apparent contradictions, the willingness to cooperate, the cohesiveness and the capacity of telling a story chronologically.
The advantage of the liar is that the external credibility has already been objectified: he constructed his story (or had it constructed) on the basis of externally disposable and plausible sources. Since he does not have applicable experience of well-founded fear for persecution, he constructed a logical and detailed story bearing in mind the criteria of the convention, chronology and coherence.
Moreover he embeds the story in his own life story and chronology in order to be able to turn to his own past life for apparently irrelevant details such as for instance ‘the college campus’ where the facts took place.
The sincere LGBT asylum applicant had never told his story. For the first time he is telling what happened to him, how it started or when the people in his environment started to change. His story is not yet modeled. His starting point is determined by his emotions and not by an expected or objective chronology and his interpretations on when the problem really started, of became a life-threatening issue, is different from what an objective observer would indicate.
Some LGBT asylum seekers has been living for many years pushing their limits and their interpretations of what means safety and freedom to their situation.
The person taking his chance with a constructed story has the same COI as the people from the CGVS and it is unlikely that elements will turn up in his story that may cause confusion. Besides, he himself has full access to the sources where he got these elements. This is not the case for the sincere LGBT asylum applicant telling his spontaneous story to the adjudicator.
Dienst Vreemdelingenzaken) and for the CGVS. This fear is reflected in the interaction with asylum applicants both in bad as in good faith.
For the applicant in bad faith this interaction based on distrust is normal and it sharpens his need to win the challenge. For the applicant in good faith this interaction is discouraging and confusing. His reactions to these signals are also conditioned by his past, for instance experience with threats, confrontations with the police or the army and a broken trust in the authorities (Hermans, 2009: 22).
In the interaction with a suspicious adjudicator the liar is better prepared thanks to his emotional distance. It must be specified that the adjudicators of the CGVS are in most cases only suspicious in a legitimised sound way during the interrogation and are very impartial at the beginning of the interrogation.
Over the past years the CGVS has made lots of progress in eliminating all the elements that arouse suspicion between the CGVS and the asylum applicant. Since the reform of the asylum procedure the CGVS is no longer the appeal body where, in most cases, the asylum applicant has to defend himself against a negative first decision made by the DVZ. This made it possible to upgrade the position of the asylum applicant at the beginning of the interview.
The asylum applicant has to defend his application on the basis of a well-founded fear and is therefore facing an independent and unprejudiced adjudicator. At the DVZ there is still a lot to be done as far as the trust between the LGBT asylum applicant and the office is concerned. The possibility to create trust is much more difficult given the number of supervising tasks this office has to carry out (for instance, checking documents, sorting double applications, taking finger prints).
Blaming the adjudicator’s exaggerated suspicion for an interview that went wrong is in our opinion a caricature and a non-existing presentation of the facts. Gaining confidence and creating a climate in which someone is able to tell a delicate story in a coherent manner is not a simple task.
There are also lawyers who without much critical reflection escort their clients to a negative decision (Hermans 2009, 22). This is the case when they are not sufficiently aware of the fact that sexual orientation may be an important motive to leave certain countries, when they do not sufficiently know the context, when there is no relation of trust with the client which is necessary for the latter to let him tell his real story.
Is being a LGBT-visible?: Quality of the assumptions
In his article ‘Refugee Credibility Assessment and the Religious Imposter Problem’ Kagan present a pattern to assess the quality of a credibility assessment in the case of religious matters. His starting point is the impossibility to ascertain in an ultimate manner whether someone believes in God or not (Kagan 2009: 9-11). The way he describes the challenge is an applicable approach for analyzing the credibility assessment in LGBT asylum applications.
The difficulty with LGBT asylum applications is that the underlying question differs from the one in uncomplicated asylum applications.
In the classic pattern the asylum applicant states an allegation. The adjudicator then has to ascertain whether he believes the asylum applicant’s allegation in relation to the determination process or not.
When the adjudicator considers the allegation to be unbelievable the asylum applicant has the possibility to try to objectify the truth of his allegation with elements of proof or before an appeal body. The adjudicator does not have to judge the truth of the facts, he has to asses whether the asylum applicant has made it plausible that the facts are considered to be true in relation to the asylum application (UNHCR 12/1998: III,§11).
When someone puts forward that initial intimidation by the authorities was a crucial element for fearing persecution, the adjudicator has to assess whether he assumes that such a fact actually took place. During the interview the asylum applicant has the possibility to add elements such as the fact that the intimidation was later followed by an arrest and the adjudicator will eventually assess the credibility on the basis of all the facts (see figure 1).
Figure 1. Uncomplicated credibility assessment
Uncomplicated credibility assessment
Asylum applicant states an allegation (I) to prove his well-founded fear for persecution.
I was physically intimidated
Credibility (G) = we assume that (I) took place
We accept that A was intimidated.
However when a person claims a certain identity, for instance “I am Jewish”, the adjudicator has to fall back on an explicit or implicit judgement of what it means to be Jewish. When the adjudicator wants to verify the allegation of the asylum applicant by assessing whether the person is actually Jewish he finds himself in a controversial position.
The final judgement highly depends on subjective faith elements: does a Jew have to have a Jewish mother, does a Jew always have to eat kosher and respect the sabbath, who can convert someone to Judaism and how does this happen? The only thing that can be stated objectively is that even the Jews are not unanimous about the answers to these questions.
When an asylum applicant maintains that Mohammed was the last prophet or that the Book of the Mormon is a holy book it is impossible to assess if this is true or plausible since this would mean an infringement of the freedom of religion and a secular judgement of a religious matter (Kagan 2009: 10). When one claims to be Jewish the adjudicator can consult sources and if necessary rabbis but it is very possible that this will result in an endless discussion.
In these matters the credibility test confronts the adjudicator with ambiguity of a religious identity and religious matters and this in a context where the adjudicator’s assessment is in fact a confirmation of the power over the destiny of an individual, thus almost a view from the divine eye.
In this complicated situations it may be possible that a procedure that was initially meant to protect victims of religious repression compromises the neutrality of the receiving country and interferes with the religious freedom. Or in other words: ‘the act of definition entails exclusion or inclusion’.
When the adjudicator uses a restrictive concept of the identity concerned, refugees with a well-founded fear for persecution may feel forced to conform to the orthodox definition of the adjudicator in order to avoid rejection (Samahon 2000: 2217). The recognition of the right of self identification and its importance for the members of a certain group by the adjudicating body against the use of a restrictive definition of a certain group may be the difference between offering protection and rejecting the request to be protected.
Mutatis mutandis Kagan’s reasoning also applies to persons submitting an asylum application on the basis of sexual orientation or gender identity. When confronted with such an application, the adjudicator does not have objective methods to validate the claimed identity. Any attempt to do so may be considered to be controversial, to be more close to discrimination compared to heterosexual applications or to be an infringement of existing rights concerning the respect of the individual privacy that were more recent acquired than the status of refugee.
Until now there has been few research of the question patterns and the interrogation techniques with which the claimed identity is validated. The answers and an analysis of the facts usually gets the most attention.
(Dauvergne and Millbank 2003: 299).There are no material nor actual elements to check the underlying question: is someone gay. As far as homosexuality is concerned it is impossible to decide with certainty whether someone belongs to the social group or not because the inalienable characteristic cannot be ascertained objectively.
In practice the interrogation is hence a difficult exercise between equal treatment and determination of the presence of an inalienable characteristic. Like with the person alleging to be Jewish the adjudicator has to make some assumptions on what it means to be gay in order to assess the credibility of the asylum applicant. And these assumptions or presuppositions are the Achilles' heel of the credibility assessment (see figure 2).
Figure 2. Complicated credibility assessment
Complicated credibility assessment
Asylum applicant states an allegation (I) to prove his well-founded fear for persecution .
I am Jewish.
I am gay
Credibility ≠ we accept that (ID) is true.
We have no objective means to check the truthfullness or credibility of this allegation.
We make assumptions on what it means to be Jewish or gay in order to critically inquire the allegation
The asylum applicant answers our questions on his identity claim
Credibility = coherent answers to questions
We assume that the asylum applicant is Jewish or gay.
The assumptions on what it means to be Jewish or gay are not verified. Wrong or on stereotypes-based assumptions result in a serious disadvantage for the asylum applicant who has to secure his credibility. When it is concluded that there is a lack of credibility, the applicant will be forced to defend himsels on the basis of the answers and facts he provided. The questions asked are rarely analyzed, let alone juridically judged.
Apart from the comparison of asylum applications based on religious matters, there are two more comparisons that help clarify the challenge of assessing LGBT asylum applications.
On December 10 2009 Rody Alvarado from Guatemala got political asylum in the United States after a juridical contest that lasted 14 years. This verdict was a milestone in the expansion of the notion ‘to belong to a specific social group’ to the group of women who ‘do not live in a society that protect women against domestic violence.’
From the moment these victims of domestic violence are considered to be a specific social group it is theoretically possible to examine the equal treatment. The problem then is in which degree the adjudicator expects that the interrogee provides elements from his private and intimate life to prove that he belongs to a specific social group.
Since there are no objective methods to verify somebody’s sexual orientation, the adjudicator is only allowed to ask questions on the intimate privacy as long as they are necessary for assessing the well-founded fear for persecution on the basis of an inalienable characteristic. Any additional question merely asked to assess the physical and social ties with a social group may be considered discriminatory.
When the adjudicator considers it necessary for the progress of the determination process to validate whether a specific (homosexual) relationship ever existed, chances are that a LGBT asylum applicant is discriminated. Will the adjudicator confronted with an asylum applicant or a victim of domestic violence ask the same kind of questions on the intimate privacy to verify whether a relation really existed?
A simple example is the question: ‘did you have regularly sex?’ Indeed in analogy with other asylum applications, the adjudicator has an arsenal of questions at his disposal to verify the existence of a relation that do not enter the intimate privacy and if he does not do this for a victim of domestic violence but indeed for a LGBT asylum applicant the latter risks being discriminated.
Given the importance of the examination of elements of proof it is obvious that such questions may be asked when they are relevant and when there are no other options to validate certain allegations.
The second comparative example of equal treatment are the asylum applications from albinos who have to leave their country because of existing taboos that result in a well-founded fear for almost every albino.
In the case of the albino the adjudicator sees the direct cause of this well-founded fear: certain phenotypic and inalienable characteristics indicate that the applicant belongs to a specific social group. It is improbable that the adjudicator uses the argument that the albino concerned does not know other albinos, is not a member of a self-help group for albinos or never attended a meeting on this subject. The inalienable characteristic is sufficient and the the adjudicator accepts the principle that social coherence within that group is not a criterion.
The homophobic climate in some countries and the climate which is for albinos the immediate cause for a well-founded fear are sometimes a rather comparable mix of religious and traditional belief systems and politicised power groups legitimizing violence against individuals. The difference between the homosexual’s position during the interview and the albino’s position is that in the albino’s case the adjudicator is able to immediately determine the inalienable characteristic and that in the homosexual’s case he has to ask delicate questions based on assumptions to determine this inalienable characteristic.
Should it turn out that these practice of questioning results in a serious difference between the initial position of the LGBT asylum applicant and the initial position of the albino asylum applicant there is effectively a problem of equal treatment.
The absence of objective elements for the inalienable characteristic in LGBT asylum applications has its consequences. There are hardly absolute judgements on the credibility of the sexual orientation in the decisions of the CGVS. Hence it remains difficult to make legal and jurisprudential progress.
To make a decision on someone’s credibility is a very difficult exercise. It is difficult to explain rationally why someone believes someone or not. Adjudicators may trust their feeling but that does not include that “feeling” is sufficient to make a juridically defendable decision.
According to Macklin there is a tendency to avoid that negative decisions are explicitly based on credibility even though this is the main reason for rejection (Macklin 1998). Basing the negative decision on another ground for rejecting the asylum application, a ground for which there are more objective elements of proof in COI or in human rights reports, is a sign of this tendency to use would-be objectivity.
Another sign is to assess that the asylum applicant did not succeed in giving a satisfying answer to the burden of proof. The most frequently occurring manifestation of this strategy is the ‘trap of false confidence’ in which the adjudicator pretends to know what goes on in the head of others when making choices and bases his decision on this knowledge.
A first example of the ‘trap of false confidence’ is a case of a Philippine in which the adjudicator pretended to know that the death threats were not caused by his political opinion but by the fact that he was an informant.
A second example is the case Campos-Guardado in which the decision-making was based on the allegation that the rape of the wives of political opponents by soldiers was not caused by political opinions but by sexual desire.
In both cases the adjudicator puts himself in the place of a third party to decide on the motive for a specific action (Macklin 1998).
If part of the decision-making of the CGVS is based on assumptions and these assumptions are used to examine the credibility the entire process from before the assumption till the result of the assessment has to be looked at critically. The way in which these assumptions are made must stand the test with other legal principles.
In an asylum procedure in which the asylum applicant who appeals against a decision can only defend himself against the interpretation by the adjudicators of information he gave himself, legal progress of the protection of the rights of LGBT asylum applicants in the procedure is only possible by accident. If however in the appeal procedure, the entire process including the reference frameworks and scientific information on which the assumptions were based are re-investigated, a perspective is opened to anchor the guarantees for the assessment of LGBT asylum applications structurally in the practices of the CGVS in a way that exceeds the individual adjudicators.
There is goodwill
Over the past years the CGVS made lots of efforts to treat asylum applications based on gender-related issues in a credible manner.
The concept gender in the asylum procedure refers to any issue concerning the gender, sexual identity or sexual orientation. This concept does not only cover persecutions mainly submitted by women (such as genital mutilation, forced marriage, honor killing, partner violence), but also homosexuality or rape (CGVS 2008: 36).
The CGVS gender-cel created in 2005 consists of a female coordinator and a reference person in each geographic section. There are coordinated directives for gender files and the jurisdiction of the Council for Alien law litigations and the Council of State is being centralised and followed up.
At the initiative of the reference persons for gender issues and internal ‘gender newsletter’ was started up in 2008. At the end of 2008 the first consultation between the CGVS and the Belgian LGBT organisation ‘Tels Quels’ took place and information on the experiences with LGBT asylum applicants was swapped (CGVS 2008: 36-38).
These reference persons inventorise the needs of the adjudicators within their geographic section with regard to training and information on gender-related subjects. The gender-cel contributes to unity and permanent improvement of the practice on handling gender-related files.
Since the beginning of 2009 the new adjudicators get two specific trainings apart from a general training with regard to gender: female genital mutilation (FGM) and sexual orientation/gender identity.
The first training is about cultural, medical and social aspects that should be reckoned with during the interview and the handling of the asylum application. This training also explains legal aspects in Belgium and prevention measures.
The training with regard to sexual orientation and gender identity is about the psychological, social and cultural aspects the adjudicator should reckon with during the interview and the handling of such asylum applications. In this context meetings with “witnesses” were organized in 2009 by the CGVS for the co-operators handling these files. These witnesses were militants promoting the rights of LGBTs coming from the countries of origin of asylum applicants. These testimonies mainly concerned the daily experiences of LGBTs in the countries concerned.
These meetings gave the file handlers the opportunity to ask practical and concrete questions and get a better idea of the experiences of these people and of the problems in general. In the same context the CGVS organized in 2009 a meeting between CGVS co-operators and representatives of a Belgian NGO counseling asylum applicants claiming to be homosexual during their procedure in Belgium.
Finally because of the intimate character of many stories, the adjudicators expressed the need of learning to improve the control over the interpersonal relationship with the asylum applicant as well as the necessity to get acquainted with the intercultural aspects that include these experiences and the asylum stories. A specific training day on these problems was organized for the adjudicators of the two geographical sections (Congo and Africa) who are most confronted with such applications (CGVS 2009: 10).
Moreover the CGVS has a psychological support cel, 'de psy-supportcel'. The main task of the psy-supportcel is to advise the file handler on the psychic and mental situation of the asylum applicant when this could have an influence on how the file is handled.
The advice is usually given after an individual psychological evaluation examination and followed by an extensive psychological evaluation report. The functioning of the cel was elaborated according to the current legal and deontological directives.
These efforts made by the CGVS with regard to a full and professional handling of gender-related asylum applications and hence also of asylum applications concerning sexual orientation or sexual identity prove the sincere attempt to improve the quality of the determination process in the asylum procedure.
The first paradigm: from facts to rights
These efforts proving that there is goodwill as well as the reform of the asylum procedure have contributed to the fact that the focus in gender-related files shifted from attention to facts and events to a better equilibrium between rights and facts. The right of the asylum applicant to choose the gender of his adjudicator is one practical evidence. Thanks to its open internal culture, the CGVS moreover has the possibility to assign these files to adjudicators with the same sexual orientation.
During the procedure, reference persons and lawyers witness scenes that are very rare in normal legal procedures. Only legally trained adjudicators conduct a formal, long and extensive interview that is aimed at facts without social or psychological skills training and that sometimes invades deeply into the private and intimate life of the asylum applicant.
The asylum procedure is and remains a legal procedure. Investigation by the UNHCR into the determination process indicates that a negative assessment of the credibility is for 77% of the cases the basis of a decision of refusal (Kagan 2003: 369). Despite the importance of the credibility assessment it still is for several reasons a relatively few investigated subject and relatively undeveloped aspect of the international refugee law.
Firstly, in many legal systems, the credibility assessment is a matter of facts and events rather than studying the legal aspects of it and it is therefore rarely thoroughly verified and reviewed by appeal bodies. The asylum applicant who is rejected after the credibility assessment usually defends himself before the appeal body by refuting or clarifying the facts that on which the negative decision was based. The consequence being that the standards which a credibility assessment has to fulfill are not evolving through jurisprudence in the same way as other central question of alien law.
Secondly the judicial systems tend to give less attention to the process of collecting proof and facts than to refining the legal rules (Vedtsed-hansen 2009: 700). Whilst, jurists, adjudicators and lawyers tend to look for the truth the current socio-scientific research is mostly based on the understanding that finding empiric sureties is often unrealistic (Sweeney 2009: 725).
Thirdly it is always regarded as obvious to consider the credibility assessment as a matter of subjective impressions of the adjudicators meaning that the determination eventually happens rather intuitively than after an explicit analysis (Kagan 2009: 377). The decision taken by intuition is then dressed up with elements from the story versus elements from the COI the CGVS has.
Fourthly the development of detailed directives on assessing the credibility or the truthfulness of an asylum applicant is a huge challenge. Every asylum application is unique and a simple analysis of answers given is not sufficient. The questions asked, the way in which the questions were asked and the circumstances in which the questions were asked are also important.
Vague and incoherent answers are not by definition an indication of bad intentions: cultural barriers, language and translation, psychic problems and the generally accepted restrictions of the human brain are as important (UNHCR 1995, RLS4, III).
One of the tension factors during the determination process is routine versus uniqueness. For the asylum applicant it is a unique chance, for the adjudicator and the interpreter it is more a routine. If it appears that there is too much routine during the interrogation and the beginning of the interview, the trust and the uniqueness are in danger.
Only in exceptional cases the sexual orientation or the gender identity can be proven by external and independent sources. Some LGBT activists come to Europe as a refugee after having been outed against their will by the national press of the country of origin. In these rather rare cases there are independent sources available to asses the origin and the nature of the stigma.
From the motivations of negative decisions taken by the CGVS it appears that there are several strategies to assess the credibility of belonging to the social group based on sexual orientation or gender identity. Sometimes the knowledge of the “social group” in the country of origin is probed, in other words how LGBT organize themselves in the country of origin, how/where and when they interact with each other and with society.
For countries where homosexuality is punishable it is verified how much the asylum applicant knows about the legislation. The asylum applicant sometimes also builds credibility credit by knowing and visiting LGBT activities and places in Belgium and showing that he wants to belong to the social group of LGBT in Belgium. However these same activities to show that he wants to belong to this social group may also be considered as “solicited”. Examples of which can be found in Peumans’ study.
A third recurrent element is more psychological: the LGBT asylum applicant is asked to tell his personal history, how he discovered his sexual orientation, what kind of relations he had and how he handles his orientation. Of course the CGVS also made negative decisions which had nothing to do with the sexual orientation of the person but rather with the criteria to comply with the definition of refugee.
There is very few material available on the assessment of the credibility in particular in LGBT asylum applications. Besides the general practices prescribed by the UNHCR for asylum applications based on the convention there are only four specific sections on the assessment of the credibility in asylum applications on the basis of sexual orientation or gender identity (UNHCR, 2008: 35-38). There is no comprehensive manual on how the credibility should be assessed.
The CGVS is under great pressure to offer quality interrogations to LGBT asylum applicants and is at the same time prepared to discuss the determination process with regard to these asylum applications with the parties concerned. Indeed the LGBT movements want to safeguard the chances of “sincere LGBT asylum applicants” by cooperating with the CGVS in a deontologically correct manner on the improvement of these aspects in the determination procedure that are typically LGBT related and by contributing to a correct and quality determination process.
This could lead to a first new paradigm: will the presence of LGBT asylum applicants in the procedure and the current goodwill of the CGVS lead to a shift within the determination process of unilateral attention to facts to a balanced attention for facts and rights.
The standards with which the credibility assessment will have to comply are being discussed and more and more legally sued. It is not “the question AND the answer” but all the questions asked and the question whether all these questions make it possible to come to a solid assessment that is being discussed constructively.
The openness of the CGVS and the cooperation from the LGBT movement to constructively aim at a solid interrogation offers prospects to evolve to a quality interrogation adapted to the specificity of the target group.
In this sense Peumans’ work is a handle to no longer base interrogations on facts but also on trying to understand the stigma control strategies that are used and the identity management that is conducted. The asylum applicant has the right to be interrogated by someone who knows what he is talking about even in cases where gender identity or sexual orientation is concerned.
The cooperation with LGBT movements that are active in the field of international solidarity and that have a network makes it possible to, for example, give an answer to the pressing right to be assisted by an interpreter who possesses another vocabulary than the vocabulary of “the own people” which is in most cases implicitly reproachful. The vocabulary derived from self-identification processes in several languages is less unlocked and hardly accessible for the CGVS interpreter’s system unless specific partnership are further developed.
The second paradigm: credibility, once a matter for the asylum applicant, hence also for the authorities?
Even though the asylum procedure is always about the past during the interview, the future is also important. The role the future has is rarely examined and is usually restricted to the question “what kind of persecution do you fear when you should return to the country of origin”.
There is little or no space for utopia. The directives drawn up by the UNHCR for taking an interview in order to determine the status are standardised and give a number of specific elements for categories such as minors, women and LGBTs.
However, the point of view that for every unique asylum application there are unique ideal circumstances is far away. The adjudicators’ idea that they have to protect the procedure from fakers is still rather prominently present as an essential part of the responsibility they have to take. Paradoxically there are few indications that this mission leads to an increased uniqueness, indeed recurrent strategies of interrogation are often used.
The socially accepted idea that the country will be flooded by hordes of asylum applicants is from time to time strongly present.
The ‘floodgates’ fear typical for Europe and influencing our idea about procedures dates from the Victorian period and social events such as the falling apart of Eastern Europe and the former USSR or civil wars and natural disasters may feed this idea (Panayi 2010).
a judgment by the British High Court undermining the so-called discretion test for LGBT asylum applicants. The Daily Express of Thursday July 8 2010 quotes the president of Migration Watch UK, Sir Andrew Green as follows:
‘This could lead to a potentially massive expansion of asylum claims as it could apply to literally millions around the world’If it is true that imagination might influence our decision making we owe it to ourselves to believe that there are ideal circumstances for every interview and that there is a unique set of circumstances and questions for every asylum application that makes it possible to assess that specific asylum application.
As for gender-related files the CGVS has the ambition to transcend the minimum standards. The path of only devoting attention to the credibility of the asylum applicant has been left and the CGVS prefers to actively work on its own credibility.
The use of COI is taken very seriously, since some time also as far as the available COI on LGBT is concerned. The CGVS is even prepared to consult LGBT from countries of origin to better assess the local situation. Thus it is open to an input of rather subjective information, a form of input that in practice already proved to be very valuable. In view of a better assessing of LGBT claims new forms of information gathering have come to surface that have contributed to a better understanding without constantly focusing on more objective facts.
At the moment the CGVS is in a professional way struggling with the question whether the assumptions on which the determination process is based and where the focus is on the question whether someone is actually homosexual, are acceptable to be linked up with an assessment of someones credibility.
In other words, which assumptions are adequate to establish whether someone is homosexual or not and in which context are they adequate and in which context not?
The struggle with the question which assumptions are adequate is inevitably linked to a struggle to safeguard the procedure of persons who are looking for a resident status with a borrowed story. The openness of the CGVS to carefully start a dialogue on this subject indicates a shift.
Thus the perspective of a second new paradigm is present: will the presence of LGBT asylum applicants in the procedure and the current goodwill of the CGVS cause a shift within the determination process from a unilateral attention to the credibility of the LGBT asylum applicant to a balanced attention to the credibility of the asylum applicant and the credibility of the CGVS?
Such a shift would mean that appeal bodies will also consider the credibility of the CGVS. Thus, the CGVS would not only have to answer for the quality of the conducted determination procedure, the interview and the COI-check, but also for the reference frameworks.
The use of socio-psychological and anthropological references for the interview becomes an evident necessity. There is a lot of literature on the self-acceptance process of LGBT. This information and knowledge on the accompanying stigma-control strategies in their cultural context then becomes an essential part of the baggage a government officer has to have in order to assess the credibility of an asylum applicant. The same goes for minimum views on the fluidity of sexual identity and the handling of self-definition as an instrument to conduct the determination process.
The shift from attention to the facts to rights and from credibility of the asylum applicant to credibility of the CGVS AND the assylum applicant is a process that is undoubtedly encouraged by the presence of LGBT in the procedure.
The question whether this will actually lead to new paradigms will only be answered when the trend becomes visible in manuals and in the jurisdiction of the Council for Alien law Litigations.
For the time being there is little evidence of approach on this level that the credibility of the CGVS is weighed in the balance. The few indications that it is also possible with serious attention to the rights of the asylum applicant and in a credible way, as is done by the CGVS, are nowhere else as apparent unless we mention the experts on Country of Origin Information (CEDOCA) separately because of their contribution to the credibility of the CGVS.
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Jan Beddeleem is a member of Werkgroep Internationale Solidariteit met LGBT’s (WISH).
Kenneth Mills is a member of Çavaria, an umbrella organisation of about 100 organisations for lesbian, gay, bisexual and transgender persons throughout the Flemish-speaking areas of Belgium.