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Monday, 12 September 2011

Paper: Sur place claims and the accommodation requirement in Dutch asylum policy

Dutch flagImage via Wikipedia
By Hemme Battjes
In many jurisdictions, applications  for asylum by persons who state they fear persecution or risk ill-treatment because of their sexual orientation are refused on the ground that these persons should accommodate, hide their orientation, in order to escape persecution or ill-treatment. Dutch asylum law at first sight seems to be different. The Aliens Circular states that as far as appeal to the Refugee Convention is concerned, “persons with a homosexual orientation are not required to hide this orientation after return”.

At closer look, it appears that accommodation is required in case of sur place claims. A sur place claim is an appeal to (for present purposes) the Refugee Convention or Article 3 ECHR based on events or circumstances that came up after the applicant left the country of origin. As for LGBTI people, it may concern a coming out after arrival in the country of refuge or public expression of the orientation there after hiding it in the country of origin or a transgender treatment. In such cases, accommodation is required.

In this paper I will address treatment of sur place claims in Dutch asylum policy and case-law, and discuss whether this treatment is in accordance with the Refugee Convention and with the European Convention of Human Rights. As the number of cases of LGBTI people is not very great I will address also other sur place claims where accommodation is discussed, in particular claims by Afghan women who adopted a “westernized” life-style in the Netherlands, and by Muslims who converted here to a Christian denomination that requires them to try and convert others. To these categories, more or lees the same applies: the Aliens Circular states that applicants are not required to hide their westernized life-style or affiliation to a minority religion, but at the same accommodation is required if it concerns sur place claims.
When interpreting the Refugee Convention, I apply (next to the rules laid down in the Vienna Treaty Convention) both the UNHCR Handbook and Guidelines and the EU Qualification Directive as authoritative, hence not necessarily correct interpretations.
Apart from Dutch case-law, I discuss a view foreign cases – not pretending to present a comparative overview, but because those cases present valuable arguments for discussing the Refugee Convention. As to the European Convention of Human Rights, I simply follow the European Court of Human Rights. I will first discuss whether the Refugee Convention or Article 3 ECHR state special  requirements as to sur place claims (para. 2). Then I address the accommodation requirement in Dutch asylum law (para. 3). This requirement is then tested to Article 3 ECHR and the Refugee Convention (paras. 4 and 5); I end with a number of concluding observations. 

Accommodation. Sur place claims and the accommodation requirement in Dutch asylum policy
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