Refugee hunger strike in Ukraine

Source: No Deportations

In Ukraine, 61 Somalians have been on hunger strike since 6 January in the Lutsk detention centre with another 15 reportedly on hunger strike in another detention centre at Chernigiv. 13 of the hunger strikers are women (seven of whom are under the age of 18). 17 of the men are also under 18

"Either they recognise us as refugees - or they say 'no' and then tell the whole world what they are doing here" said one of the hunger strikers, Sultan Haibe, speaking from the detention centre. He continues "We are not murderers. We left Somalia just to save our life." 

The hunger strikers say that one 17 year old, Abdul Karim Siyad is very ill and in a separate room. He had not been examined by a doctor until recently, but Sultan Haibe said on Sunday 15January that a doctor has now finally seen him.

The hunger strikers say they are detained in an asylum system which is profoundly unjust. They say that Somalians are always refused asylum in Ukraine, but Sultan Haibe points out that if they try to cross into the EU they are bounced back into Ukraine and detained. Only about 12 of the hunger strikers had attempted this.

The hunger strikers say that they are subject to police harassment and corruption and can be detained by the authorities for periods of 12 months if they don't have a temporary permit to stay legally in Ukraine. They say that an asylum seeker can be re-detained within a short period after release and then faces another 12 months in detention. Some of the hunger strikers have been in Ukraine for 5 or 6 years before they were detained. Some have been detained more then once.

Their demands to the Ukrainian Government are:

1) Somalian asylum seekers are granted asylum status in Ukraine.

2) They are released from detention.

3) Asylum seekers are to be provided with documents so they cannot be arrested.

4) There is an end to the police harassment of asylum seekers.

5) No asylum seeker is to face re-arrest after a period of detention.

Ukraine's asylum procedure is in chaos. The arbitrary detention of the hunger strikers is just one more way in which the rule of law is ignored in Ukraine.

Recent asylum laws created a new Government department to examine asylum applications, but failed to give it authority to act, while the old department was dismantled. As a result, asylum seekers cannot make asylum applications so they cannot get temporary residence permits and so become illegal.

Asylum seekers who were already in the system often cannot obtain an extension of their temporary permits and are therefore subject to arrest as they become illegal. No decisions on refugee status are being made and asylum appeals are postponed as the new Government department is not recognised by judges.

Even those who have been granted refugee status in the past are often not receiving their residence permits – re-issued each year - and so become illegal.

The Government has increased the penalty for being without temporary residence documents from 6 to 12 months detention. Asylum seekers in Ukraine cannot work and do not receive financial support while they await the decision on their application.

The hunger strikers ask everyone to publicise and raise support for their demands as widely and as quickly as possible. If you are in the EU, please raise this with your parliamentary representative or Member of the European Parliament as Ukraine is sensitive to EU pressure.

Related articles

• In Ukraine, returned asylum seekers face abuse (madikazemi.blogspot.com) 
• In Ukraine, claims that refugees are being tortured (madikazemi.blogspot.com)
   

Resource: Country guidance commentary

Image via Wikipedia

Source: Fahamu Refugee Legal Aid Newsletter

Mike Kaye is the Advocacy Manager for Still Human Still Here, a coalition of more than 40 organisations that are campaigning to end the destitution of refused asylum seekers in the UK.

Still Human Still Here believes that many asylum seekers who should be granted some form of protection in the UK are being refused and subsequently end up destitute. In 2010, it was estimated that around 70 percent of destitute refused asylum seekers in the UK came from just eight countries, all of which were either in conflict or had serious and widespread human rights violations. These countries were Zimbabwe, Iran, Iraq, Sudan, Afghanistan, Somalia, the Democratic Republic of Congo (DRC) and Eritrea (Still Human Still Here, At the end of the line: Restoring the integrity of the UK’s asylum system, 2010, p. 38).

Still Human Still Here’s contention that the Home Office incorrectly refuses many asylum seekers any form of protection in the UK is supported by a review of the number of decisions which are subsequently overturned on appeal. In 2010, 27 percent of appeals were allowed. That is to say that in more than one in four cases the UKBA got the initial decision wrong.

For some of the nationalities highlighted above, however, the overturn rates on appeal were significantly higher. For example, 50 percent of Somalis won their appeals in 2010 and 36 percent of Eritreans and Zimbabweans were also successful. During 2011, asylum seekers from these and other countries have continued to have an extremely high percentage of their appeals allowed. For example, 57 percent of Eritreans, 53 percent of Somalis, 38 percent of Sri Lankans and 31 percent of Zimbabweans won their appeals in the third quarter of 2011. These cases alone affected 218 individuals, causing them unnecessary anxiety and wasting considerable amounts of taxpayers’ money by forcing them to go to appeal when in many cases they could have been granted refugee status at the initial determination.

While the appeals process works for some refugees, it should be stressed that success at appeal is largely dependent on having good quality legal advice and representation and this is in increasingly short supply, particularly since the closure of both Refugee and Migrant Justice and the Immigration Advisory Service.

One way in which Still Human Still Here believes refugees could be better identified at the initial determination would be through improvements to the Operational Guidance Notes (OGNs). The OGNs outline conditions and risks to particular groups in various countries and are used by case owners as a key resource when deciding on individual asylum applications.

Several OGNs contain country of origin information and references to case law which are outdated. For example, the current OGN on the DRC was issued in December 2008 and relies heavily on the Country of Origin Information Service DRC Country Report from May 2008, which is now more than three-and-a-half years old. Since the beginning of 2009, more than 500 new applications for asylum have been made by individuals from the DRC. Decisions will have been reached on these applications on the basis of information which, at best, was seven months old. In this context, it is not surprising that the percentage of DRC appeals that are successful has risen to 34 percent in 2011 (up to October).

There are currently 30 OGNs published on the countries from which the UK receives the most asylum applications. Those countries from which there are lower numbers of applications tend to be updated with even less frequency. For example, the most recent OGN for Rwanda was issued in March 2009 and generally relies on country of origin information which was published in November 2008.

Even where OGNs are updated regularly, Still Human Still Here considers that many have inconsistencies and omissions between their conclusions and currently available country of origin information and/or case law.

For example, before an update on 15 December this year, the Somalia OGN cited a UKBA fact-finding mission as reporting ‘travel within Al-Shabaab controlled areas of southern and central Somalia was common and considered relatively safe’. It further noted that ‘everyone can move freely in south central’ and that given ‘the relative ease of travel within many areas of Somalia, it will be feasible for many to return to their home areas from Mogadishu airport as most areas are accessible’ (paras. 2.4.3 and 2.4.6).

This assessment appeared to ignore various reputable sources which note that checkpoints operated by armed militias and groups associated with Al-Shabaab inhibit passage and expose civilians to rape, violence, extortion and forced recruitment. Indeed, the United Nations Report of the Secretary-General on Somalia, 30 December 2010, noted that ‘[i]nternally displaced persons and refugees fleeing southern Somalia continued to report abuses by militias manning checkpoints before they reached safe areas, including rape, beatings and looting’ (para.33).

In order to draw attention to these sorts of inconsistencies, Still Human Still Here has published OGN commentaries, including 2011 commentaries on the most recent OGNs for Afghanistan, Sri Lanka, Jamaica, Zimbabwe, Iran, Eritrea and Sudan. These commentaries are intended as tools to assist legal practitioners in preparing appeals; we hope they will help ensure that individuals who may be at risk of persecution or other serious harm in their country of origin have a reasonable chance of getting protection in the UK.

Related articles

• Is the UK's asylum system sexist? (madikazemi.blogspot.com)

Report: Sexual minorities victims in US counter-terrorism

Source: World Pulse

By Marietta Karadimova

The U.S. government must take steps to stop women and sexual minorities around the world from becoming invisible victims of its counter-terrorism policies, according to the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law. The 163 page report — A Decade Lost: Locating Gender in U.S. Counter-Terrorism — is the first account of how U.S. counter terrorism efforts have undermined the rights of women and sexual minorities. These policies have also failed to protect women and sexual minorities from terrorism, despite the Obama Administration’s position that women’s inequality threatens national security.

“Far from making good on its promise to the world’s women, the U.S. government has bartered away women’s rights for short-term security gains,” said Jayne Huckerby, CHRGJ’s Research Director.

“From anti-terror cuts in aid to Somalia, to negotiating with the Taliban in Afghanistan, it is women and sexual minorities who suffer first.”

Based on several years of research, including extensive interviews with U.S. and foreign government officials and regional consultations in the United States, Asia, Africa and the Middle East and North Africa, A Decade Lost uncovers how the six pillars of U.S. counter-terrorism — development, defense, anti-terrorism financing, intelligence, border security, and strategic communications — include and impact women and sexual minorities. Comprehensive in its scope, A Decade Lost presents numerous examples of where the U.S. government’s failure to consider gender undermines both security and equality objectives.

Among its key findings, A Decade Lost finds that development assistance that channels money into making young men less prone to extremism is leaving women and girls behind; that anti-terrorist finance laws stop critical resources from reaching women and LGBTI organizations; that immigration bars are re-victimizing victims of trafficking, terrorism and anti-gay violence in Iraq; and that the securitization of the government’s relationship with Muslim communities in the United States — which is only set to rise with the imminent release of a new U.S. policy on community engagement and preventing extremism — is making women in those communities unsafe.

For the first time, A Decade Lost also looks at U.S. efforts to stop the pull of violent ideologies, such as in overseas “de-radicalization” programs and its strategic communication campaign in the United States and abroad.

“The U.S. government is working at cross purposes in its counter-terrorism strategy,” said Ms. Huckerby.

“On the one hand, it says that ensuring women’s equality is a matter of national security, while on the other it de-prioritizes development assistance for women and girls and cuts off funding to women’s rights organizations that are on the front lines against violent extremism in their communities. When the U.S. squeezes women between terror and counter-terror, no-one is safer.”

The Report also exposes serious collateral impacts of actions — such as targeted killings, deportation, and detention — that target men, some of which, have now persisted for nearly a decade.

“When families and communities in the United States are torn apart by detention and deportation, women are left to pick up the pieces, living in fear that if they report crimes, the government will deport them or family members,” said Lama Fakih, CHRGJ’s Gender, Human Rights, and Counter-Terrorism Fellow. “New efforts to engage Muslims do not deal with these concerns, but rather continue to locate the problem of terrorism in Muslim communities with scant regard for the consequences.”

Among the report’s recommendations, CHRGJ calls on the Obama Administration to make public its first ever policy on the role of development in countering violent extremism and release its new policy on engaging with communities in the United States to prevent extremism.

A Decade Lost: Locating Gender in U.S. Counter-Terrorism

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Report: In six EU countries refugee protection "significantly divergent"

Image by solidether via Flickr

Source: UNHCR

"Safe at Last? Law and Practice in Selected EU Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence" examines the application in particular of Article 15(c) of the EU's Qualification Directive (QD), under which Member States are required to grant subsidiary protection to persons fleeing ''serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of internal or international armed conflict."

The research has focused on the practice of six EU Member States who received together 75% of EU asylum claims in 2010: Belgium, France, Germany, the Netherlands, Sweden and the UK. The study looked in particular at the assessment of claims for protection by Afghans, Iraqis and Somalis.

The study found, among other things, that the approaches to application of Article 15(c) of the Qualification Directive are significantly divergent between the six Member States examined. In some cases, it would appear to be applied in such a narrow manner that protection is denied to many persons which Article 15(c) was originally intended to cover. In some States, it is applied to an extremely small percentage of people fleeing situations of violence and armed conflict overall.

In addition, it appeared that States are not granting refugee status under the 1951 Refugee Convention to some people fleeing indiscriminate violence who, in UNHCR's view, would be entitled to it. It is found moreover that the added value of Article 15(c ) QD compared to Article 3 of the European Convention on Human Rights (ECHR) is not clear; that approaches to assessing the level of violence required to trigger
application of the provision vary widely; and that the concept of a "real risk" is interpreted in a way that imposes a heavy burden on applicants to show they are exposed to individual risks.

Based on these findings, UNHCR puts forward nine recommendations to Member States and the EU in order to ensure that protection is granted to persons fleeing indiscriminate violence.

Safe at Last? Law and Practice in Selected EU Member States with Respect to Asylum-Seekers Fleeing Indiscri...

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60th anniversary of Refugee Convention

The 1951 signing of the Refugee Convention

NOTE: UNHCR in 2008 issued a first “Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity,” which will be updated this year. NGOs have been working with UNHCR, since June 2009 on plans for protections for LGBT refugees.Work is planned with national asylum systems to adopt the guidelines. This will be tied to training for Refugee Status Determination, again with outreach to nations to take part. Another aspect is ensuring safe environments for LGBT refugees in countries of asylum, including camps and urban settings. There's much more included a wealth of research and reporting planned work. In April Vincent Cochetel, UNHCR's representative in the United States, told a Washington DC conference that protections for LGBT refugees needed to be "stepped up."

Source: UNHCR

The Geneva Refugee Convention marks its 60th anniversary today as forced displacement becomes increasingly complex and as developing countries struggle to host the large majority of the world's refugees.

The UN Convention Relating to the Status of Refugees was formally adopted on July 28, 1951 to resolve the refugee problem in Europe after World War II. This global treaty provides a definition of who qualifies as a refugee – a person with a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion – and spells out the rights and obligations between host countries and refugees. As the legal foundation on which UNHCR's work is based, it has enabled the agency to help millions of uprooted people to restart their lives in the last 60 years.

Today, the Convention remains the cornerstone of refugee protection. It has adapted and endured through six decades of massive changes but it faces unprecedented challenges today.

"The causes of forced displacement are multiplying," said UN High Commissioner for Refugees António Guterres. "People are uprooted not just by conflict and persecution, but also by extreme poverty and the impact of climate change. These factors are increasingly inter-related."

In Somalia, over 170,000 people have fled into neighbouring countries since January, citing famine, drought and insecurity as reasons for leaving. Up to 1 million others have left embattled Libya, among them refugees and asylum-seekers, but also economic migrants seeking a better life elsewhere.

"We need protection-sensitive borders so those in fear for their lives or freedom continue to find it," said Guterres. "At the same time we need to find innovative ways to fill the increasingly clear gaps in the international protection system and to promote the values of tolerance and inclusion rather than fear and suspicion."

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UNHCR official calls for 'step up' on protection for LGBT refugees

Vincent Cochetel

Source: UNHCR

By Dasha Smith

A senior UNHCR official has called for stepped up efforts to protect the thousands of refugees and asylum-seekers persecuted every year for their sexual orientation and gender identity.

"We, along with the rest of the international community, must renew efforts to protect this vulnerable group," said Vincent Cochetel, UNHCR's representative in the United States, referring to lesbian, gay, bisexual, transgender and intersex refugees and asylum-seekers in countries of first asylum and resettlement countries.

Cochetel, addressing a Washington conference organized by the US-based Human Rights First organization, added that their lack of resources and access to safety must be a concern for everyone.

The recent three-day meeting brought together civil society groups, US government officials and UNHCR staff to discuss protection issues, best practices and the challenges faced by this vulnerable group of forcibly displaced people.

They heard about specific cases of abuse, including the story of a young Somali asylum-seeker who was kidnapped in Kenya and repeatedly raped. When the man finally managed to escape, he resorted to commercial sex work just to keep alive. His case was put forward as an example of where protection systems were failing to help people being persecuted due to sexual orientation and gender identity.

East Africa is one of many regions where homosexual conduct is condemned and criminalized – sometimes resulting in the death penalty. Many refugees are deprived of employment and housing, isolated from the rest of the community and in dire need of assistance.

Delegates heard that 75 countries in the world criminalize consensual same-sex relations, including the death penalty in seven of them. But in many other countries, prejudice against homosexuals is deeply entrenched and can lead to persecution and abuse.

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Egypt is no safe haven for refugees: will things improve? Or worsen

Source: Huffington Post

By Lindsey Parietti

Ghada El-Khafagy fled Iraq four years ago with her two young children, in a journey that took her to Jordan, back to Baghdad and then finally to Egypt, but after two weeks of an often violent uprising, this second homeland is no longer a refuge.

“Please do not ask me about how I spent the past week. It was really terrible. I spent most of the time crying at home,” the 31-year-old single mother said. “I’m afraid to go out, to see anyone. I don’t know what might happen.”

Her decision to leave underscores the desperate condition of many of the roughly 100,000 refugees and asylum-seekers living in Cairo. Facing shortages of food and fuel, marauding street gangs and tanks in the streets, many have decided to flee.

For years, Egypt has provided a new home for hundreds of thousands of African and Middle Eastern refugees, a safe haven in the middle of a tumultuous region.

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UN official: Europe is ignoring its refugee obligations

Source: UNHCR

A top UNHCR official has questioned the approach that some European countries take towards people fleeing the indiscriminate effect of generalized violence in countries like Afghanistan, Iraq and Somalia, saying it "often defies common sense."

UNHCR Director of International Protection Volker Türk, at a forum organized in Brussels 18 January to launch UNHCR's Commemorations Year in Europe, said that some asylum states maintain that people fleeing conflict or large-scale violence cannot qualify as refugees. Türk said he believed this went against the spirit of the 1951 UN Refugee Convention, adding that "protecting refugees is what the Convention is made for."

Türk, whose speech addressed protection gaps in Europe, noted that there had been debate in the European Union (EU) in the 1980s and 1990s about the "non-state agent of persecution" issue, with some countries arguing that persecution coming from non-state agents was not sufficient to merit granting refugee status. That debate was resolved by the adoption of the so-called EU Qualification Directive, which favoured a broader interpretation of persecution.

Article 15c of the document extends subsidiary protection to civilians who would face a risk of serious harm in a situation of indiscriminate violence if sent home. But this provision is couched in what Türk called the "convoluted language of political compromise" and, as a result, it remains little utilized.

Türk pointed out that despite the EU Qualification Directive some European countries still send people back to areas marked by generalized violence such as Afghanistan, where the fluid and volatile nature of conflict and the worsening situation had led to an increased number of civilian casualties, more frequent security incidents and significant population displacement.

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Refugee surge forces Berlin camp to re-open

Image via Wikipedia

Source: Monster and Critics

A surge of asylum seekers arriving from world trouble spots, including Afghanistan, Somalia, Iraq and Iran, has forced Berlin authorities to re-open a huge refugee housing site.

Only recently, government officials had considered putting the 22,000-square-metre Marienfelde Refugee Camp up for sale.

The refugees stay in plain apartments in 10 centrally heated housing blocks. During the Cold War it was the first place to stay for people escaping communism while they were starting new lives.

Between 1949 and 1990, 1.35 million people passed through the camp. Even after democracy took hold in their homelands, eastern Europeans kept arriving, along with refugees from further away.

But in recent years, the numbers dwindled and a decision was taken to close the camp. But its closure a year ago proved premature and the camp has now been re-activated. Some 125 refugees have shown up at the Marienfelde camp in the past two weeks.

Hundreds more are anticipated in the coming months.

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Video: CNN exposes the treatment of Britain's 'failed' asylum seekers

Source: CNN

By Peter Wilkinson

Failed asylum seekers must cope with intolerance, hatred and violence on the streets of Britain but they must also survive without state benefits, shelter or the right to work. Here, four people describe how they live on £10 food vouchers from the British Red Cross. All names have been changed to protect their identities and ensure their safety.

Birmingham, England (CNN) -- High up in a tower block in a grim suburb of Birmingham, central England, Shoorai feels cold and vulnerable in the storage cupboard where she sleeps and worries how she will survive the approaching winter.

The cupboard is located outside the lifts on a public corridor, which reeks of cannabis smoke. Intimidating youths lurk in its doorways. Shoorai is scared here, but she says her lonely existence here is still preferable to being sent home.

The 38-year-old sleeps here because her claim for asylum in Britain has been rejected, meaning she gets no benefits or shelter. She says she cannot -- or will not -- return to Zimbabwe, from where she fled in 2006, because "the situation was even worse back home. People were beaten ... people were killed and they were tortured."

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Uganda: The silent practice of deportations

Source: Pambazuka News

By Bernadette Iyodu



The act of deportation does not occur in a vacuum but is rather inextricably linked to the wider policies, practices and trends of the asylum process. A thorough understanding of deportation thus encompasses asylum-determination procedures, access to legal representation, the adequacy of detention facilities and the use of detention during appeal, the use of force during deportation, and the security of deportees upon their return and removal. Within these various stages of the process, the potential human rights implications include torture, both physical and psychological, family disruptions, trauma, loss of livelihood and stigma, all of which violate the dignity and rights of the persons concerned.

The recent trend reveals that the number of asylum claims in industrialised countries has steadily decreased while the rate of deportation of failed asylum seekers nevertheless continues to increase.[1] Almost all countries as sovereign entities legally reserve the right to deport illegal immigrants, but international law imposes several restrictions to this general rule, such as the principle of non-refoulement and the restrictions under the Convention against Torture.[2] Amidst a 'global war on terror' and rising xenophobia however, states are increasingly abusing these restrictions in the name of national security.

Deportees to Uganda

Once reaching Uganda, the outlook for deportees is grim at best. The Refugee Law Project has heard first-hand accounts of these experiences from deportees. One woman, having been repeatedly tortured and raped in Uganda, fled to the UK but was subsequently deported back. Upon her return, she was immediately taken to prison where she languished for nine months until a relative was able to bribe a guard. Another Ugandan deported from the UK was immediately detained for two weeks and then brought to the Head of Military Intelligence (CMI) and charged with various sham offences. She was finally acquitted one year later because no evidence was ever produced relating to these purported charges.

Currently, most deportees come from the UK, and the UK considers deportations to Uganda safe and legal due to assurances offered by President Yoweri Museveni.[3] However, the personal accounts relayed to our office match a general pattern documented by experts and journalists:

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Getting to grips with asylum removals

Image by John_Scone via Flickr

Source: Left Foot Forward

By Jill Rutter

Over the last two weeks we have seen a large number of reports and articles critical of the asylum system. The Independent Inspector of the UK Border Agency highlighted the growing backlog of unprocessed asylum claims in a report published at the end of February.

His report was followed by Nuala O’Loan’s investigation into allegations of the abuse of asylum-seekers held in detention or in the process of removal from the UK. Yesterday the media reported that the costs of supporting asylum-seekers – who are not permitted to work – had risen by 1,700 per cent over the last five years.

All these reports point to an asylum system vulnerable to misadministration and crisis. There have been some improvements in the processing of asylum claims over the last ten years – the time it takes for an initial decision on an asylum case has fallen from 22 months in 1997 to seven months in 2009. An inspectorate for the UK Border Agency and greater commitment to the integration of those allowed to remain in the UK are other changes for the better.

Nevertheless, the asylum system remains flawed and prone to backlogs. It is high time progressives took an honest look at asylum in the UK. Yet a tabloid media hostile to asylum-seekers, coupled with a powerful refugee lobby have prevented a root and branch examination of the treatment of refugees.

The latest media articles, drawn from Home Office statistics, point to a reduction in the numbers of ‘failed’ asylum-seekers who are removed from the UK and a huge increase in the cost of supporting them. In 2009, some 26,832 removal notices were issued to failed asylum-seekers, yet only 7,850 persons from this group were removed from the UK.

Many of those who are not removed from the UK receive food vouchers and basic accommodation from the UK Border Agency, a type of sustenance known as Section Four support. Ministers are very concerned by the rising costs of Section Four support.

However, an in-depth analysis of Home Office asylum statistics shows why such small proportions of failed asylum-seekers end up being removed from the UK and why the costs of Section Four support have rocketed. In 2009, some 17,805 asylum-seekers – about 73 per cent of all applicants – received an initial negative decision in the UK. Of those refusals 4,150 were from Zimbabwe and 1,080 were from Sri Lanka. Yet government has suspended removals to these countries because it acknowledges that Zimbabwe and Sri Lanka are too unstable for the return of asylum-seekers.

Some 1,070 Iraqis and 585 Somalis were refused asylum in 2009. While the UK will return them, organising flights and onward transport in these countries is logistically challenging and expensive. Failed asylum-seekers from countries such as Zimbabwe and Somalia are kept in limbo: their applications have been refused, yet we cannot send them back. It is an inhumane and costly trap. A progressive asylum policy would allow those who we cannot remove from the UK to remain here, work and contribute to their new communities.

Our government does remove those who have overstayed their permission to remain in the UK, a group that includes failed asylum-seekers. At present there are weekly charter flights to countries such as Nigeria and Afghanistan.

Frontex, the EU external borders agency, will soon be taking responsibility for chartering and coordinating removal flights. Yet progressives have given very little consideration to removals policy. Honest debate about this issue is often heavily suppressed by the open borders movement, groups and individuals who often have links with the left.

We need to get to grips with removals policy. We need to acknowledge that there are some people whose removal is practically impossible – they should be allowed to stay in the UK. We also need to confront other questions. How do we deal with those who physically resist removal? How can the activities of Frontex be made transparent and accountable? Should we have independent human rights monitors on charter flights, as some EU countries do? How do we monitor the safety of those returned to their home countries?

Above all, we need safeguards at our external borders, as many would be asylum-seekers do not make to European territory and are turned back at our external borders.

Jill Rutter works for an organisation supporting refugees and migrants and is an associate fellow of the Institute for Public Policy Research (ippr); she writes here in a personal capacity.

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How country of origin information can help win asylum cases

The Immigration Advisory Service have released 5 new manuals on how country of origin information can help win asylum cases

• The Use of Country of Origin Information in Refugee Status Determination
• Iran Training Manual
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• Somalia Training Manual 
• Internal Flight Alternative Training Manual

EU-Regulations and Asylum Issues

Image by centralasian via Flickr

Source: ILGA-Europe

Workshop held at the ILGA Europe Annual Conference , Vienna, 30 October - 2 November 2008

By Sabine Jansen, COC Netherlands

I would like to start with some explanation and a few remarks on the Conventions that apply to LGBT asylum seekers in Europe. After that I will give two examples of issues in asylum policy that form specific obstacles to LGBT people. Then I will say something about two recent cases that are important for the Netherlands and maybe for other European countries as well.

Convention matters

In theory LGBT asylum seekers who flee for reasons related to their sexual orientation or their gender identity in most European countries could qualify for asylum. In the Netherlands this is case-law since 1981. There are two possible ways.

To qualify for a refugee-status under the 1951 Refugee Convention (the Geneva Convention) one should have a well-founded fear of being persecuted for one of the grounds mentioned in this convention: race, religion, nationality, political opinion or membership of a particular social group. Although ‘Sexual orientation’ or ‘gender identity’ are not explicitly mentioned in the Convention, LGBT people can be seen as ‘members of a particular social group’, who share a common characteristic and have a distinct identity due to the perception in the society of origin. On this ground they should be protected against persecution by the Refugee  Convention. 

The second way in which LGBT people could obtain asylum is a status based on Article 3 of the European Convention on Human Rights, that forbids to send someone to a situation where he or she has a ‘real risk’ of being subjected to ‘torture or an inhuman or degrading treatment or punishment’. This is also called ‘subsidiary protection’.

These two asylum statuses are also described in the EU Refugee Status Directive, that has been adopted by the EU member states and came into force in 2004.[1] It contains minimum standards: states are allowed to give more protection than is prescribed by the Directive.

The Directive should have been implemented in your national legislation since October 10th 2006. Now that this date has expired, people can call upon the Directive itself in the national procedures. The national judge should then apply European law.

The Refugee Directive says in Article 10 explicitly that ‘depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation.’ National legislation of the EU member states must therefore include in the ground ‘particular social group’ the possibility of groups based on sexual orientation .

Article 10 continues: ‘Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.’ I do not understand the intention of this phrase. It resembles Country Reports with sentences like: ‘Homosexual acts are punishable by law, the penalty is three years of imprisonment. The penalty on homosexual acts with a minor against his will is seven years.’ We would call this ‘rape’ or ‘child abuse’ instead of homosexuality. This kind of information does not belong in a Country Report chapter on the situation of LGBT people. Why would the Directive describe criminal sexual orientation acts? To exclude criminal asylum seekers one could apply other articles of the Directive.

When I did research on the legal position of homosexual asylum seekers in the Netherlands, I identified several problems, of which I will now describe two examples. If you want more information about these issues, I could send you the article I wrote, although an extra problem is, that it is in Dutch.[2]

State protection against non-state actors

Sometimes LGBT people flee their country of origin, because they are persecuted directly by the authorities. But more often the persecutors are so-called ‘non-state actors’, family, neighbours etc. For a long time the idea was that a real refugee is someone who is politically active and persecuted by the state. So women and LGBTs, who often flee because of violence by sexist or homophobic non-state agents, did not fit this image. It is very important that the Directive explicitly recognizes non-state actors as actors of persecution or serious harm.

When a LGBT person is so mistreated by non-state actors that he or she decides to leave the country in search of safety elsewhere, one of the questions that is posed by the Immigration officer is: ‘Did you go to the local authorities to ask for protection?’ Sometimes the answer is: ‘Yes, but they refused to help me’ and sometimes the answer is: ‘No, because I am afraid of the police’.

A gay man from Algeria fled to the Netherlands after he was gang-raped by fifteen ‘civilians’. His asylum claim was refused, because he should have asked the Algerian police to protect him. He did not do so, because a few years earlier he was raped by a police officer and in Algeria homosexuality is punishable with three years imprisonment. According to Dutch Immigration officers the first rapist was just one policeman and he could have asked help from other or higher authorities. It’s true that homosexual acts are criminal in Algeria, they argued, but rape is too. Finally they granted him asylum, but this took almost four years of procedures.

In general, people fleeing because of persecution by non-state actors are supposed to seek protection in their home state first. Though in my opinion it is not reasonable to expect from an LGBT person to turn to the police for protection in a country where homosexuality is a crime or where the general atmosphere is homophobic.

Article 6 of the Refugee Directive states that actors of persecution include non-state actors, ‘if it can be demonstrated that the State is unable or unwilling to provide protection’. But who has to demonstrate this, on whose shoulders is the burden of proof? The general answer is: ‘the asylum seeker’, but I think the burden of proof should be on the receiving state. The state should first demonstrate that the authorities of the country of origin are in general able and willing to offer protection to LGBT people, before expecting the asylum seeker to turn to the police.

There is support for this idea in the Refugee Directive. Article 7 of the Directive says that protection is generally provided, when the state takes reasonable steps to prevent the persecution. The state should operate ‘an effective legal system for the detection, prosecution and punishment of acts constituting persecution’ and the applicant should have access to such protection. In homophobic societies this kind of protection will seldom be available. So, when someone was persecuted by homophobic non-state actors in the state of origin, you could try to refer to the Directive.

The right to privacy or private life

In 1981 the European Court of Human Rights (ECHR) decided that the provision that criminalized homosexuality in Northern Ireland was a violation of the right to privacy in Article 8 of the European Convention on Human Rights (ECHR).[3] This decision was followed by similar judgements on the criminalization of homosexuality in Ireland and Cyprus.[4]

The only time a gay asylum case was decided upon by the European Court of Human Rights was in 2004 when the Court judged the case of a gay man from Iran who sought asylum in the UK. The Court rejected his claim at the right to private life in Article 8 of the Convention. Although homosexuality is a crime in Iran, this does not mean that deportation of a person to this country is a violation of Article 3 or 8 of the ECHR. Iran is outside the European Union and this country is not a party to the European Convention.[5]

Decision-makers sometimes argue that gay people will not be persecuted as long as they act discreetly or are not openly gay. And of course, if all LGBT people would stay in the closet completely, there would probably be no harassing, rape, ill-treatment, murder, torture or discrimination of LGBTs. The Netherlands recently adopted the policy not to use this argument anymore, but for instance the UK still does: The British Home Secretary said that ‘Gay and lesbian asylum-seekers can be safely deported to Iran as long as they live their lives "discreetly".’[6]

The advice to act discreetly upon return is a violation of  the right to privacy and ‘the right to privacy includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity’, as the Yogyakarta principles state.[7] The Michigan Guidelines say: An individual shall not be expected to deny his or her protected identity or beliefs in order to avoid coming to the attention of the state or non-governmental agent of persecution.[8]

In the case Bensaid v. UK (2001) the European Court of Human Rights stated that ‘private life’ is a broad term and that gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 ECHR. It might be a good idea for people in the UK to start a procedure at the ECHR stating that the claim to act discrete is a violation of the right to privacy protected by article 8 ECHR. And the Dutch Government should convince other European members to follow their policy not to expect LGBT people to live discreetly.

Two recent cases

A case that attracted a lot of attention in the EU was the case of Mehdi Kazemi from Iran. He  first applied for asylum in the UK, after he had heard that his boyfriend was executed in Iran and he feared the same fate. Nevertheless, his case was refused. Then he fled to the Netherlands. The Netherlands has the policy to grant asylum to all LGBT people from Iran, but Mr. Kazemi’s asylum claim was refused again because of the Dublin Convention, which prevents application for asylum in more than one EU country. He was sent back to the UK. After a lot of protests and demonstrations from several LGBT-organisations in the UK and the Netherlands and a resolution from the European Parliament, Kazemi was finally granted asylum in the UK. To avoid this kind of Dublin cases in the future the Dutch Government should export the policy to grant asylum to LGBT people from Iran.

There was also the case of the Iranian lesbian Pegah Emambakhsh, whose partner was sentenced to death by stoning. The last report on her situation dates from last March, when she was still in the UK, fearing deportation to Iran. I wonder if anybody knows what has happened to her? 

Last year the case of mr. Salah Sheekh from Somalia against the Netherlands was decided upon by the European Court of Human Rights.[9] He won the case because according to the Court his expulsion to Somalia would be in violation of article 3 of the Convention. Mr Sheekh was a member of the Somali clan of the Ashraf, and as a result of this the Netherlands had to change the asylum-policy. We now have two new categories: ‘vulnerable minority groups’ and ‘groups at risk’. Vulnerable minority groups are for instance single women in Afghanistan and Christians in Iraq. Their burden of proof is much lower. A few days ago, in a meeting with Dutch government officials we heard that they plan to recognize homosexuals from Iraq and Afghanistan as ‘groups at risk’. If these asylum seekers  pass an individual examination with limited evidence, they will get a refugee-status. So that is good news, although it has a somewhat bitter taste, because very recently the categorical protection for asylum seekers from Central Iraq was ended.

This summer the European Commission presented a policy plan on asylum, as part of the creation of a Common European Asylum System (CEAS). One of the overarching objectives of this CEAS is to incorporate gender considerations and take into account the special needs of vulnerable groups. I don’t know if ILGA is already creating LGBT input in this harmonisation process, but I think this would be a good idea.

I would like to end with a subject that is, as far as I know, in the Netherlands hardly an issue: Immigration sometimes does not believe someone to be gay. Here in Vienna for instance I heard that lesbian women from Zimbabwe are denied asylum in the UK, because they have children and for that reason are not believed to be gay. And I also heard the story of a man from Azerbaijan, who sought asylum in the Czech republic. To test his gayness the Czech authorities showed him porn-videos, while putting a device around his penis, to measure his reaction to the porn. This is a gross violation of human rights and if this is true, human rights organisations should send a fierce protest to the Czech authorities.

Anyhow, I would be very interested to hear how the situation of LGBT asylum seekers is in other EU-countries. So I hope we can exchange ideas and experiences in this workshop or during this conference.

[1] Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or

stateless persons as refugees or as persons who otherwise need international protection and the content of

the protection granted, (2004) OJ L304/12.

[2] ‘Op de vlucht voor homohaat, over discriminatie en discretie’, Nieuwsbrief Asiel- en Vluchtelingenrecht 2006, nr. 3, p. 124-146.

[3] ECHR, Dudgeon v. United Kingdom, 22 October 1981, 7525/76.

[4] ECHR, Norris v. Ireland, 26 October 1988, 10581/83; ECHR, Modinos v. Cyprus, 22 April 1993, 15070/89.

[5] ECHR, F. v. United Kingdom, 22 June 2004, 17341/03.

[6] The Independent, 23 June 2008.

[7] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, March 2007.

[8] The Michigan Guidelines on Nexus to a Convention Ground, University of Michigan Law School, Ann Arbor USA, March 2001.

[9] Salah Sheekh v. The Netherlands, 11 January 2007, 1948/04.

Soul mates: the price of being gay in Somalia

Image via Wikipedia

Source: Behind the mask

By Afdhere Jama

As a young gay boy, Ali Abdulle read a lot. He mostly read novels, he says. The concept of soul mates always seemed to be a present thought in the genre he was interested in, romance. Abdulle, however, really didn't believe in it.

At the age of ten, his family had to move. The decision was hard for the family, who lived in the neighbourhood they were moving from for almost twenty years. "I remember mother cried," says Abdulle. "It was very hard leaving all of our friends and neighbours."

The new neighborhood was what it was expected to be; new. The family had to start from scratch. This is where Ismail Sakariye, then eleven-year-old, comes into the story. Abdulle's family moved next to Sakariye's. The two kids naturally went to the same school. They became friends.

"We became friends rather quickly," remembers Sakariye. "I never made friends that fast. We just had more in common than either of us anticipated." The boys found out they liked and disliked just about the same things. But what really brought them together, remembers Abdulle, was their common dislike for sports.

A year after meeting, the boys had "accidental" sex one night. "We were just playing and it just happened," says Sakariye. Well, it happened and happened and happened. For another three years, the boys had sex on a regular basis. In Somalia, where the couple is from, it is not uncommon for boys to have sex with each other. What is uncommon, however, that these boys' sexual "experiments" had gone beyond the age usually expected to stop.

At the age of 16 and 17, the boys were still having sex. "After a certain time, I couldn't imagine living without him." Abdulle says. So, love came and knocked on their doors.

To fall in love with a man when you are expected to marry a woman is a big problem, most of all with you. At the age of eighteen, Sakariye's family had proposed that he marry a third-cousin of his. The boy was overwhelmed and told the family he was gay.

All hell broke loose, as his family were religious Sunni Muslims and believed homosexual acts are something that certainly promised you a lifetime of hell in the world to come. "Oh, they were way so angry. My father was in a full rage and was running around with a knife," says Sakariye. "It was far more than I thought it would be. It was crazy. I can't even begin to tell you how they all seemed like they were about to explode."

Though Sakariye did not out his lover, the couple were forced to deal with the situation. "I was extremely in love with him," Abdulle says. "There was no way I was going to watch them kill him. We had to do something." They did something, alright.

They ran away together to another city. "Ali just came to my bedroom late one night and he had a bag with him," remembers Sakariye, laughing through it all. "I remember I looked at him and said 'where are you going?' and he said 'we are going to Shalaamboot.'" Shalaamboot, about 70 miles south of Mogadishu, was an accepting city, the couple was told. It was their only hope of ever being together.

Their fancied city became an ugly dwelling when the couple learned that it was worse to be there than it would have been in Mogadishu. "After we arrived in the city, we found this lady that we were looking for. She put us in her home and was very nice," remembers Abdulle, who was related to the woman. "And then she casually went into town. When she returned, she returned with a bunch of men dressed in women's clothing."

- Drag Queens? Uhm, not exactly. In parts of Somalia, gay men are expected to either remain in the closet or wear women's attire. "Of course, the choice was clear." Sakariye says. "We told them we would just be in the closet then."

A whole new world was possible for the couple. They were in a city where they had the choice to be in the closet. "We really didn't care to not be out as long as we were together," says Abdulle. "We couldn't have asked for a better situation. In Somalia. Together. Safe. All things we never thought were possible after Ismail came out."

The couple, however, was shocked when they learned the locals were not happy with their decision. The locals - who were not all queer - decided to boycott the couple. It started with their good hostess kicking them out. Then they couldn't even find a place to rent or a job. They had to live with a supportive woman, secretly.

Weeks of agony and fear followed that. The couple was running out of money, as money got tight when the groceries would not even sell them anything and the couple were forced to eat at restaurants. "We only had money we could survive on a week or two," says Sakariye. "We were getting scared we would not even have enough to return to Hamar [Mogadishu.]" Suddenly, the "accepting" city has become the guys' worst nightmare.

It was time to reconsider things. "I proposed we just go to another city," remembers Abdulle, who was against the idea of even considering having to go drag. "I was up for anything but becoming a drag Queen. I told Ismail that I would rather die."

Love conquers all, a concept so ever-present in the books Abdulle read, was suddenly becoming less and less true. "They were killing our thoughts, our souls," says Sakariye. "I thought we should reconsider their offer. It was the only choice." The city elders have made an offer to the couple. The offer, to live in the city and be supported as long as they made changes to their attire, seemed outrageous to Abdulle.

"Ismail helped me see that we could beat them in their own game," says Abdulle, who after a while decided to go with Sakariye's plan of agreeing to the attire while the couple would not do it in the privacy of their home. "Then we went to them and told we wanted to take up on their offer." Strangely enough, the ban was lifted and the couple was provided with a job and a place to rent.

The couple got smart. They worked half of the day together and they stayed in half of the day together. While they stayed in, they dressed as men. "You have no idea how much wearing a jeans means to you in that situation," says Abdulle, laughing. "I would start undressing when my eye could see the first glimpse of the house. You simply can't wait."

What is with all this fuzz about clothing? Many Somalis believe gay men are imitating women, say the couple. "It is their way of making us pay for being gays," says Sakariye. "You make up all these beliefs to punish people who you disagree with. It was like 'damn you for being a queer.'"

When the civil war broke out in 1991, the couple ditched the drag and emigrated to neighboring Kenya. "I think we are the only ones who are grateful for the civil war," says Sakariye, who admits he is joking. "I was just so happy to leave there. We lived in a bad situation back there."

Once in Kenya, they applied for asylum as refugees. Three years after their application, they arrived in America. "We didn't know you could apply asylum for being gay back then," says Abdulle, laughing. "If we knew that, we would have come earlier than that, even when Somalia was still okay. But we are here now and that is all that matters."

Now, far away from all that in a land where they are told 'be all you can be,' Abdulle wholeheartedly believes Sakariye is his soul mate. He realises that life can bring you good out of what seem like unthinkable situations. "That first move was hard on me, but it brought me love," says Abdulle. "That civil war put us through the hell of having to be refugees, but it brought us freedom." The universe does work in mysterious ways. Well, at least for this couple.

Afdhere Jama is a queer Muslim writer. He is the Editor of Huriyah magazine(http://www.huriyahmag.com ). Reach him via Afdhere@hotmail.com

Somalia: a woman's woman

Image via Wikipedia

Source: Behind the mask

By Afdhere Jama

By the time I came to America at the age of seventeen, I had met at least a dozen queer Somalis. All of them men. I had yet to meet a lesbian. The word used for lesbian in Somali, qaniisad, is the feminine version of the word qaniis or a gay male. A few years ago, I finally met a qaniisad. Her name was Rahma Shire and she visiting from Switzerland. She was a 25-year-old medical student and nin-nin or masculine in terms of behavior but at the same time possessed lots of feminine qualities like long hair, pretty nails and fabulous traditional Somali dressing known as dirac[see-through kind of a dress that goes all the way below the feet which then women grab with one hand and hold onto while walking, part of its xarago or beauty.)

Being masculine, Shire had her dirac supported by her goorgarad or a traditional inner skirt that is usually silky and a different color than the dirac, accompanied by same color rejistiin or a bra. Instead of holding it, she just tucked part of the front under the goorgarad. When I was in Somalia, I used to see a lot of women do that. Then I asked Shire whether that was a clue to their sexuality or not. "No, honey," she said. "It is actually common for women to do this when they want to use both of their hands. I'm just a dyke and can't drag a dress all day."

In Somali culture, women encourage themselves to drag it because xarago xanuunkeed or "beauty has its pains." They use the same phrase when justifying wearing painfully tall high-heels. Shire, on the other hand, is wearing medium-high open shoes and actually seems to be comfortable. "Why bother? Shoes are just shoes. They are meant to complement your clothes not to put you in pain." I couldn't help but agree with her.

Shire is beautiful, indeed, but her beauty gets even better when she talks about queer issues. She is passionate about gay rights, especially since she believes one of an executed lesbian couple in Somalia was her ex-. A few years ago, story broke out to the international community about a lesbian couple being executed in a northeastern part of Somalia that calls itself "Puntland." Shire was scared for the lesbians, but then she received a word from Somalia that one of the victims was her ex-girlfriend. "A lesbian called me in the middle of the night," says Shire. "It was a horrible news because my ex-girlfriend and I did not break up because the relationship died but because of the war. We got separated and then her family married her off to some guy."

Shire tried to find out everything she could about the executed couple, but the self-declared state denied it. She says she contacted at least three different people in that region and they confirmed the story was actually true. The women, who belonged to the Majeerteen and Isaaq clans, were executed "discreetly." Shire, an Isaaq herself who was coincidentally in a relationship with a Majeerteen lady at the time, says the story seemed to parallel her life more than she imagined. It even seemed to be repeating itself when her girlfriend decided to go back to Bosaaso(same region) to take care of her ill mother. "She was my former girlfriend and she was dead now because she was a lesbian," says Shire. "Then my current girlfriend decided she wanted to go to the same area. I was really angry and scared."

Shire came to Europe in 1991 when she got into Italy illegally. A lot of Somali women were doing the same thing. Italy was "big" because you could become boyaaso or a maid/care-giver. Then she went into Switzerland and filed for asylum as a refugee. "Coming to Switzerland was the best thing I did," says Shire, who moved to a region in Switzerland that speaks French. "I could go to school and envision a good life." That is exactly what she did. She went to school and now she is almost done with her medical school. What is she going to be? "A gynecologist," she says. "I want to help Somali girls understand their bodies and deal with some of the things they are faced with."

She is a fierce feminist. She goes all around Switzerland and teaches Somali women sobering facts about a very extreme female circumcision known to Somalis as gudniinka fircooniga and known to others as Female Genital Mutilation (FGM.) "The education on this horrible practice is very low within the Somali community," she says in front of dozens of Somali women in a community gathering. "Women, especially, need to empower themselves by studying the cases. There is enough information on this out there for anyone who is interested. Please, for the sake of your daughters, stop this practice."

Like most Somali girls, she suffered the practice, which most Somalis do in order to keep the girls' sexuality "under control." Somalis, who are mostly Sunni Muslims, say by "cutting down the pleasure the girls will not sin by having premarital sex," says Shire. And because of that, many of these victims of FGM end up hating their bodies, and men, coincidently.

Fortunately, Shire is not one of them. In a recent conversation with her for Huriyah magazine, when asked what she thinks of her vagina, she said: "I love my vagina. When the civil war started, I would have gone crazy without satisfying myself, after my girlfriend left me and moved with her family to the other side of the country. It saved my life, literally." I can't help but be proud of her, both as a Somali and queer.

So, what is she doing now? "Enjoying my life with my girlfriend of eight years," she says. "I'm looking forward to becoming a doctor, as well. My life is in good shape. I didn't write it this way but I absolutely love it. My girlfriend and I have made definite plans for a marriage." What a sweet life.

Afdhere Jama is a queer Muslim writer. He is the Editor of Huriyah magazine(http://www.huriyahmag.com ). Reach him via Afdhere@hotmail.com