Monday, 13 December 2010

LGBT asylum applicants need to prove persecution, not sexual orientation

By Bruce Leimsidor, Professor of EU Asylum Law, Ca’ Foscari University, Venice

The recent revelations concerning the Czech immigration authorities’ subjecting some LGBT asylum applicants to phallometric testing, where sensors are applied to the applicant’s body to test erotic response, and thereby substantiate or refute his claims that he is homosexual, have once again opened up the discourse on how a gay asylum applicant can, in fact, prove his sexual orientation. Despite the serious human rights issues involved, the Czech use of phallometric testing, which has now allegedly been discontinued and was, according to Czech claims, used only on a very small number of asylum applicants, is only a very minor part of the general problem; much more significant, however, is the recently perceived tendency of EU asylum officials to reject asylum applications on the grounds that the applicant cannot sufficiently prove his sexual orientation.

LGBT asylum advocates have claimed that the use of such grounds for rejection is merely an attempt by homophobic officials to block LGBT asylum. Such a claim, while it may, in fact, be correct in some cases, misses the point. What is wrong in the justification of “not proven gay” is not its injustice, but rather its irrelevance.

According to the interpretation of most asylum countries of the relevant asylum instruments, the applicant’s sexual orientation alone is not sufficient grounds for granting asylum. Moreover, since sexual orientation is, in itself, very difficult for most asylum seekers to prove, it is upon the appropriateness and credibility of the circumstances surrounding the applicant’s sexual orientation, and not his sexual orientation itself, that the decision generally should be, and, in fact, is made.

The 1951 Geneva Convention requires that the applicant be persecuted or have a reasonable grounds to fear persecution because of his LGBT status. Although UNHCR has urged that asylum authorities view being homosexual in any country where homosexual activity is outlawed as having reasonable grounds for fearing persecution, most countries have required that applicants have been persecuted for their homosexuality or have received at least targeted specific threats in order to have reasonable grounds for fearing such persecution.

It is, therefore, the appropriateness and credibility of the persecution claim itself, and not claims as to the applicant’s sexual orientation, that decides the case.

Ironically, in terms of asylum, a well documented and credible persecution claim is, in fact, the most convincing proof of the applicant’s sexual orientation, and not the other way around. Testimony from alleged sexual partners from the country of origin can be useful, but it can, of course, be bought or manipulated.

Moreover, it is quite possible for an essentially heterosexual applicant to have homosexual sex in the country of asylum in order to document alleged homosexuality for an asylum hearing. However, specific and well- articulated details of how the applicant was persecuted as an LGBT in his country of origin, containing details not generally available on the internet, are, rightly, much more convincing.

Hence, the adjudicator’s explanation of “not proven gay” is quite possibly simply an intellectually undisciplined and inexact way of expressing a justifiable reason for denial of refugee status: that the applicant had not sufficiently proven persecution, or justified fear of such. Since he comes from a country where LGBT are generally persecuted, if the applicant were, in fact, gay, it is reasonable to expect that he would have suffered persecution at least to some degree. That he has not been able to substantiate that he, in fact, has suffered such persecution, and since sexual orientation is, in fact, very difficult to prove, it cannot be assumed that he is even gay.

In most, if not all of the recently rejected “not proven gay” cases, the persecution claim has, in fact, been very weak - even non- existent - or clearly not credible. Moreover, since arrival in the country of potential asylum, almost all the rejected applicants have conducted themselves in a manner that seriously diminished their general credibility.

Many of those rejected on “not proven gay” grounds had been living in the EU illegally for several months - some as long as several years - before applying for asylum. Some applied for asylum only after they had been arrested for illegal stay or other infractions and were in danger of deportation. There is, of course, no better way to damage the credibility of an asylum claim than to make it seem to serve to block deportation or arrest for illegal stay.

For any type of asylum case, gay or straight, the threshold for credibility automatically rises substantially under such circumstances. Such cases, in order to be granted asylum, would have to have a realistic and compelling reason for not having applied earlier for asylum (Ignorance of the asylum system is generally not good enough!), and the persecution claim itself would have to be very convincing and detailed.

Others rejected on “not proven gay” grounds had first applied unconvincingly as refugees on other grounds and had been rejected. The credibility of a second application as an LGBT refugee was, of course, sorely tested, since it appears to be an attempt simply to obtain asylum at any cost.

While it is understandable that some LGBT may have problems admitting to their sexual orientation, especially in the humiliating context of telling strangers what they had suffered, and had tried to obtain asylum on other grounds, it is not advisable to depend upon the good will and sensitivity of the asylum adjudicators in this regard. An application for asylum under sexual orientation grounds, filed after a failed application on other grounds, regardless of the motivations for not having filed as an LGBT in the first place, carries with it an extra burden of proof.

In addition, it will, of course, also be assumed by the adjudicators that someone who has fled his country because of persecution as an LGBT would try, at least to some extent, to realize expression of his sexual identity in his potential country of asylum. Alleged LGBT asylum applicants who have not applied relatively soon after arrival for asylum and confine themselves to their own, straight ethnic communities - the same people who supposedly persecuted them back home - or who have little or no knowledge of gay life in their new country, can also expect to have their LGBT identity put to question.

Under these circumstances, that they have managed to get a few gay citizens to testify that they have had same sex relations with them may not be all that convincing. Just as gay people can have heterosexual sex when forced by circumstances to do so, heterosexuals can have gay sex when it is to their advantage.

Hence, while the justification “not proven gay” for an asylum rejection is highly unfortunate, since it is inexact and fuzzy minded, it does not necessarily indicate a grave miscarriage of justice. It most likely means, rather, either that the applicant cannot prove persecution as an LGBT; has, through his conduct, destroyed his credibility; or both.

The justification of “not proven gay” is, however, damaging to our understanding of asylum, since it wrongly perpetuates the idea that the applicant would automatically qualify for asylum it could be proven that he is gay. Such is, at least according to the reading of asylum instruments in most western countries, not the case.

While UNHCR is to be commended for the humanity of its recommendation that all LGBT from countries where homosexual activity is outlawed qualify for asylum under the 1951 Geneva Convention, reality seems to justify the position taken by most countries that some specific indication of persecution or impending persecution be required. In almost all countries where homosexual relations are outlawed, there are LGBT, some of whom even manage to live quite overtly and even flamboyantly as gays, who avoid persecution.

This is the case even in a country such as Iran, where the death penalty is imposed, or Iraq, where LGBT are regularly murdered by family and assassination squads. Hence, even in countries where there is documented and far- reaching persecution of LGBT, being LGBT alone does not automatically imply having been persecuted, and therefore does not automatically qualify the person for asylum if he leaves.

Similarly, it is difficult to designate unequivocally as persecuted those who, in countries where homosexuality is punishable, are afraid to act upon their homosexuality, or act upon it only occasionally under extremely restrictive circumstances. The motive for their inhibited behavior may just as easily be internalized homophobia as fear of social or governmental reprisal.

Many LGBT repress their sexuality even in tolerant societies where there are no legal sanctions. Even UNHCR, in such cases, admits that their asylum claims may be difficult to prove. The situation of such cases is truly tragic, but a legal solution does not seem to be evident.

The misunderstanding in the West that all LGBT from countries punishing homosexual activity who can somehow prove their sexual orientation qualify for asylum is unfortunate. However, when the misconception leads to expectations among LGBT asylum seekers, who come to Europe expecting asylum simply by claiming that they are gay, it can, in fact, ruin lives.

In order to avoid damaging credibility, asylum must be requested in a timely fashion as soon as the applicant enters national territory (not at the airport, in the international zone, where the applicant’s legal rights are diminished!) and the asylum claim must be carefully prepared and documented. Just being gay may have been enough to get you persecuted back home; it’s not enough to get you asylum in Europe.

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