Asylum rules for gay or lesbian migrants

A seminar held under the auspices of the human rights lobby group, Aditus, bringing together a number of stakeholders from the government, academia and civil society, highlighted the issue of asylum seekers suffering from “gender-related persecution”. It was alleged that these individuals were being let down by inadequate asylum procedures.

The seminar had been prompted by a report, Fleeing Homophobia, based on a project by an organisation called COC Netherlands and the Vrije University of Amsterdam, in cooperation with the Hungarian Helsinki Committee and the European Council on Refugees and Exiles. Although funded by the European Refugee Fund and the Dutch Home Affairs Ministry, the report has no official status as such.

Fleeing Homophobia highlights the plight of thousands of lesbian, gay, bisexual, trans and intersex (LGBTI) asylum seekers who apply for international protection in Europe each year. Some EU states have already taken action about this issue, such as recognising sexual orientation as a qualifying ground for persecution under article 10 of the Qualification Directive. In fact, there have been some cases where persecuted LGBTIs have been recognised as refugees or received subsidiary protection.

However, the report shows that there are considerable differences in the way different member states examine such applications for asylum. It advocates the need for the European Asylum Support Office (now based in Malta) to give priority to promoting and coordinating good practice in this area.

A number of groups, including Amnesty International and the European Women’s Lobby, spoke strongly about the problems faced by LGBTIs and some of the harrowing cases that arose. Malta was identified as being one of the many European countries that was “ill-equipped to deal with asylum issues stemming from persecution on gender or sexual orientation grounds”.

The report makes nine wide-ranging recommendations, the most sweeping and significant of which is the first. It is being proposed that “refugee status should be granted to (LGBTI) applicants originating from countries where sexual orientation or gender identity are criminalised or where general provisions of criminal law are used in order to prosecute or persecute sexual orientation or gender identity”.

The 1951 United Nations Refugee Convention does not explicitly list gender or sexual orientation as one of the grounds for granting refugee status. EU legislation sensibly considers that gender-related aspects “shall be given due consideration” when determining refugee status.

While it is clear that any discrimination on grounds of sexuality is unacceptable in any circumstances – a position which has now been acknowledged by all political parties in Malta even if belatedly – it is a considerable leap from this to go on to declare that such orientation should be grounds for granting asylum on the basis of “political persecution”.

Political persecution lies at the heart of the Geneva Convention and it may prove difficult in both logic and also on grounds of common justice to make a case that because an asylum seeker comes from a country that criminalises homosexuality this would constitute grounds for accepting that s/he had left their country of origin because of political persecution.

On the other hand, the Refugee Commissioner would be right to ensure that all due consideration is given to gender-related applicants on a case by case basis. It would be wrong, however, to make it a blanket rule, embedded in the law, that all such asylum seekers should automatically be recognised as refugees or granted some other form of subsidiary protection.