A top EU official issued an opinion this week emphasizing that asylum claimants should be allowed to identify as LGBT without facing antagonistic tests that risk contravening their human rights, an important statement that should have broad implications for several nations including the UK.
The Advocate General Sharpston of the Court of Justice of the European Union (CJEU) issued the opinion in relation to a case from the Netherlands where a number of asylum applicants, all claiming asylum on grounds that their being gay put them at risk of persecution in their home countries, alleged that the immigration system had disregarded their self-identification and instead based immigration decisions solely on other evidence of their homosexuality.
It’s worth interjecting here and saying that the idea that being gay would help an asylum claim is actually false. Faced with something as hard to prove as sexuality, the courts and immigration services have constructed elaborate frameworks by which to assess claims, and they’re often offensively stereotypical. In essence, you are straight unless you can prove otherwise, and the way in which you do that is by attending Pride parades, going to gay clubs and, in some cases I’m afraid, even “looking” gay.
Some countries have even subjected claimants to blatantly unlawful practices like showing asylum seekers pornography and measuring their physical reaction. So antagonistic are the standards applied in countries like the UK that some claimants have even taken to filming themselves having sex.
The advocate general therefore concludes that while member states do have a right to investigate the authenticity of sexual orientation claims, they cannot out of hand dismiss how an applicant self-identifies and should instead use that self-identification as a starting point to assess the claims — for instance, they can look for consistency in details like how long the claimant has self-identified as being gay or trans, whom they may have told or not told given the persecution they fear, and then work at checking for helpful things like whether the claimant contacted LGBT rights groups in their home country.
In particular, the advocate general says that member states should immediately cease all invasive medical tests as they run contrary to human rights standards, and should cease invasive questioning practices that violate the seeker’s human rights:
The UNHCR divides the various methods of assessing credibility under discussion into two categories. Some, which are in all circumstances contrary to the Charter, it describes as comprising a ‘blacklist’. They cover: invasive questioning concerning the details of an applicant’s sexual practices; medical or pseudo-medical examinations; and abusive requirements relating to evidence, such as asking applicants to provide photographs of themselves performing sexual acts. The UNHCR’s second category is described as a ‘grey list’; it concerns practices which, if not applied in an appropriate or sensitive manner, risk being contrary to the Charter. The grey list includes practices such as concluding that an applicant lacks credibility because he did not invoke his sexual orientation as his basis for claiming refugee status at the first opportunity, or because he fails to give a correct reply to general knowledge questions, for example, concerning organisations that represent homosexuals in the country where asylum is claimed. The UNHCR grey list also covers national procedures that fail to offer an applicant an opportunity to explain elements that do not appear to be credible.
The Commission submits that the Qualification Directive does not place limits on the type of evidence that might be presented in support of an application for refugee status. None the less, evidence should be collected in a manner that respects applicants’ fundamental rights. Methods that are degrading or inconsistent with human dignity, such as pseudo-medical tests or assessment by reference to stereotypes, are inconsistent with both the Qualification Directive and the Charter.
The opinion doesn’t technically change or strike any laws. Instead, and as above, it clarifies that member states cannot violate longstanding human rights laws as they attempt to verify asylum claims — and, sadly, this is needed.
The UK in particular has in the past few years threatened or actually deported a number of asylum claimants who not only said they were LGBT but actually had LGBT rights groups support their testimony. An immigration official was recently fired for “interrogating” a gay asylum seeker, and the Home Office is still carrying out an internal review because the problem seems endemic.
Does this opinion mean it will now be easier to claim asylum on grounds of LGBT identity, then? Well, it’s important to recognize that none of the standards pointed out in this ruling are new, so it could be that member states will continue to ignore what the advocate general has said. In that eventuality, claimants will at least have a relatively easy course for appeal.
If the member states do take this ruling on board, it is unlikely that claiming asylum on grounds of LGBT identity could ever be an easy option. This legal opinion does nothing to change the fact that member states can carry out often lengthy investigations into claims based on sexual orientation or gender identity. Instead, this opinion creates a little more balance, and a little more humanity in proceedings. As the international European rights group the ILGA notes, however, there is still work to be done in this area:
“We welcome this opinion and hope that the Court will follow the opinion to strengthen the laws and practices in the EU on working with LGB asylum seekers,” said Gabi Calleja, Co-Chair of ILGA-Europe’s Executive Board. “The Opinion is clear that the human dignity and personal integrity of an asylum seeker during the process of verification of their sexual orientation is paramount and central in this process. What we need now is clear guidelines for all EU Member States which helps asylum authorities on how to act with respect and dignity in such cases.”
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