By Lea Schiller
November 2013: the case of three African men sets a landmark ruling on the right to asylum for LGBT people. In 2011, Dutch immigration authorities had rejected their application for asylum – saying that the men could have hidden their sexuality in order to avoid prosecution. The men appealed, and the case was referred to the European Court of Justice (ECJ). Under the Convention Relating to the Status of Refugees of 1951, a refugee is defined as an individual with a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group”. The Court decided in favour of the three men, ruling that gay refugees from African countries where homosexuality is punishable by law were a “particular social group” according to the convention. But although the ECJ proclaimed the decision to be a binding interpretation of EU law, this recognition under the convention of 1951 was only the first step. Legally, the applicants also have to prove their sexuality, a justified fear of persecution and that the country of origin does not provide protection (Gartner 2015).
To determine whether or not an applicant would be provided protection from persecution in their home state, complete and reliable information is vital. However, many European states used to equate lack of information with lack of enforcement, and even if sufficient information on criminalisation is available, applicants are often required to turn to the authorities in the home state for protection first (Jansen & Spijkerboer, 2011). If risk of persecution was acknowledged, the discretion requirement was often applied: recommending the applicant to conceal their sexual orientation or gender identity to avoid prosecution in their home state (Jansen & Spijkerboer, 2011) – even though the risk of forced outing would still prevail.
The ECJ ruling in 2013 turned the conversation from identifying persecution to the question of credibility; the focus was now on whether or not the applicants could prove their sexuality (Jansen, 2014). In order to determine the reliability of an applicant’s claims, many states turned to psychiatrists and doctors, who often made use of the Rorschach test, in which the doctor tries to get insight into the individual’s personality by having them interpret blots of ink (European Agency for Fundamental Rights [FRA], 2017). Additionally, many caseworkers lacked understanding for the specific situation of LGBT refugees; for example in some cases, applicant’s stories were questioned on basis of lack of information on famous LGBT meeting places in Europe (FRA, 2017). And because the experiences of LGBT people are vastly different, depending on one’s background and culture, it is crucial that assessment’s of credibility are not based on Western understandings on LGBT people (United Nations High Commissioner for Refugees [UNHCR], 2012).
In 2018, the ECJ banned the tests on the credibility of homosexuality claims in a binding decision on a Nigerian applicant, who was rejected by Hungarian authorities after a psychological test came back as inconclusive. The court described the reliability of the tests as “limited” and stated that they were “not essential” in determining whether or not an applicant is telling the truth.
But even after this decision, cases surfaced of questionable verification methods being used in the asylum process of EU member states, such as the one of a teenager from Afghanistan, who was turned away by Austrian officials which found that neither his behaviour or his clothing were gay enough. Just a month earlier, a man from Iraq was turned away because he was acting too feminine.
Even though the European Union has taken significant steps towards implementing a universal, just system for dealing with LGBT refugees, the journey is not over yet.
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