Tuesday, 23 February 2010

The LGBT Asylum Crisis

There is no denying that asylum seeking is a contentious issue. What sparks even more controversy is the issue of LGBT asylum seekers. The case of the Iranian, Mehdi Kazemi, 19, who faced deportation to Iran and therefore, a likely death sentence, brought this issue to public attention. He was saved thanks to media outcry, however, the prospects for many others are bleak.

LGBT asylum seekers face unique barriers when it comes to the asylum process, not just in the UK, but elsewhere. These difficulties stem from the debate over whether they can be included in the definition of a refugee set out by the 1951 UNHCR Convention Relating to the Status of Refugees. This is important because states are only obliged to accept asylum applicants who fit into this definition, in other words, someone who fears persecution because of “race, religion, nationality, membership of a particular social group or political opinion”.

The debate focuses on whether LGBT people can be included in the “particular social group” category. There is no indication as to how this should be interpreted or whether the other categories should act as examples. The key characteristic of those other categories (race, nationality, religion) are that they are immutable characteristics, in other words, they neither can be or should have to be changed. Furthermore, procreation, history and culture are integral concepts to these identities. Given this line of reasoning, only people who have immutable characteristics and can procreate to continue an involuntary line of shared culture and history should be included in the “particular social group” category. If such a definition were to pertain then LGBT people cannot be included because a lack of those features means their association with each other is voluntary.

Another complexity is related to how far we may argue prosecution in a state equals persecution. A state may legislate against and prosecute LGBT people and for another state to offer asylum on these grounds amounts to a criticism of that state’s laws.

In recent years, a combination of the development of human rights discourse with the precedents set by recent case law has propounded the issue in favour of LGBT people. In the case of an Iranian man in 1996, the court ruled that Iran’s prosecution of LGBT people did have persecutory intent. The court was able to rule this by looking at the European Convention on Human Rights and how it differed from Iranian laws. Regarding, the debate over the “particular social group” category, judges have increasingly ruled in favour. It is now accepted that this category is for non-traditional refugees, such as LGBT people, to have an entry-point to claiming asylum.

However, despite this, in the UK, asylum seekers face a Home Office whose ethos is steeped in disbelief and the determination to cut the number of successful applicants.
For LGBT asylum seekers, it is particularly hard to prove your sexual orientation. Medical reports, love letters and membership of clandestine clubs are sought as evidence, but few asylum applicants have this kind of proof. In fact in 1995, a judge suggested a Romanian man should have an anal examination to confirm he was, as he claimed, gay. Moreover, claimants that do not reveal their sexuality straight away are seen as embellishing. This is related to a lack of understanding within the asylum process; in many countries, LGBT people are made to feel shame, therefore, it is not something that is easy to reveal to Home Office interviewers immediately.

Homophobia and heterosexist views compound the issue. Applicants that are or have been married, or that have children, are often assumed bogus because decision-makers do not understand cultural issues and the taboo of homosexuality in many states. Decision-makers may use stereotypes to help judge whether a claim is bogus, for example, assuming a woman that is feminine cannot be gay. Now that LGBT people are included in refugee law, issues to do with passing as a heterosexual and evading persecution by changing how you act are becoming problematic. Due to the unique nature of LGBT issues, the focus is wrongly placed on the victim’s actions, rather than the persecutor’s. In the case of Zia Mehmet Binbasi, the judge implied he should stop being active to avoid persecution! Furthermore, the Home Office’s ‘Country Information Policy Unit’ assesses the human rights situation in countries and produces reports which form the basis of many decisions. Often persecution is understated, for example, it has placed Jamaica as a safe country to return to.

So, what can be done to improve the situation? Changing the universal refugee law itself will never happen. Europe’s ‘fortress mentality’ means it is trying to restrict avenues for claiming asylum rather than expand them. Possible options must be state-developed. For example, training should be offered on sexuality, as well as gender and race, to all those involved in the asylum process. The ‘Country Information Policy Unit’ needs to undergo serious changes and becomes more up-to-date. A final option is to offer LGBT asylum seekers better support and advice by overhauling the process so that coming out and telling stories is easier.

Clearly, attitudes towards all asylum seekers in general need to change. They are real people with legal rights to apply for asylum. They should not be used by politicians as a ‘tough on immigration’-tool to pander to the persecutory intent of right-wing media scaremongering, as increasingly appears to be the case.

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