SOGI claims of asylum in EU member states: aiming for inclusion beyond classification

Introduction

After 2015, several European countries witnessed an increase in asylum applications on grounds of Sexual Orientation and/or Gender Identity (SOGI) (European Asylum Support Office, 2021). SOGI claims of asylum differ from other claims due to their focus on inherently private characteristics (UNHCR, 2012). Indeed, sexual orientation refers to “a person’s physical, romance and/or emotional attraction to a gender”, while gender identity refers to “an individual’s own, internal sense of being a man, a woman, or outside of that gender binary” (Fenix Humanitarian Legal Aid, 2022, p. 2). In fact, recent reports and research (Jansen & COC Netherlands, 2018; Dustin & Ferreira, 2021; Fenix Humanitarian Legal Aid, 2022) have repeatedly shown how European asylum procedures continue to display harmful practices when handling those claims. To address these issues, this policy brief examines how authorities involved in European asylum procedures should aim for inclusion of individuals and their specific needs beyond the mere classification of their claim as a SOGI one. Three policy recommendations reflecting the most pressing issues and most pragmatic solutions are offered to that end. Finally, the preferred term in this contribution will be “SOGI asylum claim” rather than “LGBTQ+ asylum claim” to reflect recent debates surrounding the choice of more inclusive words (Dustin & Ferreira, 2021; Fenix Humanitarian Legal Aid, 2022). 

Understanding SOGI asylum claims through the legal context

Being a SOGI minority in the world: challenges and vulnerabilities

In 2022, 67 countries continue to criminalise consensual same-sex sexual acts, with sanctions going from imprisonment to the death penalty (Human Dignity Trust, 2022). But also outside of these countries, individuals can face discrimination and persecution because of their real or perceived sexual orientation or gender identity. That is why many are forced to leave their homes and look for a safe place to be themselves (UNHCR, 2021). Despite the lack of hard data on migrating SOGI minorities, qualitative studies suggest that discrimination and persecution often follow them while in transit, in reception centres and during asylum interviews, making them particularly vulnerable (Fenix Humanitarian Legal Aid, 2022; Safe Place International, 2022). For all these reasons, in recent years many international and national bodies implemented legal frameworks to answer those challenges.

The existing legal framework to articulate SOGI claims of asylum

First at the international level, the 2012 UNHCR’s Guidelines on International Protection No. 9 constitutes the number one guidance to help decision-makers handle SOGI claims of asylum. It states that the 1951 Refugee Convention and its 1967 Protocol must be interpreted and applied according to the principle of non-discrimination and that a perceived or real SOGI constitute relevant grounds for a refugee claim (UNHCR, 2012, p. 3). Over the years, the UNHCR developed additional guidelines and tools to raise awareness on the specific needs and features of SOGI claims of asylum (Danisi, Dustin, Ferreira, & Held, 2021; UNHCR, 2021).

At the European level, the EU Qualification Directive of 2011 declared that sexual orientation could be invoked as a “particular social group” (PSG) ground while gender identity should be given due consideration in evaluating the membership of a PSG (European Commission, 2020; European Asylum Support Office, 2021). The Court of Justice of the European Union (CJEU) further engaged with the issue in two key decisions (Fenix Humanitarian Legal Aid, 2022). First, the XYZ judgement in 2013 decided that gay asylum seekers could not be asked to hide their sexual orientation to avoid persecution in their country of origin (CoO) (European Asylum Support Office, 2020). A year later, the ABC decision prohibited certain methods to assessing the credibility of a SOGI claim of asylum, including phallometry, pornography, explicit questions about sex, and decisions only based on stereotypes (Jansen & COC Netherlands, 2018).

Finally at the state level, many countries acknowledged in their legislation the need to protect SOGI minorities and their right to qualify as refugees on those grounds (UNHCR, 2021). The Netherlands was the first European country to grant international protection to SOGI asylum claimants in 1981 under the “particular social group” ground. The practice was then gradually adopted by other countries; today, Bulgaria, Denmark, Czech Republic, Lithuania, and Estonia are the only EU member states which do not mention sexual orientation in their asylum laws (Danisi et al., 2021; ILGA Europe, 2022). Overall, these legal frameworks show states’ willingness to protect SOGI minorities. However it is worth mentioning that the current rise of populism and far-right ideas in many European countries affect all asylum seekers – including SOGI ones – by creating a hostile environment of restrictive migrations and asylum policies (Danisi et al., 2021; Chossiere, 2022). 

Seeking asylum on SOGI grounds in Europe: the persistence of harmful practices

When applying for asylum on the grounds of their SOGI in Europe, an applicant must go through several steps, including the credibility assessment of the said SOGI and of the well-founded fear of persecution on those grounds. Then, the impossibility of state protection in the country of origin must be established (Dustin & Ferreira, 2021; Fenix Humanitarian Legal Aid, 2022). All those steps are especially challenging in the case of SOGI minorities who usually do not have much evidence to support their claim (Fenix Humanitarian Legal Aid, 2022). That is why much relies on the applicant’s testimony and ultimately on states which have the power to decide who is a SOGI minority and deserve international protection, and who does not (Quinan, Theewis, & Cienfuegos, 2020). 

A fragmented and inconsistent application of international standards

The first problem in European asylum procedures for SOGI claims is the fragmented and inconsistent application of asylum regulations and guidelines (Danisi et al., 2021; Safe Place International, 2022). This assessment was already made by Jansen & Spijkerboer (2011) more than ten years ago and yet, some practices in EU member states still do not conform neither with international standards nor with the Common European Asylum System. For instance, Italy has stood out in recent years for respecting guidelines and implementing inclusive practices, notably in the choice of the interviewer for SOGI claims of asylum (Danisi et al., 2021). On the contrary, five years after the XYZ judgement, Dutch caseworkers were still asking claimants about the extent to which they would express their SOGI in the case of a return to their country of origin (Jansen & COC Netherlands, 2018). This line of questioning corresponds to the “discretion requirement” that was prohibited in 2013. 

But even when laws and guidelines are translated into practice, other behaviours in EU asylum procedures remain problematic. According to a survey conducted by Danisi et al. in 2021, among problems encountered in asylum procedures, the most cited by people working with SOGI asylum seekers relate to credibility assessment (81%), stereotyping (60%), Country of Origin Information (COI) (48%), and “discretion” reasoning (40%). 

Authorities’ lack of understanding of the vulnerability and needs of SOGI asylum claimants

Many research and testimonies indicate that SOGI minorities are treated like other applicants during asylum procedures, even when it can harm them (Safe Place International, 2022). For instance, Dutch and Greek authorities always try to provide interpreters coming from the applicant’s country of origin thinking that it will make them more comfortable. Yet, in the case of SOGI minorities, being faced with someone from their CoO would likely prevent them from revealing their SOGI in the fear of being persecuted once again (Safe Place International, 2022). In addition, the UNHCR (2021) also reported that many adjudicators do not use respectful terminology while addressing SOGI minorities; transgender asylum seekers are for example often misgendered. This translates a general lack of knowledge in Europe about the particularity of SOGI claims and the barriers applicants can face in articulating such a claim (Fenix Humanitarian Legal Aid, 2022).

The great difficulty of proving a SOGI and the erasure of diverse experiences

Today, the credibility assessment constitutes the biggest challenge with SOGI claims of asylum and their first cause for rejection (Jansen & COC Netherlands, 2018; UNHCR, 2021). In fact, for the UNHCR self-identification is only considered as an indication of a person’s SOGI, while for the CJEU it is simply the starting point of the procedure: in any case, it is not deemed good enough for establishing a claimant’s credibility (Zisakou, 2021). Faced with this challenge, adjudicators in EU member states are only left with their misconceptions and questionable interview techniques to guide them (Jansen & COC Netherlands, 2018). In fact, despite Guidelines No. 9 and the ABC ruling stating that a decision cannot be solely based on stereotypes, they still hold an important place in many asylum interviews. Indeed, stereotypes and misconceptions can be detrimental in the way they want to force all SOGI experiences into a Eurocentric understanding of it (Zisakou, 2021; Fenix Humanitarian Legal Aid, 2022). For instance, many European adjudicators expect applicants to go through a painful process of self-realisation accompanied by feelings of shame, suffering and self-hatred (Zisakou, 2021). This belief was described by Jansen & COC Netherlands (2018) as the biggest issue in “Dutch LGBTQ+ asylum policy”. Similarly, the Greek Asylum Service uses a model questionnaire with questions such as “How did your life change after realising that you are homosexual?” (Zisakou, 2021, p. 6). As a result, applicants that do not conform to this belief and have always been proud of their identity are less likely to see their claim considered credible by EU authorities (Jansen & COC Netherlands, 2018; Zisakou, 2021). Zisakou’s (2021) study based on 60 SOGI claims in Greece showed that half of the applicants were asked in detail about the process of their “self-realisation”, and not one succeeded in getting international protection. Cultural contexts also seem to be ignored by many adjudicators: studies have shown that in Germany, having children can be discrediting for gay applicants and their SOGI claim (Danisi & Ferreira, 2022). Yet it is quite common for lesbians to be married and to have children in their CoO because of cultural constraints and social pressure: this should not be a reason to discredit a SOGI claim (Dustin & Ferreira, 2021; Danisi & Ferreira, 2022).

All these normative practices illustrate a failure to acknowledge the diversity and fluidity of SOGI asylum seekers experiences (Thevenet, 2017; Zisakou, 2021; Fenix Humanitarian Legal Aid, 2022). Applicants should not have to conform to Eurocentric and normative fixed narratives of what it means to be of diverse SOGI or to be vulnerable (Fassin & Salcedo, 2015). 

Inconsistent research and application of COI

The making and application of Country of Origin Information (COI) regarding the rights and treatment of SOGI minorities greatly varies depending on EU member states. For instance, Germany and Italy appear to have relatively low standards for COI compared to the Netherlands or the United Kingdom (Jansen, 2014). This issue was extensively commented on in several EASO reports. In its 2021 COI Research Guide on LGBTIQ, the agency acknowledged the challenge of producing good COI about SOGI minorities due to the varying terminology and the difficulty of finding reliable sources and specific information. Besides, studies showed how a lack of COI directly affects the credibility of the claim, even though a lack of evidence of criminalisation does not mean that there is not (UNHCR, 2013; 2021). On the contrary, the most repressive states are often those where reliable data is the least accessible: this further complicates SOGI credibility assessment (UNHCR, 2021).

Why does it matter? Institutionalised bad practices infringe SOGI asylum seekers’ rights and dignity

The harmful practices described above have clear repercussions on applicants. The asylum procedure can be a violent experience where individuals feel compelled to reveal their SOGI and are met with scepticism when not conforming to the caseworkers’ stereotypical perspectives (Fenix Humanitarian Legal Aid, 2022). Indeed, the pervasive culture of disbelief led some claimants in Germany to call the asylum procedure “unfair”, “horrible” or “absurd” (Danisi et al., 2021). As research has shown, displaced individuals of diverse SOGI can be especially vulnerable in terms of mental health and psychosocial well-being: they have higher rates of depression, anxiety, or suicidal thoughts (UNHCR, 2021). Therefore, intrusive and not-sensitive questions about sexuality can (re)trigger trauma, a sense of powerlessness and general psychological suffering (Quinan, Theewis, & Cienfuegos, 2020; Fenix Humanitarian Legal Aid, 2022). Finally, many studies show that a good number of SOGI claims are ultimately granted, but always at the cost of a long and traumatising asylum procedure (Dustin & Ferreira, 2021). 

Policy recommendations

EU asylum systems have significant economic, political, and logistic constraints weighing on them, but the three following recommendations taken together will provide a realistic answer to the challenges presented above (Danisi et al., 2021). Prior to any change, this policy brief would like to remind EU member states of the need to follow existing laws and guidelines related to SOGI claims of asylum. 

1. The European Commission should coordinate the upgrade of training and guidelines on how to handle SOGI claims of asylum 

First, this policy brief advocates for more consistent training on SOGI issues for all actors involved in the asylum procedures, including law enforcement authorities, caseworkers, adjudicators, and interpreters (Jansen & Spijkerboer, 2011; Jansen & COC Netherlands, 2018; Danisi et al., 2021; UNHCR, 2021). The EU Commission and EUAA should be responsible for upgrading and standardising training on SOGI-related matters in all member states. This would be consistent with the Commission’s LGBTIQ Equality Strategy 2020-2025 and it would help limit the widespread use of stereotypes in asylum decisions (Jansen, 2014; Fenix Humanitarian Legal Aid, 2022). Training sessions should tackle diverse topics such as terminology and pronouns to address SOGI minorities, the spectrum of sexuality and gender, an intersectional perspective on SOGI, and SOGI asylum seekers’ needs and challenges. Continuous training – starting when staff members are recruited – would be the most effective to ensure stakeholders understand that only poor decision-making can result from an assessment based on stereotypes (UNHCR, 2021; Zisakou, 2021; Fenix Humanitarian Legal Aid, 2022).

Second, this intensified training should be accompanied by revised guidelines on SOGI asylum claims (Dustin & Ferreira, 2021). As advised by the UNHCR in 2021, there is a need for updated interview techniques that include an understanding of diverse SOGI. The EUAA in collaboration with national asylum services could take the responsibility to issue regular internal guidelines. These guidelines should refer to the terminology used today for SOGI issues and should clearly state that relying on Eurocentric models such as the “self-realisation” narrative is not helpful to assess a SOGI claim (Jansen & COC Netherlands, 2018). 

If issues as complex as the weight of stereotypes cannot be resolved instantly, raising awareness on this is fundamental so asylum authorities can question their decision-making abilities (Danisi et al., 2021). A cause for optimism can be found in existing good practices as witnessed in the Netherlands, Sweden or the United Kingdom where explicit and publicly available guidelines on how to handle SOGI claims of asylum have been issued for several years (Jansen, 2014). Moreover, in Sweden seminars are organised specifically for interpreters to help them deal with the nuanced interpretation of the glossary of SOGI terms (Jansen, 2014). 

2. EUAA and member states should collaborate to improve the making and application of COI 

As discussed by many authors (Jansen & COC Netherlands, 2018; Dustin & Ferreira, 2021), it is imperative for COI reports to have dedicated and up-to-date sections on the situation and rights of SOGI minorities in countries of origin. These sections should not be limited to the situation of gay men but should also include lesbians, bisexuals, transgender and intersex individuals (Dustin & Ferreira, 2021). Ideally, the diversity of SOGI minorities should also be addressed in COI, by considering differences and specificities in socio-economic situations for instance. Testimonies of SOGI minorities in the CoO could also help gather information (Danisi et al., 2021). EUAA should continue its endeavour to update COI Research Guides and take the lead to ensure better research of COI both in its agency and in EU member states, since efforts in that sense would improve decision-making (Dustin & Ferreira, 2021). To that end, the agency can look at good practices implemented by the UK Border Agency or the Dutch Ministry of Foreign Affairs to systematically include sections on LGBTQ+ individuals in all their country reports (Jansen, 2014). 

Application of COI should also be improved. This is especially significant when no or few information can be found about SOGI minorities in the country of origin: it should not be used to claim there is no well-founded fear of persecution (Dustin & Ferreira, 2021). In those cases, decisions should reflect the lack of accurate information and apply the principle of the “benefit of the doubt” (Jansen & Spijkerboer, 2011). Finally, this emphasis on rigorous COI might also help circumscribe adjudicators’ stereotypes and complete the benefits of training seen above.

3. The applicant’s self-identification should be considered as a reliable starting point for credibility assessment

Finally, this policy brief joins other calls to acknowledge applicants’ self-identification as a reliable starting point and in fact the best evidence of a person’s SOGI (Jansen & COC Netherlands, 2018; Danisi et al., 2021; UNHCR, 2021). This would be in line with the spirit and letter of the Refugee Convention and the Guidelines No. 9 which emphasises the importance of the applicant’s statement, especially when COI is lacking (Dustin & Ferreira, 2021). Meanwhile, it could start a deeper discussion on the (im)possibility to determine a person’s SOGI other than by asking them (Jansen & COC Netherlands, 2018). It seems that today adjudicators more often look for a reason to discredit a claim rather than assessing if they should grant international protection and if there is a risk of persecution (Danisi et al., 2021; Dustin & Ferreira, 2021). Yet, the main attention should be on this fear of persecution rather than the claimant’s identity (Dustin & Ferreira, 2021). Therefore, the above recommendations combined could enable the emergence of a new method based on the recognition of self-identification, the principle of the benefit of the doubt, and a real inclusion of SOGI asylum seekers and their needs (Dustin & Ferreira, 2021).

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