This article is penned by Shambhavi Upadhyay, from Symbiosis Law School, Noida. The article deals with the recent developments concerning asylum-seeking rights based on one’s sexuality and its procedure around the world.

Introduction

In the landmark case of Navtej Singh Johar v. Union of India, the Supreme Court of India scrapped parts of Section 377 of the Indian Penal Code (IPC). Before this judgement of September 6, 2018, India was amongst the countries where homosexual sex between consenting adults was a crime. 

Sexual orientation refers to the emotional, affectional and sexual attraction towards individuals of the same or different genders or more than one gender. People who have affection or attraction towards people of the same gender or both genders fall under the wide spectrum of the LGBTQI community. It is a personal human choice. However, many social agents exercise control over public opinion, as well as the rules and legislations of a country.

Humans tend to prefer things in black and white, and avoid the greys that are against the alleged ‘natural order’. This is why LGBTQI individuals have long been facing marginalization, violence and discrimination in various forms that compound to create a huge human rights katzenjammer. 

Unfortunately, there are as many as 75 countries where homosexuality and/or homosexual conduct is still criminalized. Out of these 75 countries, 13 implement death penalties for those who violate such inhuman laws. These persecutions when backed by State laws leave such individuals no choice but to flee their land. 

How many cases

The HRW (Human Rights Watch) in its 2020 report “Every Day I Live in Fear: Violence and Discrimination Against LGBT People in El Salvador, Guatemala, and Honduras, and Obstacles to Asylum in the United States”, reflected upon the recurring occurrences of hate crimes in these Latin American countries known as the Northern Triangle. The report also highlighted how some people were subjected to violence at the hands of their own families, leading them to flee home as young as eight years old. 

Due to limited protections under national law, most of these asylum seekers turn to the US-Mexico border. Asylum applications from Central America and Mexico make up about half of all applications to the United States. More than 7,000 Indians sought asylum in the US in 2017, according to data from the United Nations Refugee Agency, that is before the Supreme Court scrapped Section 377. 

At the age of 14, a lesbian from El Salvador was forced to a marry man who was 54 years older than her to “cure” her of her homosexuality. She gave birth to two children as a result of rapes within the marriage alliance. The migration office did not recognize these damages as persecution on account of a protected ground. 

Later, the Center for Gender and Refugee Studies along with several women’s and LGBT rights organizations, argued that she was forced into the marriage and suffered mental and physical abuse due to the reasons of her sexual orientation, and was therefore persecuted. The government then rescinded its order of her expedited removal and allowed her to present her claim for asylum before an immigration judge. Many such cases happen in countries all around the world, which is why asylum becomes essential to escape such exploitation. The precise data about which is not completely available.

Sexual orientation as grounds for asylum

• The sexual identity of a person is an integral part of his/her/their identity, which shall not become a reason to be looked down upon by the society, punishment by the state, or subjugation by laws.

• All people are entitled to enjoy the protection of their human rights based on equality and nondiscrimination.

• Article 1 of the Universal Declaration of Humans Rights provides that “all human beings are born free and equal in dignity and rights” and Article 2 declares that “everyone is entitled to all the rights and freedoms set for in this declaration”.

• In 2007, the Yogyakarta Principles were introduced which focussed on the application of International Human Rights, 1951 Refugee Convention and its 1967 Protocol, about sexual orientation and gender identity. However, not binding, the principles help connect the dots between International Rights and the problem of persecution of Sexual minorities.

• The 23rd principle highlights that “Every person has a right to seek and enjoy in other countries asylum from persecution. A state may not expel or extradite a person to any state where that person may face a well-founded fear of torture, persecution, or any other form of cruel, inhuman or degrading treatment or punishment, on the basis of sexual orientation or gender identity.”

Standing as a social group, political opinion or religion

People seeking asylum are generally seen as belonging to a particular social group. To identify a social group, the UNHRC looks at the characteristics that are “innate, unchangeable, or which is otherwise fundamental to identity”, as well as the “perceived” nature of the group by the society. Homosexuals, therefore, form a subset within that category given their fulfillment of such requirements. 

It can also be seen that the issue of a person seeking asylum not only fulfills the requirement of a social group but also the criteria under the 1951 Refugee Convention of political opinion and religion.

A person’s sexuality may also constitute his/her/their political opinion which may not be popularly accepted or might as well be against the political policy of the country. This makes them more vulnerable to persecution and also adds up as a criterion under the Refugee Convention.

In societies around the world, where religion still plays a decisive role in checking the deviance of individuals, sexuality may or may not be in tandem with the accepted norms. It is usually seen as a sin, disorder, or a deliberately antisocial act. This observation is not limited to any specific geographical area but is sporadically yet widely spread across the globe.

This leads to the isolation of these individuals by the religious-institution that they belong to. Such individuals then face further persecution in the forms of forced corrections, marriages, or supernatural beliefs that may result in physical punishments.

A well-founded fear of being persecuted

While checking the details of a person to grant him/her/them asylum based on their sexuality, an important check is of the “well-founded fear.” The term “persecution” does not carry a specific meaning embedded in an international law or any convention. It varies according to the background of a case. However, it is mostly expected to involve human rights violations, constituting harm to freedom or life. Such violation or harm need not be from the state itself to be termed as persecution. Threat from the non-state-actors, like the population itself, also counts as persecution.

An individual may already be under enormous mental pressure due to the fear of not-being-accepted. Additionally, a person would not want to draw the attention of the state towards himself/herself/themselves by seeking protection, and would preferably seek asylum elsewhere. To prove the “well-founded fear” one does not need to prove that he was compulsorily subjected to persecution or that the authorities of his/her/their state knew about his sexuality. The knowledge of similar cases happening in the state of origin and the aversion of the state towards homosexuality serves as valid foreseeablity. 

Laws, regulations and practice in the Scandinavian countries 

The three Scandinavian nations, Denmark, Norway, and Sweden, receive a substantial number of asylum claims each year and are liberal in their policy towards the LGBTQI community. However, this does not explicitly mean that they also have enough laws and regulations to provide asylum to the gigantic number of applications that they receive. 

Denmark

Denmark became the first country to grant legal recognition in 1989 to same-sex unions in form of registered partnerships and gave marriage rights in 2012. The Danish Aliens Act does not state sexual orientation as a ground for seeking asylum, but it protects via the Refugee Convention 1951.

Although the country has been a vociferous supporter of LGBTQI rights, statistics do not provide a clear picture of how many individuals have been provided asylum based on their sexual orientation. The Refugee Appeals Board has rejected many applications on the basis that neither his/her/their orientation is known to the native country’s authorities nor the country holds a record of persecuting sexual minorities. Asylums have been successfully granted to individuals who belong to countries where homosexuality is explicitly criminalized.

Norway

Norway, in 2016, became the fourth European country to pass legislation allowing the change in legal gender of a trans person based solely on self-determination. Asylums are provided under the Norwegian Immigration Act, which was made to ratify the Refugee Convention.

The Directorate of Immigration (UDI) and the Immigration Appeals Board (UNE) process the applications seeking asylum in Norway. The decisions of UDI can be appealed before the Immigration Appeals Board, a separate administrative agency. Decisions of UNE, however, may only be appealed before an ordinary court of law. According to data available from these agencies, 80% of the applications were rejected out of 187 due to the “orientation of the asylum seeker not being credible”. 

Special attention was paid to the socio-cultural adjustability of the asylum seeker in the nation of birth, to assess the potential danger to his/her/their human rights until 2012, when the Norwegian Supreme Court scrapped the practice off.

It is observed by many research papers that immigration authorities generally favour asylum seekers whose definition of sexual orientation fall in line with Norwegian understanding of gay or lesbian, which makes the process uncertain. 

Sweden

Sweden received 21,502 applications for protection in 2018, out of which 66.1% were rejected. The Aliens Act 2005 regulates the protections provided to asylum seekers. An applicant can, upon rejection, claim new circumstances that would increase the risk of persecution in their native country.

The nation also, in 2016, amended the 1994 Law on Reception of Asylum Seekers. This replaced the provision of a permanent residence permit with a temporary permit for people in need of protection. This may either be renewed if the need for asylum persists, or apply for permanent ones given they sustain themselves. 

Swedish Migration Agencies however seemingly fail to understand that the absence of subjugating laws in the native country does not mean that the sociocultural conditions are conducive to the individual’s freedom, safety and security. It fails to consider cases based on the personal experiences of the individual and relies heavily on the legislations of their native countries instead.

The asylum procedure

The first step while seeking asylum based sexual orientation is to apply for it. There are Migration/Refugee/Immigration agencies of the countries who look into such applications and further work on the process. 

This is then followed by a second step which is usually an interview (subject to the country concerned), which would require the immigrant to bolster his/her/their claim in front of the officials. 

They are expected to successfully demonstrate that they are outside their country of nationality, fear persecution, the fear is well-founded, fear persists because of the reason of “race, religion, nationality, membership of a particular social group or political opinion”, and owing to this fear they do not wish to return to their country of origin.

Depending on the country in which the asylum is sought, they may be required to prove the veracity of their facts and reasons to believe that they are not safe in their country. And may also be asked to prove their sexuality. 

For this purpose, the UNHCR’ has recommended using the asylum seeker’s testimony as evidence backed by other proofs that may not involve personal check-ups through a clinical lens. Many courts over the world too have ruled rejecting the sexuality tests for homosexual asylum seekers.

Other facts related to the fear of persecution in their countries of origin, the immigration agencies rely on consulate reports, fact-finding missions, and reports from NGOs like Amnesty International and Human Rights Watch.

Information to asylum seekers

The most important source of information for asylum seekers may come from the lawyers or legal experts of the countries that they wish to apply to. There may be legal-aid cells that provide help free of cost. However, sometimes due to high fees and mostly unfavorable financial conditions it may not be feasible to find a great lawyer. This is where NGOs and social bodies step in. Well-established NGOs that have been working on such matters for a long time know the right sources and the right prerequisites for the applications to succeed. 

In addition to the information they can provide, they may also be able to provide the moral and emotional support that individuals need at such tough times. They may help the individuals open up and practice expressing their stories before facing the interview and fact-checking by the officials. 

Conclusion 

There being no explicit guideline for granting asylum based on sexual orientation, the methods followed by countries to shortlist genuine applications vary. However, this method may not lead to the desired result and is the reason why not many asylums are granted in contrast to the applications made. 

Although the awareness in societies regarding the LGBTQI community is increasing, the globe still has a long road to travel. The distinction between the colours of this spectrum is not clear to everyone. Societies need to be sensitized towards these communities who have long been fighting for the rights that they are entitled to.

Countries that have not decriminalized homosexuality or same-sex marriages may be indirectly pressured through global meets, summits and, treaties and conventions. However, an international law catering to the problems of homosexual asylum seekers is long awaited. 

References

• https://cgrs.uchastings.edu/our-work/lgbt-related-violence
• https://laist.com/2019/09/02/thousands_of_indians_facing_persecution_back_home_seek_refuge_in_california.php
• https://www.unhcr.org/en-us/5829e36f4.pdf
• https://www.unhcr.org/4b18e2f19.pdf
• https://www.coc.nl/wp-content/uploads/2017/04/Norwegian-practices-Andrea-Gustafsson-Gronningsaeter.pdf
• https://ntnuopen.ntnu.no/ntnu-xmlui/bitstream/handle/11250/2448634/DENIZ% 20 A K IN.pdf?sequence=5
• https://uu.diva-portal.org/smash/get/diva2:1341742/FULLTEXT01.pdf
• https://www.migrationsverket.se/English/Private-individuals/Protection-and-asylum-in-Sweden/If-you-are-an-LGBTQ-person-who-is-seeking-asylum.html

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: