Abstract
The 1951 Refugee Geneva Convention relating to the Status of Refugees defines the different grounds upon which a person can be recognized as a refugee. However, throughout the years, different reasons of persecution have emerged which were not envisaged by its drafters. Traditionally, these claims have been recognised under the membership of a particular social group ground. This is also the case of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people. When transposing the Qualification Directive 2011/95/EU-recast into their legal systems, some European Union Member States do not explicitly foresee sexual orientation or gender identity as a ground for asylum. This paper aims to analyze what different social group ground approaches exist and what impact these approaches have had on LGBTI asylum cases, as well as to determine the potential role that the interpretation has on them.
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Notes
- 1.
Recalling that the Convention, in art.1(A)(2), contains five grounds: race, religion, nationality, membership of a particular social group and political opinion.
- 2.
Article 33 of the 1951 Geneva Convention proclaims the principle of non refoulement, which forbids States to return asylum seekers and refugees to a country in which they would be in danger of persecution based on “race, religion, nationality, membership of a particular social group or political opinion”.
- 3.
Noting that Aliens seeking lawful status in the United States on account of persecution have three available forms of relief: (1) a petition for asylum, (2) a petition to withhold removal, and (3) a petition for relief under the Convention Against Torture (Southam 2011).
- 4.
Latin for “of the same kind”, used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation (Bouvier 1856).
- 5.
Parole permits an alien to remain in the United States on a temporary basis where the Attorney General “in his discretion [finds] urgent humanitarian reasons or significant public benefit”. According to Title 8 Aliens and Nationality of the U.S. Code.§ II 82(d)(5)(A) (2006).
- 6.
It is important to note that historical circumstances played an important role in this case as well, first there was United States foreign policy during Cold War encouraging dissidents coming from Communist countries to seek asylum in the U.S but also the fact that at the time Courts were reluctant and cautious when it comes to recognize LGTB rights which was part of their domestic policy.
- 7.
Emphasis added.
- 8.
It should be noted that, although the United States have traditionally followed the protected characteristic test, a change within its jurisprudence has reinterpreted “social perception” as “social visibility” and demanded an unprecedented level of proof (Marouf 2008) i.e. see cases: A.M.E. & J.G.U & N. [2007] v. B.I.A.; C.A., & N [2006]).
- 9.
Emphasis added.
- 10.
Subsequently, this same Court had the opportunity to rule about a similar issue. Although the central debate was the credibility of the applicants and the ways of proving their sexual orientation, the Court assumed that LGTB asylum seekers form indeed a social group CJEU (A, B, C/Raad van State and Staatssecretaris van Veiligheid en Justitie –Netherlands [2014] para.8,10).
- 11.
This could be the case, for example, in Iran. When asylum claims were made by homosexuals of this country, many European authorities considered that the homosexuals in Iran may act very differently in public and private spaces as they feel freer to be themselves in their private spaces within the Iranian society. That in the latter is where homosexuals could live their life comfortably provided that the relationship is kept private and not talked about and that the Iranian authorities tolerated such behavior with the condition that they are not exposed in public places (Jansen and Spijkerboer 2011).
- 12.
Also there is no specific mention of intersex people or bisexuals. This could be due to the fact that, as laViolette (2010) pointed out, it would be useful to clearly reference the fact that in all traditional and patriarchal societies, in which non-conformity to clearly defined gender roles is not tolerated, people who identify as the opposite sex, have reason to fear persecution. One might still rely on the idea that the sexual orientation of an asylum seeker is only to be taken seriously when the applicant has an “overwhelming and irreversible” inner urge to have sex with a person of the same gender. These stereotypes exclude persecuted bisexuals (Jansen and Spijkerboer 2011). The approach could further marginalize specific minority groups: whilst gay, lesbian and transgender movements are slowly emerging in many countries around the word, movements for bisexuals and intersex individuals are not keeping pace. As such bisexual and intersexual individuals may not benefit from such developments and may fail to meet the burden of the “social visibility” test (LaViolette 2010). Once again, the context is very complex especially taking into account the different perceptions and beliefs a country, let alone a society, can have.
- 13.
Not all Member States of the Council of Europe are also Member States of the EU, nor are all Member States apart of the CEAS.
- 14.
As reported by the FRA, by the end of 2014, the QD recast was implemented in 22 EU Member States. Among them, at least Greece, Italy, Luxembourg, Portugal and Slovenia included “gender identity” also as noted at the Fleeing Homophobia 2011 case report, Bulgaria has not implemented Article 10(1)(d) concerning the definition of sexual orientation as a persecution ground into its national Asylum Law (FRA LGBTI 2015 report).
- 15.
See for instance, Tribunal Supremo (Supreme Court) cases Section 5, of February 24, 2010 RC 1156, October 10, 2011 RC 3933, and Section 3 of September 21, 2012.
- 16.
For instance: a homosexual who does not behave in a feminine way, people who have children or/and have been married with a person of the opposite sex, besides, burden of proof for bisexual applicants might face even more challenges.
- 17.
See also UNHCR guidelines that were mentioned in this judgement, notably Note on Burden and Standard of Proof in Refugee Claims (1998, para.6).
- 18.
For further illustrative cases about European States different practices see Fleeing Homophobia (Jansen and Spijkerboer 2011), Asylum Claims Related to Sexual Orientation and Gender Identity in Europe report as well as the Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers, made by the FRA (2017).
- 19.
As one of the judges of the Australian case law pared (See Sect. 9.1.2): “the insertion of the social group category (…) was intended to include groups that would not be identified by any of the other categories of discrimination. Whether or not the term a particular social group would be wide enough to encompass those other categories.” (para.19, 21) The definition of “safety net” here might be relevant if one takes into account that many authorities can interpret it as indeed a residual category without any explicit legislative support nor recognition.
- 20.
This is for instance the case of Spain in accordance with the provisions of the Qualification Directive.
- 21.
Discussions on this reform are currently ongoing. A Regulation have legal effects simultaneously, automatically and binding in all the national legislations (art.288 of the Treaty on the Functioning EU States).
- 22.
For instance, they propose to change the wording of art.10 of the current QD-recast (see Sect. 9.2.1) changing the might and replace it with “shall include a group based on a common characteristic of”. Thus imposing an obligation rather than a recommendation, it does not create a fully independent category but instead expressly names it within the membership of a social group one.
- 23.
In October 2016 the National Assembly in France passed the “Law about justice in the 21st Century” (La loi sur la justice au XX1eme siècle) which included provisions relating to legal gender recognition. Same-sex marriage became legal in Germany on 1 October 2017. On July 2017, Malta’s parliament agreed to amend its marriage act, replacing words like “husband” and “wife” with the gender-neutral alternative “spouse”.
- 24.
It remains unclear what exactly qualifies someone as vulnerable (Flegar 2016) although, as ILGA-Europe reported, in the proposed regulation on the EU Asylum Agency (COM (2016) 271 final), there are numerous references to “vulnerable groups” and “vulnerable persons”, but no definition of vulnerability is provided either. They recommend that such definition should be inserted in the proposal including vulnerability based on sexual orientation, gender identity, gender expression and sex characteristics. The emerging concept of “vulnerability” and “vulnerable groups” would lead to another academic article.
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Begazo, M.G. (2019). The Membership of a Particular Social Group Ground in LGBTI Asylum Cases Under EU Law and European Case-Law: Just Another Example of Social Group or an Independent Ground?. In: Güler, A., Shevtsova, M., Venturi, D. (eds) LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective. Springer, Cham. https://doi.org/10.1007/978-3-319-91905-8_9
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