Forced migration – no matter how we wish to define it – has been high in the political agendas and debates across the world for several decades. Forced migrants become claimants of international protection, or ‘asylum claimants’, and then find themselves trapped in convoluted, constraining and highly politicised systems. Often accused of being ‘bogus’ asylum claimants, they are also regularly accused of abusing the hospitality of the host country, violating countries’ borders and territorial sovereignty, and simply seeking economic benefits (Ford 2009; UNHCR 2007). Conversely, asylum legal instruments have been repeatedly criticised for inadequately addressing the rights and needs of asylum claimants, therefore preventing those with legitimate claims from being granted protection. These debates have more recently been rehashed in the context of the negotiations behind the Global Compact for Safe Orderly and Regular Migration, a non-legally binding agreement negotiated under the aegis of the United Nations (UN) and endorsed by the UN General Assembly. In this atmosphere of permanent politicised and humanitarian ‘crisis’ (McAdam 2014), a group warranting specific attention is constituted by those asylum claimants presenting a claim based on their sexual orientation or gender identity (SOGI).
I’m here, stuck. I’m invisible in this country, nobody sees me, nobody sees my accomplishments, I am invisible.
(Marhoon, Germany)(Throughout these volumes, asylum claimant and refugee participants will be referred to only by first name/pseudonym and host country to safeguard their anonymity; references to other categories of participants will specify the capacity in which they were interviewed. Survey participants will be referred to by codes: C corresponds to claimants and S to supporters. More details about our methodology can be found in Chap. 2.)
The situation [for SOGI claimants] is disastrous…
(Maria Grazia, decision-maker, Italy)
Where to start! The whole system is broken and not fit for purpose, so of course this affects LGBTQI+ people along with everyone else.
(S110, NGO volunteer, UK)
1 Seeking Asylum: Why Focus on Sexual Orientation and Gender Identity
Forced migration – no matter how we wish to define it – has been high in the political agendas and debates across the world for several decades. Forced migrants become claimants of international protection, or ‘asylum claimants’,Footnote 1 and then find themselves trapped in convoluted, constraining and highly politicised systems. Often accused of being ‘bogus’ asylum claimants, they are also regularly accused of abusing the hospitality of the host country, violating countries’ borders and territorial sovereignty, and simply seeking economic benefits (Ford 2009; UNHCR2007). Conversely, asylum legal instruments have been repeatedly criticised for inadequately addressing the rights and needs of asylum claimants, therefore preventing those with legitimate claims from being granted protection. These debates have more recently been rehashed in the context of the negotiations behind the Global Compact for Safe Orderly and Regular Migration, a non-legally binding agreement negotiated under the aegis of the United Nations (UN) and endorsed by the UN General Assembly.Footnote 2 In this atmosphere of permanent politicised and humanitarian ‘crisis’ (McAdam 2014), a group warranting specific attention is constituted by those asylum claimants presenting a claim based on their sexual orientation or gender identity (SOGI).Footnote 3
The precariousness affecting asylum claimants’ legal and social experiences, in general, affects SOGI asylum claimants in very particular ways. This should come as no surprise, as queer migration studies have long revealed sexuality and gender to interact with several other characteristics to be key elements in the power relationships that shape migration (Luibhéid 2004, 2008). A key aspect in this context can be found in rights discourses. Human rights have been increasingly recognised irrespective of one’s SOGI both at an international (Human Rights Council2011; Various 2017) and domestic level. Yet, the legal frameworks of European and other countries, the European Union (EU), and the Council of Europe (CoE) have been slow in tackling the violation of such rights. Members of SOGI minorities across the world often find themselves trapped within borders of territories where they cannot vindicate their rights or secure minimum levels of safety and well-being.Footnote 4 Such state borders are compounded by legal, social and economic borders that further isolate and marginalise SOGI minorities.
It is thus entirely predictable that these minorities often see no alternative to leaving their countries of origin and seeking protection in other countries, where they frequently continue to endure various degrees of harassment, discrimination and violence, perpetrated by both private and public actors (IOM and UNHCR2016; Luibhéid 2008, p. 170; Muntarbhorn 2017; UNHCR2015, p. 27). As Terry, a member of the European Parliament, puts it:
I think there is more awareness today around the problems, that there is persecution because of sexual orientation and gender identity, and that this should actually lead to people having the possibility to find safe haven inside of the European Union. At the same time, we also see that there is a general trend in asylum policies, for the European Union and also the member states of the European Union, to become more restrictive, and so I see that it is harder for asylum seekers to get asylum granted in the end, that it is harder to make their case, and in some member states so hard as if they want to get juridical support, consultancy from NGOs for example, they are restricted to access and so on and so on.
In these volumes we explore the legal and social experiences of those people who flee persecution in their home countries and somehow manage to travel to Europe, where they eventually present asylum claims relating to their SOGI. These claims are commonly perceived by judges, practitioners and academics alike as being particularly problematic. This is due to a mixture of factors, including the increasing number and awareness of such claims, the perceived unfairness in the adjudication of these claims, and the heavily politicised decision-making environment, with some evidence pointing to a disproportionately high rate of refusals on these grounds (UKLGIG 2010). These claims also raise particular issues in relation to different aspects of asylum adjudication, especially the intense social prejudice against these claimants in their country of origin, the role of legislation – namely criminalisation – in the country of origin in endorsing that prejudice, the assessment of credibility, the lack of possibility of internal relocation, and the role of private actors in persecution. Finally, these claimants face particular psycho-social challenges in terms of personal identity and communityintegration in the host state (Jansen and Spijkerboer 2011; UKLGIG 2010, 2013).Footnote 5 SOGI asylum claims are thus of a striking complexity and significance for the purposes of assessing the efficiency and fairness of an asylum adjudication system (Saiz 2004; Tunstall 2006). Importantly, SOGI claimants experience much suffering, as our participants have told us. Ali (UK), for example, asked himself ‘why am I humiliating myself, why am I doing this to myself’, and Lutfor (UK) told us that ‘when I was in the asylum system, I felt it was like I came from another hell to this hell’.
These volumes deliver a much needed European comparative study of SOGI-based asylum claims, thereby contributing to improvements in the standards of law, decision and policy-making. So far, comparativeworks have for the most part concentrated on discrete matters in two or three countries, or attempted to compare a larger number of countries but being unable to offer a theoretically and empirically-informed in-depth treatment of the subject-matter. We combine the best of both approaches, by drawing from insights from a range of countries, as well as offering a theoretically and empirically-informed in-depth analysis of the subject-matter in a selection of key countries in this field. Such comparative approach addresses the urgent need to tackle the lack of reliable data that is currently perpetuating misunderstandings about the plight of SOGI asylum claimants and, in turn, perpetuating discriminatory and exclusionary treatment. Simultaneously, we aim to test whether the racialised, gendered, classist, heteronormative and homonormative legal and social experiences that SOGI asylum claimants undergo in other jurisdictions also take place in Europe (Aberman 2014; see, on intersectionality, Chap. 3). In doing so, we hope to re-politicise, de-criminalise and re-historicise the actions of SOGI asylum claimants escaping persecution and seeking international protection (Judge2010; Chaps. 5 and 7).
Nobody knows exactly how many SOGI claimants there are in Europe, as asylum statistics generally only refer to the overall number of claims/decisions, nationality of asylum claimants, and outcome of procedures (including type of status granted). To our knowledge, only Belgium and Norway (which are not amongst the most statistically significant EU asylum host countries: EUROSTAT 2019) collect statistics regarding the claimants’ SOGI (European Migration Network 2016), and the UK has – and only since 2017 – released experimental statistics regarding asylum claims on the basis of sexual orientation (Home Office2017, 2018a, 2019). The very limited (and often poor) collection of this data (ICIBI2014, p. 42 ff), despite decades of advocacy, can be seen as strategic – and even a tool of control by public authorities – to limit the strength of advocacy efforts on behalf of these claimants and force advocates into the realm of speculation (Kadir, NGO worker, Germany). Although it is recognised that statistics should be as thorough as possible, there are practical issues and deficiencies that prevent statistical high standards across the EU, and, as a European Commission staff member has told us, including information regarding claimants’ SOGI is also problematic owing to the sensitive nature of this data. The judiciary also seems to oppose collection of this data: Harry, a UK senior judge, suggested to us that ‘it would be too controversial, wouldn’t it, really?’, and Adrian, another UK judge, also stated that ‘we don’t keep statistics of that sort, obviously, it would be quite wrong to do so’. Similarly, according to the German government, it is the claimant’s decision to inform government institutions about their SOGI. This cannot be asked routinely, as SOGI can be of relevance during the asylum process but may not be. In contrast to the UK, the German government argues that the right to freedom of choice with regard to the use of personal information needs to be respected, and ‘the offensive interrogation and storage of intimate and highly personal information on sexual identity or other vulnerabilities’ would interfere with this right (BMI2019, p. 5).
In the absence of reliable figures, in 2011 (pre-‘refugee crisis’), Jansen and Spijkerboer have roughly estimated an annual overall number of 10,000 LGBTI (lesbian, gay, bisexual, trans and intersex) asylum claimants in the EU (Jansen and Spijkerboer 2011, pp. 15–16),Footnote 6 and according to the German LGBTIQ+ (lesbian, gay, bisexual, trans, intersex, queer and others) rights organisation Schwulenberatung, there are an estimated 3500 SOGI asylum claimants in Berlin alone (Thomson Reuters Foundation 2016). Nonetheless, no statistical correlations between countries, claimants’ SOGI, claim basis, and outcomes of the claims can be established at present. Within this grouping of claims, it appears that the number of female claims is smaller than those of male claims, possibly owing to the lower number of female claims in general (due to limited financial resources and independence enabling women to escape persecution), less social visibility of lesbians in many countries compared to gay men, and less severe legal punishments (although only on the statute books and not in reality) for lesbian same-sex conduct (Dawson and Gerber 2017, pp. 305 and 318; Neilson 2005, p. 419; Ramón Mendos 2019; Terry, member of the European Parliament).Footnote 7 The numbers of trans, bisexual and intersex claims is perceptibly smaller still, but again unquantifiable.
We set out to include in our research both SOGI asylum claimants, on the one hand, and SOGI-based asylum claims, on the other, as overlapping but conceptually different categories. SOGI asylum claimants may lodge asylum claims on non-SOGI-related grounds, either feeling reluctant to ‘out’ themselves during the asylum procedure and fearing that friends and family will find out about their SOGI (Held et al. 2018; Kalkmann 2010); because another ground is more relevant to their experience of persecution (for example, political or religious persecution); or because they may not know that claiming asylum on grounds of SOGI is a possibility (Chap. 5). Moreover, SOGI-based asylum claims may be lodged by heterosexual and cis-gender individuals, for example, when a certain minority sexual orientation is merely imputed to the claimant by the persecutors. Yet, the focus of this work is more squarely on SOGI as grounds for an international protection claim, as in our fieldwork we only met SOGI asylum claimants who were primarily claiming on the basis of SOGI.
We endeavour to place the experiences of individuals claiming asylum at the centre of this work. We do so by combining a comparative study (Germany, Italy, and the UK), an interdisciplinary approach (socio-legal), and an empirical methodology (semi-structured interviews, focus groups, judicialobservations and a survey). Our analysis is grounded in human rights, feminist, intersectional and queer theoretical and analytical frameworks. This combined empirical and theoretical treatment secures new insights, laying the ground for policy-relevant recommendations of benefit to the academic community and asylum practitioner community alike. We begin by contextualising our subject matter in the international and European legal and policy frameworks.
2 The International and European Legal, Policy and Social Context
The 1951 Convention Relating to the Status of Refugees (Refugee Convention),Footnote 8 along with the 1967 Protocol Relating to the Status of Refugees,Footnote 9 were developed in the aftermath of World War 2 and built on the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War,Footnote 10 to regulate the movements of refugees across Europe and beyond (Rabben 2016). Article 1(A)(2) of the Convention defines refugees as someone who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Although simply a part of a much more complex system of assistance to displaced persons and regulation of refugee movements (Ferreira et al. 2020), this definition and, more generally, these UN instruments stand as the cornerstone of this system. Complementing this system, each domestic jurisdiction has introduced constitutional norms and/or ordinary statutes that enshrine the right to international protection.
Later in time, the EU also developed its own system of norms and policies applicable to people seeking asylum: the work-in-progress Common European Asylum System (CEAS).Footnote 11 CEAS is a system designed to set minimum standards across the EU member states with regard to different aspects of asylum, especially the standards for the reception of claimants for international protection, the qualification of third-country nationals or stateless persons as beneficiaries of international protection, and the procedures for granting and withdrawing international protection (Gorlick 2003; Noll 2000). CEAS aims to fulfil two main aims: to be fair and to be effective (Ippolito and Velluti 2011). Yet, the success of the CEAS has been undermined by a lack of harmonisation and consistency in standards across EU member states, which has remained the case even after the introduction of the recast EU Directives 2011/95/EU on qualification for international protection (Qualification Directive),Footnote 12 2013/32/EU on asylum procedures (Procedures Directive),Footnote 13 and 2013/33/EU on reception conditions (Reception Directive) (De Baere 2013; Velluti 2014).Footnote 14 Furthermore, the EU has become an anxious and eager player in this field, especially in light of the increased number of people claiming asylum in Europe in 2014–2017, a number that has gone down to 634,700 applications in the EU, Norway and Switzerland in 2018, an approximate 10% decrease compared to 2017 (EASO2019). The starkly different number of claimants received by each EU member state and the considerable variation of refugee recognition rates across the EU remain two of the major challenges to the CEAS, awaiting a political solution that struggles to materialise in the current politically-charged migration and refugee debates in Europe.
Within an increasingly complex and politicised asylum policy context, domestic jurisdictions started granting international protection – including refugee status – to SOGI asylum claimants in the early 1980s, under the ‘particular social group’ (PSG) ground, with the Netherlands leading on this development in 1981.Footnote 15 This development gradually, but very slowly took place across other jurisdictions in Europe and around the world,Footnote 16 as a combined reaction to socio-cultural factors (growing movements across Western countries on ‘gay’ rights and the fight against AIDS), institutional and personnel changes in the asylum system, the gradual tendency to build on incremental progress in asylum authorities’ procedures and policies, theoretical breakthroughs (including pioneering feminist and queer theories), international and supranational legal and policy advancements (particularly at EU level), and the growing recognition of SOGI as the basis for rights claims (Ferreira 2015; Hamila 2019, pp. 160–161; Kobelinsky 2015; Various 2017). This, however, has been a contentious and arduous trajectory, reflecting tensions between an increasingly progressive LGBTIQ+ equality agenda, on the one hand, and a strategy aimed to prevent the arrival of migrants to Europe (including people in need of international protection), an ever more hostile environment for all migrants, and a large degree of deference by international bodies to member states regarding migration and asylum matters, on the other hand (Danisi 2018; Dembour 2015; Ferreira 2021). This siloed approach to the LGBTIQ+ equality agenda, on the one hand, and migration and asylum, on the other, is a common feature of current debates, reflected in institutional reports and policy papers (for example, FRA2019).
Against this background, international bodies have increasingly dotted their recommendations and reports with positive references to SOGI asylum claimants, with the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (Victor Madrigal-Borloz), in particular, highlighting the ‘unique vulnerability and specific needs of lesbian, gay, bisexual, trans, intersex and gender diverse (LGBTI) asylum-seekers and refugees’ (OHCHR 2019). Nonetheless, the protection of SOGI asylum claimants has failed to attract sufficient support from UN quasi-judicial bodies. In 2003, for example, the UN Committee Against Torture addressed the K.S.Y. case,Footnote 17 involving a gay Iranian man who sought asylum in the Netherlands and saw his claim denied. He then filed a complaint before the Committee Against Torture, on the grounds that his deportation to Iran would violate Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (on prohibition of return in case of danger of subjection to torture, also known as the principle of non-refoulement). K.S.Y reported having been tortured and sentenced to death in Iran due to his homosexuality. Both the torture suffered and post-traumatic stress disorder (PTSD) were confirmed by medical reports. In a surprisingly short and superficial consideration of the complaint’s merits, the Committee subscribed to the Dutch authorities’ arguments: there was no active policy of prosecution of homosexuals in Iran, and the claimant’s account lacked credibility. More recently, the UNHuman Rights Committee dealt with the M.Z.B.M v. Denmark case,Footnote 18 relating to a transgender Malaysian woman who claimed that her deportation from Denmark would violate her rights under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (on prohibition of inhuman and degrading treatment), in conjunction with Articles 17(1) (on privacy and family life), 18(1) (on freedom of thought, conscience and religion) and 26 (on non-discrimination). Although admitting the claim regarding gender identity, the Committee accepted the domestic authorities’ assessment of lack of credibility and found there would be no violation of ICCPR rights upon her removal to Malaysia.
Despite this somewhat bleak picture at UN level, the UN High Commissioner for Refugees (UNHCR) has been proactive in protecting the rights of SOGI asylum claimants and refugees for more than a decade. While it had already expressed an interest in SOGI-related persecution in the late 1990s (Bissland and Lawand 1997), it was in 2008 that the UNHCR issued a ‘Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity’ (UNHCR2008), subsequently replaced by the 2012 SOGI Guidelines (UNHCR2012). Building on the UNHCR 2002 ‘Guidelines on International Protection No. 1: Gender-Related Persecution’ (UNHCR2002), the SOGI Guidelines offer valuable assistance to decision-makers and support organisations in the field, encouraging them to become more sensitised to the needs and specificities of SOGI asylum claims. Although by 2008 many countries across the world already granted refugee status to SOGI asylum claimants within the scope of membership of a PSG ground (Chap. 7), the UNHCR Guidance gave these claims a new and welcome prominence, raising hopes of greater fairness and appropriateness in the adjudication of these claims. Subsequent work – including staff operational guidance, risk identification tools, and resettlement assessment tools – has reinforced the UNHCR’s commitment to improving the conditions of SOGI asylum claimants (Türk 2013; UNHCR2015).
While the UNHCR’s efforts in this field are commendable, there are still strong signs that the SOGI dimensions of asylum claims are treated in a particularly insensitive way in many countries, often inappropriately at legal, cultural and social levels. This has been explored by some scholarship and other literature over the years and has focused, for example, on asylum claimants’ proof of belonging to a PSG, their identity, past and future risk of persecution, and credibility (Balboni 2012; Dustin 2018; Güler et al. 2019; ICIBI2014; Jansen 2019; Jansen and Spijkerboer 2011; Millbank 2009a, b). Evidence of stereotyped adjudication processes presents a challenge to the claimed impartiality and objectivity of the legal system. Our survey with people who work with or support SOGI claimants confirmed that there are still significant problems in the asylum legal process, namely in relation to credibility assessment (81%), stereotyping (60%), Country of Origin Information (COI) (48%), ‘discretion’ reasoning (40%), the claimants’ unawareness that SOGI can be the basis for claiming asylum (39%), and the ‘internal relocation alternative’ argument (34%). The jurisprudence at European level – both from the Court of Justice of the EU (CJEU) and European Court of Human Rights (ECtHR) – has either not addressed these issues appropriately, or only addressed them in a partially satisfactory way (Ferreira 2018, 2021).
The reported unfairness of the legal system is compounded by these asylum claimants being ‘doubly’ isolated, that is, not only as asylum claimants, but also as members of SOGI minorities. Often they cannot rely for support on their families or expatriate communities of other individuals who share their ethnicity and/or nationality to live freely and safely (Çalik and Hayriye 2016). Furthermore, SOGI claimants are frequently affected by serious psychological trauma and mental health conditions – including recurrent depression, dissociative disorders, panic disorder, generalised anxiety disorder, social anxiety, traumatic brain injury, substance abuse and PTSD – on account of the persecution they suffered in their home countries and their journeys to host countries (Hopkinson et al. 2017; Kahn et al. 2017; Shidlo and Ahola 2013). Yet, the asylum adjudication process often makes unreasonable expectations of asylum claimants; expectations that they will feel able to be entirely open, and give full, consistent and lucid accounts of their SOGI and experiences of persecution.
SOGI claimants’ experiences are also highly variable amongst themselves. While considering SOGI claimants’ experiences collectively may have value for the purposes of activism and service provision (for example, when advocating for targeted accommodation or community groups), it is important to disaggregate the identities of SOGI claimants in many contexts in order to offer more adequate and tailored services (Chap. 11). This can be clearly seen, for example, in relation to individuals claiming asylum on grounds of their gender identity – or who may present their claims on other grounds but identify as trans. There are reports of inadequate staff training, erroneous recording of these claims as pertaining to sexual orientation, and inappropriate assessments of lack of credibility (TGEU 2016, p. 6). In terms of social integration, trans asylum claimants face difficulties in finding specific social support and community groups, which leads to particular forms of isolation (TGEU 2016, p. 7). Many further issues may go unreported, leaving us with only a partial picture of these individuals’ experiences.
Despite substantial scholarly and activist efforts in some countries to address the SOGI dimensions of asylum matters, NGOs’ efforts and scholarly criticism concerning SOGI claims are still scarce in many European jurisdictions. This prevents the improvement of procedural and substantive decision-making and social integration in cases involving SOGI asylum claims. There is still need for a more comprehensive, theoretically and empirically-grounded analysis of the legal and social experiences of SOGI asylum claimants across several European jurisdictions. This is what these volumes aim to do.
3 Framing Our Research
Although there are instances of SOGI asylum claimants being resettled to European countries (Taylor 2019), their limited number and the nature of our fieldwork have led us to focus almost exclusively on claimants who undergo the refugee status determination (RSD) process in European countries. In other words, our analysis is limited to instances of territorial asylum, where claimants have reached the territory of the country where international protection is sought, as opposed to other forms of asylum such as diplomatic asylum. Our analysis is also limited to the individual assessment of international protection needs, rather than group assessment, as may happen in relation to group arrivals or groups of claimants from certain countries of origin (for example, Syria).
Focus will remain on developments that have taken place since the creation of the EU CEAS, in other words, post-1999 (Ferreira 2018), which has framed most key features of the asylum systems in EU countries. We focus mostly on the SOGI-specific dimensions of the asylum experiences of SOGI claimants, and how these intersect with other dimensions (such as ‘race’, class, religion, etc.), rather than analysing their entire experiences.
Three levels of analysis are employed throughout these volumes: i) macro-level, through the examination of the incorporation by current legal frameworks of the emergent SOGI dimensions of human rights, the different scopes and approaches of asylum policies in European countries with regard to SOGI, and the fairness of the asylum adjudication process in SOGI-related claims; ii) meso-level, through the examination of the way in which the asylum adjudication system interrelates with these claimants’ self-perceptions and integration both in the host communities and in the established diaspora of fellow nationals; iii) micro-level, through the examination of how, in the course of the asylum adjudication process and beyond, asylum claimants’ identities evolve and adapt.
These volumes rely on a combined comparative, socio-legal and empirical methodology, as further explored in Chap. 2. As case studies for our comparative approach, we have adopted Germany, Italy and the UK. The rationale behind this choice is explained in Chap. 2. While acknowledging a range of other interests and perspectives (including states’ sovereignty over borders, security and societal fears), we unapologetically adopt a normative approach that draws above all from the theoretical and analytical underpinnings expounded in Chap. 3, thus favouring human rights, feminist, queer and intersectional perspectives.
Terminology in the field of asylum/refugee policy and gender/sexuality has become a veritable minefield, both in academia and activism. This makes it important to dedicate space to explaining our terminological choices and offer some caveats before proceeding. While writing these volumes, the first choice before us was to decide how to refer to asylum and refugee matters. The term ‘asylum seeker’ has become negatively loaded in political and public debates and is rightly seen as dehumanising by many people, so there have been calls to replace it with ‘people seeking asylum’ (African Rainbow Family2017). Endorsing this position, we thus either refer to people seeking asylum or asylum claimants throughout these volumes. We also explicitly refute the expression ‘failed asylum seeker’, because:
[t]he use of the term “failed” evokes fault of the individual that he or she has not succeeded in obtaining international protection just as students who fail their exams did not study sufficiently or were inadequate. The individual is responsible for his or her fate, the authorities warned him or her of the risk of a poor application but he or she persisted in pursuing, inadequately, the claim. (Guild 2012, p. 20)
We favour instead the expression ‘unsuccessful claim’ or ‘rejected claim’, thus putting the emphasis on the lack of success of the claim, not the person. More generally, we will refer to ‘refugees’ in a non-technical way, thus including all beneficiaries of international protection, unless we specify the legal status granted.
Other fundamental terminological choices refer to whether to adopt characteristics (sexual orientation, gender identity, etc.) or identities (gay, lesbian, trans, etc.) as the key focus of our analysis (to use the common, if potentially reductive choice of terminologies available in this field of research). As one can deduce from this introduction, we have opted for the former. We chose a characteristic, as opposed to an identity-focused analysis, because a focus on certain identities and the use of terms such as ‘LGBT’ creates a greater risk of replicating Westernised concepts of personhood for individuals claiming asylum (something further explored throughout these volumes). Focusing on certain characteristics and using terms such as ‘SOGI’ reflects, or aims to consolidate, a more universal and cross-cultural basis for discussion, more sensitive to an intersectional approach to SOGI asylum (Dayle et al. 2010; Dustin and Ferreira 2017). As one of our participants said, ‘I chose to say that I am gay, it’s easy to understand and accept here [Europe]. Even if I keep thinking that being LGBTQ as definition is reductive’ (C61, Italy). Moreover, as we explore further in Chap. 3, while:
queers may reject the [LGBT+] acronym altogether, often because of its identitarian, culturally specific, or geo-politically loaded reference points (…) SOGI is used by the UN and is often used outside the West because of its capacity to be distant from the Western cultural and identitarian forms usually associated with the categories in the LGBT+ acronym. (Langlois 2018, p. 155)
Where appropriate to refer to an identity-based acronym, we have either opted for the acronym used by the author being discussed, or for LGBTIQ+, conscious of the scope to expand this acronym with a practically infinite number of other specific identities (for example, asexual, pansexual, unsure, polyamorous, etc.). While conscious that the UN opts for the acronym LGBTI (United NationsHuman Rights Office 2019), we have found it important to add Q for queer, as ‘identity categories are burdened by legacies that must be interrogated, do not map neatly across time and space, and become transformed through circulation within specific, unequally situated local, regional, national and transnational circuits’ (Luibhéid 2008, p. 170).
Four further clarifications are relevant in this context. First, sexual orientation and gender identity constitute separate characteristics, but persecution related to these two notions raises common issues in terms of individuals’ non-compliance with held social and cultural conceptions of gender roles (Kendall 2003; Miller 2000; Stichelbaut 2009, p. 70; UNHCR2002). In essence, both sexual orientation and gender identity asylum claims are a consequence of ‘failing to conform to gender-prescribed social norms and mores or for claiming their rights’ (CEDAW 2014, par. 15). So, both these characteristics need to be considered if we are to tackle the insufficiencies of the asylum system, even if recognising along the way their autonomy, hence predominantly adopting the acronym SOGI throughout these volumes. Further characteristics such as sexual characteristics (or intersex variations) and gender expression, while distinct from SOGI, are also deeply connected to oppression on account of gender roles and are thus relevant to our subject-matter. This would have made the acronym SOGIESC (sexual orientation, gender identity and expression, and sexual characteristics) appropriate as well. While not adopting SOGIESC as our core acronym, we consider sexual characteristics and gender expression where relevant. However, we remain focused on SOGI, as that is where our empirical data has, for the most part, led us.
Second, where it is more appropriate to refer to certain SOGI-related identities in the light of the issues or data in question, we favour, wherever possible and known, the identities ascribed by those concerned to themselves. When not specified by the individuals in question, we have avoided ascribing an identity. And when wishing to refer to non-heterosexual and non-cisgender people generally, we also use the terms ‘sexual minorities’ and ‘gender minorities’.
Third, ‘sexual identity’ is a term that is sometimes used to encompass a range of SOGI-related characteristics, and employed to replace ‘SOGI’ or ‘SOGIESC’. As ‘sexual identity’ is not yet a term that is widely used and acknowledged, or consensually understood, we have opted not to use this term as our main terminology, despite its potential and merits, unless when referring to other sources that use that expression. Similarly, we do not use the words ‘homosexual’ and ‘homosexuality’, owing to their negative connotations, being increasingly disfavoured and replaced with the words ‘gay’ and ‘lesbian’ in English-speaking contexts. Yet, they are still frequently used in judicial decisions, policy documents and in other languages, and so we use the terms in the context of such sources without endorsing them.
Finally, we acknowledge that not everyone we wish to refer to, in the context of our fieldwork and beyond, may identify as a member of a ‘sexual minority’ or a ‘gender minority’, or see the matters discussed as a matter of ‘sexual orientation’ or ‘gender identity’. We try to respect our participants’ preferences as far as possible, while retaining the consistency needed for the purposes of these volumes.
4 The Structure of These Volumes
These volumes are constituted by 11 chapters, with Vol. 1 gathering Chaps. 1–6 and Vol. 2 gathering Chaps. 7–11. Chapters are divided into three Parts, with Part I in Vol. 1, Part II straddling the two volumes, and Part III in Vol. 2. Part I is aimed at contextualising our research on SOGI asylum and is constituted by four chapters. Following this introductory chapter, Chap. 2 offers an overview of the methodology used in the research underlying these volumes, including a discussion of the range of empirical methods employed. The chapter will also explore insights gained through our research in relation to conducting empirical research with refugees. Chapter 3 sets out the theoretical underpinnings of our research, derived from human rights, feminist theory, queer studies and intersectionality. This chapter identifies and explores a number of debates within these three vast and diverse bodies of literature, debates chosen for the novel contribution they can make to our understanding of SOGI asylum. After a critical analysis of these contributions, we use them to identify key underpinning principles or themes that will guide and inform the subsequent data analysis in the chapters that follow to provide a coherence to our approach, while avoiding a restrictive or orthodox approach to SOGI asylum. Chapter 4 concludes Part I by exploring the legal and policy framework that applies to SOGI asylum in the case study jurisdictions, including an exploration of key actors and instruments, the degree of domestic asylum systems’ compliance with supranational and international obligations, specific SOGI asylum policy and guidance, and the range of outcomes an asylum claimant may expect, amongst other issues.
Part II offers an analysis of the legal and social experiences of SOGI asylum claimants and refugees across the three case study jurisdictions and further across Europe. Chapter 5 considers the lives of individuals before fleeing persecution, the journey and arrival in Europe, including a range of social and legal aspects. These include the availability in the three countries under comparison of information on SOGI asylum upon arrival, as well as what assessment is carried out, especially in relation to SOGI claimants’ initial accommodation. Chapter 6 – the last one in Vol. 1 – proceeds to exploring SOGI asylum in the context of decision-making procedures, including: the interview setting; the training and conduct of caseworkers, judges, interpreters and other people working with SOGI claimants; how COI is produced and used in relation to SOGI asylum claimants; the impact of individuals’ personal background and prejudices; and access to and quality of legal representation at initial decision-making stage and appeal stage.
Volume 2 starts with Chap. 7, which considers how the substance of SOGI asylum claims is dealt with. In particular, its analysis focuses on how decision-makers assess whether a SOGI asylum claimant is a member of a PSG (including whether the claimant’s SOGI self-identification is influential), how the notion of ‘persecution’ is assessed (including the role of criminalisation of same-sex acts in the claim assessment), and to what extent the notion of ‘internal relocation’ is a relevant consideration. This chapter will also explore the evidentiary standards and how they are applied to SOGI claimants, exploring how decision-makers assess the ‘credibility’ of SOGI asylum claimants and whether a ‘culture of disbelief’ still persists amongst asylum authorities.
Chapter 8 shifts the focus to the lived experiences of SOGI asylum claimants in relation to housing and accommodation. This includes an analysis of SOGI asylum claimants’ perceptions of reception and accommodation centres, experiences of detention, longer-term accommodation, homelessness and destitution, and post-refugee status housing arrangements. To conclude Part II, Chap. 9 focuses on a range of other aspects in the lives of SOGI asylum claimants and refugees that have a significant impact on their feelings, well-being and quality of life, but are often inappropriately regulated, namely access to healthcare services, the labour market and educational provision. The chapter explores access to mental health services, experiences of torture and sexual violence, the impact of being denied the right to work, experiences of volunteering, and issues related to language tuition and access to higher education, as well as emotional health more generally.
Part III presents our vision for a better future for SOGI asylum in Europe, one where all actors place greater trust in the asylum system and are confident of its fairness, as defined by the analysis carried out in these volumes. Chapter 10 brings together experiences of harassment, isolation and oppression that participants shared with us. The analysis revolves around four key themes – identities, discrimination, space and agency – all of which affect both the legal and social experiences of SOGI claimants. Finally, Chap. 11 offers a range of policy recommendations addressed to decision-makers, policy-makers, NGOs and service providers, for improving the socio-legal framework that applies to SOGI asylum. These focus mainly on domestic level contexts, but also refer to the European level to offer a more encompassing analysis. This chapter also functions as the conclusion to these volumes, and offers some final observations on the theme of SOGI asylum in Europe.
‘Asylum’ will be used throughout these volumes as encompassing both those claims for refugee status on the basis of the 1951 Refugee Convention and those claims for subsidiary protection and humanitarian protection, where available.
Seventy-third Session, 60th and 61st Meetings, GA/12113, 19 December 2018.
For a clarification on the meaning of the terminology used in these volumes, see glossary here: http://www.sogica.org/en/the-project/glossary/
We use the term ‘minorities’ for ease of communication, but are conscious that such groups are in reality ‘minoritised’, in the sense that they are constituted by active processes of ‘othering’ that designate certain attributes of groups in particular contexts as being in a ‘minority’ (Gunaratnam 2003, p. 17).
We will use the term (social or community) ‘integration’ throughout these volumes for ease of communication, while acknowledging that it is a problematic notion, critiqued by scholars from various angles (Ager and Strang 2008; Castles et al. 2001). As this is not a central notion to our analysis, we will not expand on our use of it or the relevant critique. For our purposes, we will use this term loosely, as encompassing a range of aspects of the lives of asylum claimants and refugees (such as education, health and employment), without suggesting any degree of assimilation or loss of cultural identity.
This figure thus relates to the identity of the asylum claimant, as opposed to the grounds for the asylum claim, even if in practice there may be no substantial difference in the estimate achieved.
In the UK, for example, in 2016, of 30,747 asylum applicants, 23,066 were men (Home Office 2018b).
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Danisi, C., Dustin, M., Ferreira, N., Held, N. (2021). Why Sexual Orientation and Gender Identity Asylum?. In: Queering Asylum in Europe. IMISCOE Research Series. Springer, Cham. https://doi.org/10.1007/978-3-030-69441-8_1
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