1 So What?

The previous chapters have offered an in-depth, empirically and theoretically informed analysis of a broad range of issues affecting SOGI asylum claimants and refugees in Europe, with a focus on Germany, Italy and the UK. This analysis has applied new insights to findings unearthed by previous research and shone light on issues that have so far been relatively neglected. But the question often posed to us as academics is ‘so what?’ To address this question, this chapter offers a range of recommendations addressed to decision-makers, policy-makers, governments, NGOs and service providers, aimed at improving the socio-legal framework that applies to SOGI asylum. These apply mainly at a domestic level, but also refer to the European level, where relevant, to offer proposals that recognise the intersections of national, European and international frameworks. As in the previous analysis, we are strongly guided by our participants’ voices, complemented by broader scholarly debates and our analysis and views of these. Our data and analysis thereof also shed light on broader issues in the asylum system, and many of the recommendations set out here would benefit non-SOGI asylum claimants and refugees as well. We hope they will be of wider value in this way.

The context for this chapter is the clear sense that ‘[t]he world no longer speaks of refugees as it did in my time [1980s]. The talk has grown hostile, even unhinged, and I have a hard time spotting, amid the angry hordes, the kind souls we knew’ (Nayeri 2019, p. 12). And although ‘[i]t is changing and I would say that we have achieved an incredible amount, and yet… It’s not all that good by far, so… basic things, things just do not necessarily get better’ (Sabrina, NGO worker, Germany). There is much work still to be done to render the SOGI asylum system ‘fit for purpose’, both in terms of rendering the legal adjudication process more appropriate (Daniele, decision-maker, Italy) and to create a more supportive process of social integration (Titti, decision-maker, Italy).

The issues that need to be addressed are different in each domestic and even regional context, and any recommendations need to be tailored to a particular situation. Our recommendations address two broad problems. On the one hand, there are systematic and structural issues that require legal and policy reforms, including changes to asylum reception conditions and procedures. On the other hand, there is a widespread concern that these systems are arbitrary, and that decision-making in all countries is worryingly inconsistent: ‘it is often remarked it is luck of the draw and that seems to be the, the biggest problem. It is so difficult to surmount because we are dealing with human beings’ (Bilal, presenting officer, UK). Recommendations need to address both systemic issues and the ‘lottery’ functioning of the current SOGI asylum system.

Any set of recommendations also needs to reckon with the tensions that exist within any asylum system, for example, the difficulty in protecting the human rights of persecuted individuals within a hostile context where asylum is politicised for propaganda purposes and the state imperative of border control. Further tensions exist between promoting the welfare of claimants without invoking disempowering discourses of victimhood and vulnerability. Moreover, we should endeavour to undermine homonationalist discourses (Puar 2013). In this chapter, building on the approach set out in Chaps. 2 (Sect. 2.3) and 3, we make recommendations that attempt to reconcile such tensions so far as possible.

Our recommendations in this final chapter are divided into sections that approximately mirror the analysis in Chaps. 4, 5, 6, 7, 8, and 9. In Sect. 11.2, we discuss how to improve people’s journeys to Europe and their reception in countries of arrival. In Sect. 11.3, we focus on how to enhance the RSD process, both in terms of procedures and substantive analysis. In Sect. 11.4, the focus shifts to the improvement of accommodation, housing and detention, and Sect. 11.5 is dedicated to recommendations concerning three main areas of life beyond the RSD process, namely in the fields of health, work and education. In Sect. 11.6, we put forward recommendations to ensure that the legal and social dimensions of SOGI asylum claimants and refugees’ experiences are less disjointed and better aligned. Finally, in Sect. 11.7 we set out what we see as the underpinning values needed to guide a fair SOGI asylum system.

2 The Journey to Europe and Reception

As explored in Chap. 5, members of SOGI minorities seeking asylum in Europe often undergo horrifying experiences in their countries of origin forcing them to undergo long and risky journeys in the attempt to escape. European countries have a responsibility to reduce the risk of persecution in countries of origin through their external relations policies, including through EU structures and mechanisms:

the European Union, in the past 10 years I think, has improved on working on LGBTI issues in third countries, but I think there is still a long way to go. So when we look at the situation of LGBTI people in many countries all over the world… it is still so deplorable, and I think that if we want to be credible… we really need to put a focus on this and say “no, these are really the minorities also that show you if there is an acceptance of human rights, if there is real democracy, if people are given the freedom to decide about their own lives.” I would say that next to having an asylum system in place that meets the needs both of SOGI claimants as well as others… we also need to look at what can we actually do in the home countries to improve the situation (…) So, also really to do something about that, and to highlight that and to make this a priority of external, of the external action service. (Terry, member of the European Parliament)

The same point was made by refugee participants:

So, if possible, European government can share this idea [of respect for SOGI minorities’ rights] with African leaders to make their law, they can amend the law, they are the one who make the law, they can amend it, it is possible for them. So to amend the law, so that it is at least the country can be a little bit favourable to people, if not just favour them in a big way, just little bit. (Fido, focus group no. 4, northern Italy)

In line with the need to protect human rights and freedom while avoiding cultural essentialism (Chap. 3), such pressure through the EU’s and domestic external relations policies needs to promote greater awareness of and respect for SOGI minorities’ rights and needs, without exacerbating perceptions that human rights are a Western imposition serving economic interests and with little genuine wish to address the global inequalities that create (SOGI) asylum claims in the first place (Danisi 2017).

While the risk of persecution for members of SOGI minorities is the driver for flight from many countries, we also need to address the perilous journeys that these individuals undertake and the degrading conditions in which they are received on arrival in Europe:

one must realise that a humanitarian catastrophe is already happening in Libya, but partly also from what happens to people in Greece, Hungary and Italy… This is really a humanitarian disaster that happens there. So that you do not then push more people into this, into this hell. (Sabrina, NGO worker, Germany)

To avoid these journeys, it is essential that humanitarian tools are introduced as a matter of urgency to allow asylum claimants – SOGI or otherwise – to reach Europe safely, in parallel to already more established mechanisms such as resettlement. This can be done through humanitarian admission programmes and, in particular, humanitarian visas that provide documentation to people in flight – a mechanism with a strong historical basis as well (Politzer and Hylton 2019). They could be operated through ‘humanitarian corridors’, similar to those facilitated by the Community of Sant’Egidio (Community of Sant’Egidio 2019). Some countries, like Germany,Footnote 1 already possess a legal basis for such initiatives, and these need to be used more systematically. Such humanitarian initiatives are, however, not yet regulated at a EU level and domestic authorities generally do not make such provision (Moreno-Lax 2019). This has prompted the European Parliament to support the creation of a Protected Entry Procedure (European Parliament2018a, b), but binding measures are yet to be introduced.

In terms of reception, and in light of the context of general hostility to migrants in Europe, juxtaposed with persistent and in some cases increasing homophobia and transphobia and lack of information on SOGI asylum upon arrival (Chap. 5), it is essential to promote a more friendly and welcoming environment for SOGI asylum claimants and refugees. For these purposes, awareness efforts addressing potential and actual claimants and the wider public need to be intensified, through national and local dissemination of materials about the asylum system, and the rights of claimants. This should include information about SOGI asylum provided in different languages, graphic and easy-read formats, made available in places accessed by SOGI claimants – or by individuals entitled to claim asylum on a SOGI basis but who may not be aware of this fact. This might include airports and other transport hubs, medical facilities, schools and colleges, LGBTIQ+, refugee and migrant NGOs, and public spaces such as libraries (Fares, Germany; Knud, NGO worker, Germany; Juliane, public official, Germany).

Upon arrival and at the point of lodging an asylum claim, it is essential to offer claimants the opportunity – and indeed encourage them – to disclose any potential reason for needing protection, including their SOGI. One suggestion is to include a box about SOGI in a form alongside other optional questions (Kadir, NGO worker, Germany). Support in completing forms from trained staff and interpreters would be useful. However, there would need to be guidance for officials, to ensure there were no negative consequences for claimants who disclosed their SOGI only at a later stage in the asylum process, as many claimants will not feel sufficiently confident to mention their SOGI at this time. As we see in Italy (Chap. 6), such questions can be asked at the screening stage, without main interviewers or decision-makers penalising claimants who chose not to answer. Obtaining information on a voluntary basis in this way could facilitate the provision of more appropriate information and services throughout the remainder of the asylum process. More generally, forms should be designed to give as much flexibility to claimants to complete them based on their particular circumstances in terms of SOGI, as well as in all other aspects of their lives (ORAM 2016b). The identification of SOGI asylum claimants should lead to the automatic signposting of claimants to relevant groups,Footnote 2 in order to ensure they receive more tailored and effective legal advice and social support (focus group no. 1, Hesse, Germany). This approach is reflective of a fairer sharing of responsibility amongst all asylum system actors, with asylum officers taking a more pro-active approach to identifying SOGI claimants than is currently the case.

Whether SOGI asylum claimants should generally fall within a legal category of ‘vulnerable’ or not remains a contentious issue (Chap. 3). While this is not the case under the current EU legal framework, some local and regional practices and policies identify SOGI claimants as ‘vulnerable’ (Chap. 4). Some of the participants we interviewed were adamant that SOGI asylum claimants should be considered ‘vulnerable’ for purposes of the asylum process (Ibrahim, Germany; Matthias, social worker, Germany). Others were opposed to it because of the stigmatising effects of this kind of labelling and the risk of creating a hierarchy among asylum claimants, encouraging competition as to who is considered the ‘most vulnerable’ to obtain some ‘advantage’ in terms of support or provision (Noah, NGO social worker, Germany). Finally, the ‘vulnerable’ label can be seen as an easy remedy, but one that conflates vastly different kinds of disadvantage, discrimination and exclusion (Peroni and Timmer 2013, p. 1071). If the designation ‘vulnerable’ is retained in relation to asylum claimants, it should only be with the recognition that vulnerability is not an inherent characteristic but derives from circumstances and experiences and is – it is to be hoped – a temporary state (Peroni and Timmer 2013, pp. 1059–1061; Chap. 3).

The move to the notion of ‘specific needs’ in the current CEAS reform largely addresses the shortcomings of the notion of ‘vulnerability’ (Chap. 4), as it shifts the debate from ‘labelling’ someone as vulnerable (or more vulnerable than other claimants) to addressing the specific needs of each individual, in this way avoiding stigmatising whole categories of asylum claimants as somehow lacking in capacity or resourcefulness. Rather than creating hierarchies built upon generalisations, actors in the asylum system should strive to make individual assessments that address the needs of each claimant in a sensitive manner (Noah, NGO social worker, Germany), as already required by human rights law (Chap. 3).

To this extent, we favour including SOGI claimants amongst those likely to have specific needs, which may trigger adaptions to make the asylum system more responsive to SOGI needs. This would ensure SOGI claimants receive information and services tailored to their circumstances, such as details about the legal framework relating to SOGI in the host country, the availability of SOGI specific accommodation, confidentiality obligations, freedom to ‘come out’, etc. (Gisela, lawyer, Germany). This also has an impact on the RSD process, to which we now turn.

3 The Asylum Application Process

RSD processes have the pernicious ability ‘to flatten out difference, demand simplicity over nuance, and compel the distillation of messy, complicated lives down to a manageable set of narrative fragments’ (Macklin 2011, p. 137). SOGI asylum claims are generally anything but simple, and the legal process needs to recognise and deal with that in a respectful and targeted manner, compatible with the human rights, feminist and queer analytical underpinnings outlined in Chap. 3.

3.1 Institutional and Policy Framework

Asylum adjudication agencies should be immune from the ‘politics of the day’ in delivering human rights compliant decisions, and one way to achieve this may be moving towards independent or semi-independent UNHCR-like models. The inclusion of UNHCR representatives as members of the Italian territorial commissions increases the quality of decision-making, at least to the extent of ensuring that decisions adhere to relevant UNHCR guidelines. We thus espouse ECRE’s recommendation that:

caseworkers should work in an institutional environment that is adequately human rights and protection-oriented, regardless of any EU or national interest. The main objective for determining authorities should always be protection, namely to identify applicants who qualify for international protection. ECRE thus warns against the placement of determining authorities within Ministries which follow certain objectives at the expense of the asylum seekers’ right to a fair and transparent asylum procedure. (AIDA and ECRE 2019, p. 57)

Although our decision-maker participants said that the rules of individual assessment were followed (Olivia, UK), there was a strong suspicion amongst many of our participants – both claimants and supporters – that public authorities operate some kind of quota system (Chap. 4). We also saw in our fieldwork that claims regarding some countries of origin are more rigorously inspected, viewed with scepticism and have a higher rate of refusal. Despite the lack of objective evidence that quotas exist, the perception on the part of some claimants that they do reflects the broadly hostile climate that exists towards migrants and refugees in Europe, and the not unreasonable belief that this leads to attempts by decision-makers to minimise the number of successful claims. Any sort of quotas or targets should be eliminated, as they are in contravention with international refugee law and our human rights analytical underpinnings (Chap. 3).

As we saw in Chap. 4, not all domestic asylum systems provide SOGI guidelines, which leaves decision-makers unsupported and claimants at the mercy of unreliable and inconsistent standards of decision-making. Even when SOGI guidelines exist, their application is often inadequate:

The Home Office’s own published policy is extremely well informed, I mean, it is a very good [policy], people would be quite amazed, and if anyone who is transgender had a claim, and the Home Office applied its own policy, they would very, very likely succeed. (Adrian, judge, UK)

All asylum adjudication authorities should introduce SOGI guidelines (where there are none) and ensure they are applied consistently (when there are guidelines but they are applied inconsistently, as in the UK), to ensure consistency within each jurisdiction (Giuseppe, lawyer, Italy).

Any transparent and accountable asylum system needs to keep and publish rigorous and up-to-date statistics on different types of asylum claims and their outcomes, including SOGI-based claims. Statistics should not only include the number of SOGI claims submitted, but also what grounds are used to refuse or accept them (Kadir, NGO worker, Germany). This would also provide an evidence basis for measuring the successes and shortcomings of SOGI asylum decision-making. Reasons put forward to avoid the production of such statistics – for example, costs, confidentiality, data privacy, etc. – remain unconvincing and can be easily addressed.

As much as policy and guidance, the successes and shortcomings of any determination process depend on who the decision-makers are. Our fieldwork and analysis prompt a number of recommendations in relation to decision-makers. In terms of the selection process, the qualifications required for UK Home Office officials were a concern:

some of my colleagues are… have a legal background, so they have done a law degree and they have either done the bar or they have done the LPC [legal practice course] and they seem to have, again just observationally, they seem to have an advantage over new entrants that don’t have any such background. (…) I thought it was better when we asked for a legal background, because it makes much more sense, obviously, and it [UK] is such a case law heavy jurisdiction, so, very peculiar choice [not to require a law degree], I think. (Bilal, presenting officer)

A legal qualification should not necessarily be a requirement to become a decision-maker, as good decision-makers may have different academic and professional qualifications (Vincenzo, LGBTIQ+ group volunteer, Italy; Filippo, senior judge, Italy). Yet, appropriate qualifications are necessary to ensure a high standard of decision-making. Participants were practically unanimous that, once selected, decision-makers at both the administrative and judicial level should receive a minimum level of training in SOGI asylum – including not only asylum law and policy, but also more general matters such as equality and unconscious bias – and undergo a period of shadowing before making decisions autonomously on asylum claims (Sect. 11.6). As analysed in Chap. 6, the duration of training at administrative level was also of concern. For example, the 5-week general training received by the caseworkers at the UK Home Office, including one single day on SOGI matters, was believed to be insufficient by decision-makers themselves, even if complemented by ‘shadowing’ more experienced decision-makers and mentoring (David, official). A positive development in this respect is the new systematic training programme started in 2018 in Italy, in cooperation with the UNHCR.

The task of adjudicating asylum claims is an arduous and complex one, and, as a result, asylum agencies should ensure they have sufficient senior caseworkers to provide effective mentoring and oversight of new and junior caseworkers. Something similar to the ‘bulletin of jurisprudence for the Cour Nationale du Droit d’Asile’Footnote 3 (Amanda, NGO worker, Brussels) could help decision-makers at both administrative and appeal levels to remain up-to-date with latest developments in specific asylum areas, including SOGI asylum. Governments should provide flexible working conditions, career breaks, and appropriate forms of staff support to help caseworkers avoid burn-out, recover from vicarious trauma and prevent desensitisation. As Helena, an EASO staff member, shared with us, counselling or support for decision-makers is not common, not even in the wealthiest administrations. We heard that those working in the asylum system for more than 2 years are highly likely to experience vicarious trauma or burn out. As Helena pointed out, it is almost impossible not to be affected by listening to stories of war, rape and torture, and the easiest response is to stop believing those stories. Deirdre, a lawyer in the UK, shared similar concerns about Home Office staff:

I think they can become desensitised. I mean, that is what can happen. That’s the risk, that you become so exposed to it, so exposed to it that you do to protect yourself and how you are feeling, you almost try and close the door and it is just words, it is just words.

It should go without saying that career progression in decision-making bodies should in no way be related to the number of rejections or grants of international protection that officers produce, as some of our participants suspect happens in some countries, even if unofficially (Thomas, NGO volunteer, Germany).

We heard different opinions about who is best placed to make SOGI asylum decisions, recognising the inevitable limitation of any individual decision-maker in light of the intersecting characteristics of each claimant:

you can provide training but I think there is a limit to the amount that you can provide, because you cannot also expect each officer to be fully versed in LGBTI issues but in also issues to do with minors and to do with different races and religions and so on. (Jules, staff member at ILGA-Europe)

A corollary of this may be that caseworkers should specialise in one area, for example SOGI asylum, and all such claims should be allocated to those caseworkers; such specialised caseworkers might then form units specialising in and pooling expertise on SOGI claims (Frank S., legal advisor, Germany; Diana, Germany; Milad, Germany). This is already the case in some countries: for example, Sweden and Switzerland have SOGI specialist caseworkers, Belgium and France have specialised Gender and SOGI Units, and Germany covers SOGI under the umbrella of gender-specific units (AIDA and ECRE 2019, p. 11; European Migration Network 2016). This could also apply to the judiciary, with a survey respondent suggesting that ‘LGBTQI people should be judged by judges who are experts in lgbtqi issues’ (S152, NGO volunteer, Italy), however our focus is on better training for all judges.

Different types of cases may indeed require different skill-sets and even mind-sets: ‘every now and again you might get an LGBT claim thrown in, in my diary, my scheduling, so if I haven’t done any LGBT for a couple of months, then all of a sudden “right, Monday morning, I have got an LGBT interview”, it is really difficult because you are trying to get back into that frame of mind’ (Qasim, decision-maker, UK). Nonetheless, specialisation is not a guarantee of quality, and has risks relating to saturation and the development of cynicism regarding certain narratives and types of issues (Evelyne and Anne, lawyers, Germany). Consequently, while there may be arguments in favour of specialisation – in relation to SOGI asylum – the priority should instead be on improving training, shadowing, mentoring and staff welfare measures. Specialised units could be framed broadly, for example encompassing gender-based violence and SOGI (as is the case in Germany), to ensure decision-makers have the necessary skills to deal with more complex but often interrelated and overlapping claims. However, as important as expertise on the part of decision-makers is the willingness to reach out and network with other ‘experts’:

but in a large part also facilitating really good connections between them and organisations that are specialised in LGBTI issues (…) So, recognise that no single organisation and no single person can be an expert in everything, but that if you can network the organisations with their respective expertise, that they can then support each other in that way. (Jules, staff member at ILGA-Europe)

SOGI awareness and competences should, in any case, be mainstreamed across all public (as well as NGO and support) services, as any asylum claimant may be LGBTIQ+ and any LGBTIQ+ person may be an asylum claimant (Portman and Weyl 2013, p. 45).

As explored in Chap. 6, some participants have suggested that more decision-makers should be LGBTIQ+ themselves (William, Germany; Veronica, Germany; Alphaeus, Germany). A caseworker’s SOGI is obviously no assurance of the quality or fairness of their decision-making, and during our fieldwork we heard of LGBTIQ+ decision-makers relying excessively (even inappropriately) on their personal experiences and beliefs to assess SOGI asylum claims. Whether or not some form of positive discrimination would be viable or useful, it is important to ensure decision-makers dealing with SOGI claims do not hold homophobic or transphobic views, as has been done in the USA (Sridharan 2008). Aside from any specific measures to ensure that decision-makers on SOGI asylum claims are aware of and sensitive to the needs of these groups of claimants, they should, of course be complying with equality and human rights law and guidance more broadly, relating to sexual orientation and gender identity, but also to ‘race’, gender, disability, age, and religion or belief. In the UK, employees in public bodies should go further than simply refraining from discrimination to positively promote equality of opportunity under the Equality Act 2010. And recruiting a diverse workforce is now recognised as good practice in most employment contexts, whether in the public, private or voluntary sector: the Home Office, the BAMF and the territorial commissions in Italy should be encouraging recruitment of SOGI minorities, just as they should be encouraging applications for decision-making posts from members of all under-represented groups in society.

Finally, country of origin knowledge is so critical to SOGI (and other) claims that asylum authorities should explore the possibility of allocating caseloads on the basis of staff members’ country-specific understanding. This already happens to some extent in Germany and ‘enables caseworkers to gain in-depth knowledge of the general situation prevailing in the countries of origin of applicants, which helps to ensure an accurate and appropriate assessment of the circumstances surrounding the application’ (AIDA and ECRE 2019, p. 12). To combat possible desensitisation, this approach again needs to be complemented by high-quality training, shadowing, mentoring and staff welfare measures.

Once criteria are established to allocate cases to certain caseworkers – including a certain degree of specialisation, as described above – the screening interview should be used to identify the most appropriate interviewer for the main, substantive interview (Alphaeus, Germany), as already done, at least informally, in some territorial commissions in Italy. Guidance should prompt selected caseworkers (and also judges) to be honest in recognising their limited knowledge and skills (Titti, decision-maker, Italy). This may mean suspending interviews on occasions, or calling in a more experienced colleague, or postponing the interview until such a colleague is available, or scheduling a second interview to ask for further clarification and build on previous questions on the basis of knowledge the interviewer may have acquired subsequently. The same is true for appealhearings.

Finally, on the matter of whether the interviewer and the decision-maker should be the same person or not, those participants who expressed an opinion about it favoured combining both roles in the same individual (Daniele, decision-maker). This solution facilitates the comprehensive use of all evidence gathered throughout the interview, including non-verbal cues and the claimant’s demeanour, although it is important that these are not interpreted on the basis of cultural, hetero or cis-normative or any other kind of stereotype. This may help to avoid depersonalising the claim and objectifying the claimant. Combining the role of interviewer with that of decision-maker should also contribute to quicker, but no less rigorous, decision-making. A peer-review mechanism can help avoid any risk of loss of objectivity, especially in case the first decision proposed is negative (Jansen 2019, p. 124).

3.2 Procedural Rules

Asylum adjudication procedures are one of the key elements of SOGI claimants’ overall experiences, and have therefore been a focus for recommendations (Hruschka 2019; Jansen and Spijkerboer 2011). Although the nature of the procedure – adversarial, inquisitorial or mixed – was used as one of the criteria to choose the country case studies (Chap. 2), our analysis did not reveal significant differences for SOGI claimants on account of that element in particular. Instead, a problem that very many of our participants raised was the length of time that the asylum process takes (Chap. 6). We heard of the terrible impact this has on claimants:

at least to consider the amount of time they keep people in asylum, because now they are psychologically damaging people who would have made a positive impact on the economy or something, but people now get out of this and end up just maybe being on benefits because they have forgotten themselves, they have lost themselves. (Jayne, UK)

Many of the participants in our research thus highlighted the need for ‘quicker decision making’ (S8, NGO worker, UK), a ‘clearer process, less dragged out’ (S74, NGO volunteer, UK), and believed that to ‘make the process quicker definitely helps’ (C50, UK). Speed should be complemented by greater consistency: ‘And I think in general the system needs to have clear dates and outlines of… this waiting without knowing when [you will get a decision] is very difficult for people to deal with’ (Halim, Germany).

Nonetheless, speed should not come at the price of lower standards in decision-making or fewer procedural safeguards, as it is often the case in acceleratedprocedures (Chap. 6). Shorter procedural deadlines may undermine the capacity of SOGI claimants to prepare adequately and present their case effectively:

give them time to be prepared for the asylum or how to present their case, and don’t use the fact of that we have to do it fast, fast, fast, to finish the procedure. Because some people don’t know what to speak, don’t know what to say. Maybe they faced violence, maybe they faced discrimination, but they don’t know that they have to say it. (Ibrahim, Germany)

Ibrahim, along with several other participants, thus advised against placing SOGI claimants in fast-track or acceleratedprocedures (S119, NGO worker, Germany; Noah, NGO social worker, Germany). A quicker process must never be at the expense of a fair and individualised assessment.

An important aspect in this respect is the notion of ‘safe country of origin’, which is often the basis for fast-tracking an asylum claim (Chap. 6). Importantly, countries listed as ‘safe’ by domestic authorities are anything but safe for SOGI minorities:

look at how many trans women have been killed in Turkey in the last five years (…). So, as long as we accept that as a reality, I think more and more people will say “then I have no choice but to leave this country”. (Terry, member of the European Parliament)

Our recommendation is that the notion of ‘safe country of origin’ is inappropriate in general, but certainly for SOGI claims, as even countries with a generally good human rights record may be unsafe for SOGI minorities (Ferreira et al. 2018). Our participants were also of this opinion, arguing that asylum claims should rely purely on individual assessments, according to IRL and IHRL (Chap. 3).

Alongside the speed of the procedure, participants were generally adamant that the interview environment needs to be considerably improved: ‘Making the process gentle is very important!’ (C50, UK) The interviewing technique needs to be made less intimidating and decision-makers should adopt a kinder and more empathic style, as well as being more open to hearing the claimant (Evelyne and Anne, lawyers, Germany). As Mara, a lawyer in Italy, recommended, ‘they [interviewers] should have adequate preparation to do the interview with serenity and try to understand who is in front of them’. She stressed the need for empathy to be established in the interview.

Following the example provided by Titti, a decision-maker in Italy, which was explored in Chap. 6, this may entail using more neutral locations, the decision-maker should introduce themselves, ask if the claimant has any questions before starting the interview, explain that the claimant should feel confident and secure in expressing their opinion and thoughts. It may help to start with some ‘small talk’, ensure claimants feel at ease by offering them breaks, a glass of water, etc., and perhaps even say something like ‘you know, we’re both here, [I know] it’s not going to be easy, [but] try to give as much as you can’ (Emily, decision-maker, UK). Participants also emphasised that ‘[w]e should be given enough time during the interview and with some time to relax’ (C38, Germany). To ensure this empathetic environment, decision-makers should adopt the terms used by SOGI asylum claimants to describe themselves (unless the terms are pejorative) and refer to their circumstances in a manner consistent with the relevant COI, avoiding Eurocentric perceptions (Helena, EASO staff member). Creating an atmosphere conducive to open disclosure by the claimant also means ensuring interviews are carried out in a private setting, confidentiality is respected by the interviewer and also by any interpreter or third part present, and explaining this to claimants to make sure that they are confident that this is the case (Breen and Millo 2013, p. 56). This is an issue that particularly needs to be addressed in the context of the first, ‘screening’ interview (Livio, lawyer, Italy), often held in large and semi-public spaces.

Integral to building a trusting relationship is adopting a ‘stage-by-stage approach’ during the main interview, whereby each time period of the claimant’s journey and each relevant issue is dealt with in turn and at an appropriate pace. This allows for adequate exploration of issues (Sofia and Emma, NGO workers, Germany), gives the opportunity to claimants to clarify any apparent contradictions, and renders the overall interview experience less stressful and traumatising for the claimant. SOGI asylum interviews should be based on neutral, open-ended questions that interviewers can adapt as they see fit, but which are the starting point for the interview.

Some participants also suggested that claimants should be able to ask for a different interviewer, not only on grounds of gender but also religious belief and ethnic or national origin, where the interviewer’s identity is likely to inhibit the claimant in responding. Although respecting such preferences could be seen as discriminatory towards the interviewer and would in many contexts be considered unjustifiable (Chap. 6), we submit that the asylum system’s core concern should be to deliver fair decision-making. If that requires – under certain limited circumstances and without breaching equality principles or law – the replacement of an interviewer to facilitate more open testimony, then asylum agencies should allow it (Ferreira et al. 2018).

Besides the interviewer, another key actor in the interview setting is the interpreter, whose role was a concern for many participants (Chap. 6). Such concerns related to the interpreter’s gender, religious beliefs, ethnicity and, more importantly, their sensitivity towards SOGI matters. All these factors may have an impact on the quality of the interpretation and atmosphere of the interview, so great care needs to be taken in the choice of interpreter (Shany, Germany). Public authorities should also ensure interpreters have appropriate training (Sect. 11.6) and be open to replacing them when claimants do not feel confident speaking openly not only because of the interpreter’s sex/gender but also religious belief or ethnic or national origin (Ferreira et al. 2018).

Another important participant in the process – sometimes striking for their absence – is the legal representative. Our participants’ concerns about asylum legal representation are the basis for a number of important recommendations. In light of the issues discussed in this regard in Chap. 6, legal representation should be not only available, but also compulsory and supported through legal aid from the start of the process; in other words, not only at appeal, but also at administrative level (C3, Germany; S57, NGO volunteer, UK; S141, NGO worker, Germany; Noah, NGO social worker, Germany; Nazarena, lawyer, Italy; Hruschka 2019). By securing free legal representation even before the screening process, potential claimants will be able to understand the possible grounds on which they can claim asylum and how to prepare their initial claim (Sofia and Emma, NGO workers, Germany; Giuseppe, lawyer, Italy; Daniele, decision-maker, Italy; Right to Remain 2019). Moreover, if members of SOGI minorities receive legal support before they submit their claims, they are more likely to file well prepared and credible asylum claims, avoiding the likelihood of a refusal and the costs to all parties of going through an appeal (Held et al. 2018).

This approach extends to ensuring access to legal representatives and to NGOs offering legal advice for claimants living in detention and accommodation centres, as well as at hearings. In Germany and Italy, in particular, the presence of the legal representative in interviews was seen as important (Thomas, NGO volunteer, Germany; Nazarena, lawyer, Italy). Where no free legal representation is available at administrative level, then independent legal advice and information by NGOs should be guaranteed. Alternatively, reception staff and accommodation centres’ staff should be trained to assist claimants in producing their personal statements, as happens in the Italian accommodation system, providing that the quality and independence of such support can be ensured (Chap. 8). In short, participants were adamant that the quality and availability of legal advice and representation must improve (S74, NGO volunteer, UK).

Although the claimant, interviewer and interpreter (or language mediator) are usually the only actors present at the interview, several participants argued for allowing supporters to be present, at least at the main interview. This helps reducing the power imbalances that characterise an asylum interview (Daniele, decision-maker, Italy; Giuseppe, lawyer, Italy). Where supporters are present at appealhearings, the positive effect this has on claimants’ confidence is palpable (Court observation, Hesse, 2018; Tribunal observation, northern Italy, 2018). A further way of empowering claimants, while also improving the credibility and transparency of asylum systems, would be to introduce and effectively establish an accessible and accountable complaints system (Noah, NGO social worker, Germany; Frank S., legal advisor, Germany; Barbara, lawyer, Germany), covering the roles of interviewers, decision-makers or interpreters. This should go hand-in-hand with strong quality assurance and control mechanisms (AIDA and ECRE 2019, p. 58).

In any asylum claim, the claimant’s testimony and evidence should be considered alongside the available COI, as discussed in Chap. 6. In this regard our participants recommended that the quality of COI urgently needs to be improved, that there should be more SOGI-specific information available, and that similar COI should be available and used more widely throughout the EU. As pointed out by Roberto, a decision-maker in Italy, the poor quality of COI in some countries, as in Germany and Italy, seems to coexist with the danger, particularly in the UK, of using COI as ‘mathematical models’ leading to automatic conclusions regarding asylum claims. It is therefore necessary not only to improve the quality of COI, but also to use it in an appropriate and individualised manner. Even when SOGI-specific COI exists, its focus on persecution can be problematic when the country in question does not criminalise same-sex acts, does not enforce those laws, or has just recently repealed them. SOGI-specific COI needs to cover a range of aspects related to the legal and social experiences of SOGI minorities and go well beyond broad-brush generalisations about country conditions for them. To achieve this, and inspired by practices and proposals of some social and NGO workers in Italy (Valentina, social worker; Vincenzo, LGBTIQ+ group volunteer), NGOs in the countries of origin concerned might be invited to contribute to the production of COI, always recognising that the quality of any contributions would need to be assessed (McNeal 2019). Finally, in terms of rendering COI of greater European application, EASO has made a significant contribution, including in relation to SOGI-specific matters (EASO2015), and we recommend that EASO further develops the provision of accurate SOGI-specific COI, and that decision-makers make better use of this material.

The Dublin system was another matter of concern and basis for recommendations from our participants. The pending reform of the Dublin Regulation will need to review the criteria in place for allocation of responsibility to a state for a given asylum claim, while addressing the specific needs of asylum claimants, including SOGI claimants, and ending the inhumane practice of transfers of people between EU countries. As analysed in Chap. 6, current Dublin rules throw claimants – very often SOGI claimants as well – into situations of stark uncertainty and although many claimants cannot be returned to the country of first entry in the EU for practical or legal reasons, they become involved in protracted legal and administrative processes while efforts at their social integration are inadequate (Louis, NGOvolunteer, Germany; Susanna, social worker, Italy). We recommend that EU institutions collaborate in the context of the CEAS reform to achieve a more humane system, one that allocates responsibility for asylum adjudication to member states in light of criteria that are more in tune to SOGI claimants’ needs and rights, such as family and other personal connections, cultural background, linguistic knowledge and protection of SOGI minorities.

At the appeal stage, and as with administrative-level interviews, improvements need to be made to the environment in which hearings take place. There needs to be greater consistency in the way that judges treat claimants: they should always be respectful, demonstrate cultural sensitivity, and use the pronouns preferred by the claimants. All judicial authorities should develop a code of conduct that encompasses rules on these matters, with a focus on equality, diversity and fairness, similar to the UK Equal Treatment Bench Book (Judicial College 2018). There must also be measures in place, such as induction and training, to ensure that all judges are familiar with and apply such codes.

A question of particular importance in the Italian context is the removal of the claimant’s entitlement to be heard in person in case of appeal. This is no longer a statutory obligation, and only happens when the judge (or legal representative) asks to hear the claimant rather than simply relying on the recording of the claimant’s interview with the territorial commissions (Chap. 6). Although this can have advantages such as not re-traumatising the claimant, it prevents the judge from requesting clarification and eliciting further information directly, and risks depersonalising the asylum claimant in the eyes of the judge. We recommend that judges ask to hear the claimant in person whenever possible, and particularly when they are inclined to reject the appeal.

The recommendations above would contribute to fairer asylum procedures that, in turn, may influence positively the asylum claim determination.

3.3 The Asylum Claim Determination

As we discussed in Chap. 7, asylum adjudicators need to engage with the range of international protection alternatives available within their legal system and the requirements for each one of these alternatives. The ultimate aim for SOGI – as for all – claimants is to obtain refugee status under the Refugee Convention, and reach a point of stability and security, where the full spectrum of their human rights is respected in the host country. To provide meaningful international protection, the narrow definition of a refugee under the Refugee Convention should be broadened by encompassing human rights law more consistently than is currently the case, in line with the approach outlined in Chap. 3. As such a development is unlikely in the current political context, here we concentrate on more realistic and pragmatic possibilities.

The first logical step in the substantive assessment of a SOGI asylum claim – determining the ground that is the basis for claiming asylum – generally consists in establishing the claimant’s membership of a PSG (Chap. 7). Our first recommendation in this regard is for decision-makers to also consider grounds for claiming asylum besides membership of a PSG, such as political or religious belief. Recognition of the multiple and intersecting grounds for claiming protection would better recognise the many factors and identities that are the basis for persecution, in line with our feminist and queer theoretical underpinnings (Chap. 3), and as supported by a large body of literature on intersectional discrimination and beyond (Macklin 1995; Markard 2016; Solanke 2009; Verloo 2006). Some of our participants (Sofia and Emma, NGO workers, Germany) argued that establishing membership of a SOGI minority in case of countries of origin where persecution of SOGI minorities is widespread should suffice to grant international protection, without the need for evidence of individual persecution. While this may be desirable, establishing individual persecution is at the heart of IRL, and in that context, our recommendations focus more, not less, on the specific circumstances of the individual. However, we do recommend that establishing membership of a SOGI minority be done on two bases, as has been already recognised in case law at EU and national level: first, the recognition that ‘objectively proving’ a claimant’s SOGI is an impossible task, no matter whether the focus is placed on the claimant’s identity or behaviour, as identities are complex, fluid, and develop in culturally specific contexts (Chap. 3); second, actual membership of a PSG is secondary, as perceived membership is the relevant issue (Ferreira and Venturi 2018; UNHCR2012, para. 41).Footnote 4

The second logical step in the asylum claim assessment – assessing the risk of persecution – has also been the object of recommendations by our participants. The most important of these relates to the need to follow the law in adopting a more appropriate (lower) threshold for determining what constitutes persecution (Elias, lawyer, Germany; Chap. 7). Furthermore, the risk of persecution needs to be assessed using the human rights analytical underpinnings delineated in Chap. 3. Although it is a battle that appears to have been won in most legal systems, there is still a need to increase awareness of the role, importance and impact of persecution by private actors in the context of international protection (Gisela, lawyer, Germany), as well as of the need for adequate verification of the reasons why protection by country of origin’s authorities is not available in these cases.

Whether or not the criminalisation of same-sex acts in the country of origin should suffice to make a finding of persecution was a concern for our participants. Such criminal laws – whether enforced or not – lead to stigmatisation, victimisation, blackmail and increased vulnerability to degrading treatment, sometimes including torture. The mere existence of criminal laws should therefore, according to several authors, be recognised as persecutory (Bejzyk 2017; Jansen and Spijkerboer 2011). The fact that Italian Supreme Court case law has also taken this approach gives SOGI asylum researchers and activists a weapon for campaigning to extend this approach (Danisi 2019; Jansen and Spijkerboer 2011).Footnote 5 We add our voice to theirs in recommending that criminalisation of same-sex acts should suffice to make a finding of risk of persecution for the purpose of granting international protection.

Similarly, it is indisputable that there remain traces of ‘discretion reasoning’ in asylum adjudication in Europe when determining the risk of persecution (Chap. 7). These traces need to be eliminated (Elias, lawyer, Germany; Beth, lawyer, UK), because decision-makers should ‘not tell people to change who they are so that [they can] live’ (C59, UK). To achieve this, greater abidance by CJEU jurisprudence prohibiting ‘discretion reasoning’ – namely the decision in X, Y and Z – is recommended (Louis, NGOvolunteer, Germany). Still in the context of assessing the risk of persecution, we also recommend that decision-makers develop a more acute understanding that there are no internal relocation alternatives in most cases of SOGI asylum claims (Sofia and Emma, NGO workers, Germany).

Our recommendations relating to the standard and burden of proof are largely prompted by our participants’ direct experiences. First, decision-makers must keep uppermost in their minds that the applicable standard of proof is only to a ‘reasonable degree’ and take far more seriously than at present the principle of the benefit of the doubt (Chap. 7). As one participant said, there needs to be ‘[p]roper adherence to the low standard of proof (refusals are made too often without real reason)’ (S114, lawyer, UK). The burden of proof is to be shared between the claimant and asylum authorities, as clearly stated by the UNHCR (1998, para. 6, 2011, para. 196) and recognised by high judicial instances.Footnote 6 In this respect, ECRE rightly points out that ‘it is crucial that determining authorities have sufficient financial resources at their disposal to conduct a thorough and rigorous assessment of the application, especially where it includes gathering information and evidence by their own means’ (AIDA and ECRE 2019, p. 26). There are, however, proposals for going further than this and using the reversal of the burden of proof in asylum law, as happens in discrimination law (Network of Legal Experts in the Non-Discrimination Field 2015). One of our participants (who asked to remain anonymous) argued that we should reverse the burden of proof and that it should be for the authorities to prove that a claimant should not be granted international protection once claimants put forward what – at least at first – seems to be an overall believable claim.Footnote 7 This is a bold, but interesting avenue of reform, which has the potential to rebalance the power dynamics in the asylum process. Whether or not it is explored further, adjudication authorities need to adopt a more proactive approach in collecting information that may confirm claimants’ claims (as the Italian judiciary has defended – Sect. 7.4, Chap. 7), and not dispute minor facts and small points of evidence submitted in order to dismiss a claim, as so often happens at present.

As for forms of evidence, here there is much scope for improvement. One of the gravest concerns is decision-makers’ expectation to have evidence – even if only in the form of personal testimony – pertaining to very personal and private aspects of claimants’ lives. Although decision-makers should by now be aware that no evidence of a sexual nature should be elicited or accepted, we saw in Chap. 7 (Sect. 7.4.2) that in all three country case studies lines of questioning may be excessively sexualised. Our participants were adamant that decision-makers need ‘[t]o stop asking private sex questions to asylum seekers who are LGBT just to prove that they’re LGBT people’ (C53, UK) and that ‘during the interview asking people questions to do with their bedroom should stop because most of these are so embarrassing not only to us but also to the interviewers’ (C38, Germany), something reiterated by several other participants (C59, UK; S121, lawyer, UK; Christina, UK). While sexually explicit evidence is rarely solicited or accepted, the dismissive attitude of authorities in relation to other evidence provided then puts indirect pressure on claimants to provide details of an intimate nature (ICIBI2014, p. 29). More generally, the type of evidence expected and how it is elicited need to be more culturally and socially sensitive, requiring a greater level of sophistication and tailoring by decision-makers:

So it is one thing I would emphasise, BAMF should look at that, the evidence that it asks for people, normally it is hard to get. Or people were not in the position of getting it. You are running for your life, you’re in big trauma, you’re in fear and now you’re taking a selfie or you’re recording voices?!. (William, Germany)

I’ve been dealing with 16/17 year olds who can’t read or write, you have a greater perception of how to interview them if you know the context. I mean, a person who can’t read the clock, you’ll know that you’ll have to ask him if it was day or night, “was it before or after Ramadan?”… and not “what month was it”. (Roberto, decision-maker, Italy)

In order to respect claimants’ sense of personhood and autonomy, self-identification should be the default position (Hinger 2010, p. 405) and starting point for any asylum determination process. The burden of proof should then be on the authorities to find evidence negating the claimed SOGI, and any such evidence would need to be carefully analysed. More generally, lines of questioning should avoid implicitly assuming the claimant’s lack of credibility:

if you feel that you are under a lot of pressure, if you feel that this is an interrogation, and not so much an open discourse or something like that, probably the stress level is absolutely high and then maybe also wrong findings are much more likely. So I think it is actually in the interests of both sides that there is a process and a procedure put in place that gives the space to tell the stories, and then to grant asylum on the basis of that. (Terry, member of the European Parliament)

An open line of questioning is essential to develop the trusting relationships that lead to good decision-making:

And then to open up about something that makes you even more vulnerable, that just takes time and it takes trust and so if you have… officials and/or interpreters who really understand it and actually are able to express it and convey it and develop this trust with people, I think that is honestly the only real way, [it] is through conversation, because each individual is individual. (Jules, staff member at ILGA-Europe)

Credibility assessment, being the crux of the matter in most asylum claims (Chap. 7), deserves careful consideration. First and foremost, the ‘[c]ulture of disbelief must go’ (C58, UK). Determination systems need to change so that decision-makers do not adopt as default position that asylum claimants are lying, a point that was made repeatedly during our fieldwork – and in all three countries (Kadir, NGO worker, Germany; Maria Grazia, decision-maker, Italy; S74, NGO volunteer, UK). Credibility assessment also needs to be conducted in a culturally sensitive manner and responsive to individual circumstances, rather than based on stereotypes related to SOGI (or any other characteristics). This affects how interviews are carried out and decisions reached: besides not basing the credibility assessment of claimants on stereotypes, authorities need to ‘give more context to the applicant’s history’ (S106, lawyer, Italy). We reject the CJEU’s assertion that ‘questions based on stereotyped notions may be a useful element’.Footnote 8 On the contrary, stereotypes should have no bearing on the assessment of a claimant’s membership of a SOGI minority; any stereotypes will necessarily rely on Western understandings of SOGI, and also be racialised, gendered and class-based (Chap. 3). Accepting stereotypes is in inherent conflict with the individualised approach that is the basis of refugee law, and should be abandoned as a component of decision-making (ICIBI2014, pp. 26–27).

Decision-makers also need to move away from the range of prejudices explored in Chap. 7, such as the belief that proving SOGI depends on having a partner: ‘I wish the decision makers would change their mentality of expecting that every LGBTQI person should have a partner before going to the interview. For someone who went through a traumatising situation it’s not that easy’ (C37, Germany). It should also be irrelevant how a claimant ‘performs’ their SOGI, for instance how they dress or socialise (Helena, EASO staff member), and little weight should be placed on ‘late disclosures’ as such, in line with the CJEU decision in A, B and C (Ferreira et al. 2018). In short, credibility assessment needs to be carried out more carefully, negative assessments of credibility need to be better justified by making appropriate use of COI (Nazarena, lawyer, Italy) and more trust needs to be placed on evidence – particularly the personal testimony – submitted by claimants (Amanda, NGO worker, Brussels).

If a decision to grant international protection is made, then it should most commonly be refugee status, as subsidiary protection and humanitarian protection are in most circumstances not legally appropriate for SOGI claimants. Furthermore, legal statuses should entail residence permits of longer duration than currently exists in most states,Footnote 9 so that beneficiaries of international protection have enough time to recover from the ordeals many of them have gone through and can start to integrate in the host country (Bebars, Germany). Freedom of movement within the host country, as well as within the EU, should be facilitated (Marlen, legal advisor, Germany). If international protection is denied, it is unacceptable that ‘people [are] removed before they can properly explore avenues to stay’ (S57, NGO volunteer, UK). Removal is also frequently connected to detention and accommodation, to which we now turn.

4 Detention and Accommodation

Accommodation and detention issues explored in Chap. 8 were the focus of much concern by our participants.

The question of whether or not there should be SOGI-specific accommodation became an increasingly live issue during our fieldwork. The majority of our participants recommended the provision of accommodation exclusively shared by SOGI claimants, across Germany (Veronica; Thomas, NGO volunteer; Frank S., legal advisor; Milad; focus group no. 1, Hesse), Italy (Kennedy; Odosa; Antonella, LGBTIQ+ volunteer) and in the UK (Melisa, NGO worker). This would ensure ‘that people can support each other and [do] not have to be “in the closet” in their own homes for fear of discrimination’ (S74, NGO volunteer, UK). We share this recommendation to the extent that we believe that SOGI-specific accommodation should be made available, but also believe that such accommodation facilities need to be discreet, of small scale, and only used upon confirmation that the claimants in question prefer it to general asylum or refugee accommodation, to ensure the safety and self-determination of claimants. Good experiences have been reported by refugees in Nairobi (Kenya) who have chosen to live in separate LGBTIQ+ accommodation with their costs covered (Breen and Millo 2013, p. 55).

In line with our human rights, feminist and queer analytical lenses, we would thus put the emphasis on safety, on the one hand, and on autonomy and freedom (Chap. 10), on the other, rather than endorsing assumptions about what is best for claimants. To ensure safety, we recommend a system of certification of accommodation facilities as ‘LGBTIQ+ friendly’, as already in place in Sweden (European Migration Network 2016), although one might well argue that all accommodation should be SOGI-friendly, welcoming and safe. This would require, amongst other things, mandatory training for staff and regular monitoring. Accommodation should be tailored to meet claimants’ needs, and claimants should have as much choice as possible about the area where they live and the type of housing they live in. To avoid putting claimants in situations of social isolation and hostility, access to appropriate information, support groups and social activities needs to be ensured (Ibrahim, Germany; Louis, NGOvolunteer, Germany; Kadir, NGO worker, Germany; Jonathan, LGBTIQ+ group volunteer, Italy; Gary, NGO worker, UK): ‘People should not be given accommodation far away from the places where there are facilities for LGBT people such as advice centres, places of worship’ (S86, NGO volunteer, UK). There are particular concerns for trans claimants, making trans-specific accommodation upon request a priority (Kamel, Italy; Celeste, social worker, Italy).

We have some recommendations that are common to SOGI-specific and general accommodation facilities. First, ‘camp-style’ accommodation should be discontinued where it still exists, and ‘regular’, less conspicuous accommodation should be provided to facilitate social integration for both claimants and refugees (Halim, Germany; Tina, Germany; Chiara, NGO worker, Italy). Second, consideration should be given to individual and group dynamics in accommodation design, to reduce instances of the kinds of harassment, bullying and violence that our participants have experienced (Chap. 8). There may be tensions between SOGI claimants and their co-nationals: ‘There should be greater attention to the problems that can be created within the reception centres between LGBTQI+ people and compatriots’ (S106, lawyer, Italy). Third, when issues and conflicts do arise in the accommodation allocated, it is important that these be addressed in a way that respects minorities, equality and diversity (Kennedy, Italy). If wished, transfer to more appropriate accommodation should be facilitated, especially to larger cities to avoid social isolation (S119, NGO worker, Germany; Fares, Germany). Fourth, privacy should be respected (Dev and Fred, Italy), including in shared toilet and bathroom areas. Fifth, accommodation facilities and housing more generally – when not managed by public entities – should not be contracted out to organisations that reflect excessively conservative or religious values (Celeste, social worker, Italy) or who recruit staff from extremist (racist or homophobic) organisations (Komaromi 2016), where there is a risk that SOGI claimants will feel coerced to stay ‘in the closet’. Accommodation providers, whether public bodies or private contractors, need to be compliant with LGBTIQ+, gender, ‘race’ and other domestic equality law and good practice. This needs to be monitored and publicised to ensure that claimants have confidence in their accommodation-providers. Sixth, and relating to the previous point, information dissemination and awareness raising in accommodation facilities is crucial. This concerns asylum in general, but also SOGI in particular:

It is also important that in accommodations, there are various flyers or something like that, [to make it clear that] there are LGBT people, this is quite normal, maybe that is not normal for you but still you need to get used to that, they [SOGI claimants] want to have some support here, you shall behave yourself as it is stated in the law, and for other people in the accommodation say that it is also quite OK. (Julia, Germany)

As further explored in Sect. 11.6, accommodation facilities should support training and events led by LGBTIQ+ organisations to raise awareness of SOGI equality and rights (Giulia, LGBTIQ+ group volunteer, Italy).

Detention is a matter that, although affecting the UK in particular, merits general attention. If we had to choose a single recommendation here, it would undoubtedly be that ‘no asylum seeker should be detained’ (S83, religious minister, UK) and to ‘end immigration detention for all’ (S74, NGO volunteer, UK). Detention may be particularly traumatic for SOGI asylum claimants as we saw in Chap. 8, and we were told on several occasions that there should be ‘no detention of LGBTQI+ asylum seekers’ (S57, NGO volunteer, UK). Unsurprisingly, therefore, our recommendation is that there should be no detention of SOGI claimants. This is supported by a presumption that detention is an injustice to any individual who has not been charged with or found guilty of a crime, and that includes all asylum claimants, although our focus here is on SOGI claimants.

Finally, provision of accommodation should not cease as soon as, or soon after, international protection is granted to SOGI claimants. Rather, it is essential that SOGI claimants – as asylum claimants more generally – retain access to publicly-funded accommodation for a period sufficiently long to allow them to find alternative accommodation, while searching for work, accessing education or making other suitable arrangements for their particular circumstances.

These recommendations should go a long way to improving SOGI claimants’ accommodation experiences. Yet, outside the place where they live, they also meet considerable challenges, including in the fields of health, work and education.

5 Life ‘Beyond Papers’

Asylum claimants and refugees often live in precarious conditions, with insufficient resources and close to destitution: ‘not being able to work, having to survive on very little money – this all forces people into poverty’ (S110, NGO volunteer, UK). As we discussed in Chaps. 4 and 9, the social integration of asylum claimants and refugees in general, and those who claimed international protection on SOGI grounds in particular, is under-planned and under-resourced. Countries should move towards an individualised and tailored approach to social integration, to ensure each claimant and refugee is welcomed and quickly recognised as an appreciated member of the host society. Here we make relevant recommendations particularly relating to health, work and education.

Access to health services should be universal, and not restricted to emergency provision. Privacy and specific training stand out as the priorities in this field. To ensure effective access to such services, however, the costs of interpretation and travel need to be publicly provided (whether through health insurance schemes or otherwise). Two particular areas of healthcare must be more responsive to SOGI asylum claimants’ needs. First, mental health (Halim, Germany; Ashley, psychotherapist, UK), where there is a need for ‘[b]etter access to psychological therapies – many [SOGI claimants] are traumatised’ (S74, NGO volunteer, UK). Second, hormonal treatment for trans claimants and refugees, including continuity of medical care, confidential treatment of data and respect for claimants’ choices to a greater extent (Kamel, Italy).

Access to the labour market has also been highlighted as essential by our fieldwork participants:

I don’t know any refugee who doesn’t wish to work (…) social benefits and asylum support are pretty good at the beginning, but people realise very quickly that everything that people would really like to afford is not affordable with that money and people must simply work. (Thomas, NGO volunteer, Germany)

Rules on access to the labour market should be interpreted according to the aim of the EU Reception Directive, rather than in a narrowly restrictive way. In other words, any job should in principle be accessible to asylum claimants after 6 months of filing an asylum claim. Reception centres and accommodation facilities should play a role here: ‘the accommodation centre should always provide a training programme in order to enable them [claimants and refugees] to find a job when they go out of the camp’ (S4, lawyer, UK). Broader public policies in the field of employment should facilitate these efforts, including through the creation of part-time jobs and paid training schemes such as the German one (Chap. 9), to allow claimants and refugees to gradually integrate into the labour market and provide them with an independent income. Such efforts would help SOGI claimants and refugees to avoid exploitation, including through working illegally (Just Me, focus group no. 3, northern Italy).

Finally, access to education for SOGI claimants and refugees needs improvement. While education has less of an overt SOGI dimension than the other aspects of service provision and public policy discussed, it is included here because it contributes to the employment potential, social integration and general wellbeing of SOGI (and all) claimants and refugees, in particular their mental health (C50, UK). Participants highlighted the need for better access to language courses, especially where claimants are unlikely to speak the host country language, as was common in Italy and Germany (S8, NGO worker, UK; Diana, Germany; Susanna, social worker, Italy). The right to education of SOGI claimants needs to be respected in a non-discriminatory manner, including on grounds of their ‘refugeeness’ and the intersection of their various characteristics.

These kinds of educational integration measures should include easier recognition of academic and vocational qualifications from countries of origin, in line with the Qualification Directive (Article 28). This would enable claimants to further their education in the host country and also facilitate integration in the labour market.

A great deal of social care and what we may call ‘cultural interpretation’ is required to support the social integration of SOGI asylum claimants and refugees in the areas explored above and others. Where appropriate, such social care and cultural interpreting work can be carried out by people of the same country of origin or ethnicity as the asylum claimant or refugee in question, as that may facilitate understanding and rapport (Angel, Germany). These and other aspects transversal to both social integration and the legal adjudication process are now discussed.

6 Building Capacity and Enhancing Competences

While legal adjudication and social integration processes are, for the most part, considered separately for analytical purposes, they sometimes pose similar challenges for SOGI claimants and refugees and coordinated action may be needed to address those challenges. As highlighted by our participants, social care needs to go hand-in-hand with the legal process and start simultaneously (Noah, NGO social worker, Germany). Previous chapters in this work have shown that SOGI has a significant bearing on the experiences of claimants and refugees at a legal and social level, suggesting that specific expertise, services and measures are required to address the shortcomings identified at both levels. Here we make recommendations to build the capacity and enhance the competences of different categories of actors encountered by SOGI claimants and refugees, first focusing on training.

Once recruited and trained, good staff need to be retained. Burnout, short-term contracts, low salaries, insufficient funding and promotions make careers in the asylum system short-lived and this has a negative impact on the quality of decision-making and services provided (Sabrina, NGO worker, Germany; Cristina, UNHCR officer, Italy). High turnover of staff also makes it difficult to make the best use of the training that individuals receive, and the skills and experience they develop. Support for those working in the asylum system is essential, to prevent vicarious trauma, burnout and desensitisation, but this generally does not exist (Evelyne and Anne, lawyers, Germany). Employee self-care needs to be adequately resourced, as a corollary of the duty of care that the state has towards its civil servants, just as any employer or service-provider does. It is in the interests of employees and employers but also the basis for sensitive case-work and service provision in the asylum field.

This applies not only to public servants, but also to NGOs and support groups, a point raised by several of our participants and which generated a number of recommendations. Participants saw a need for ‘more support groups within the community’ (S57, NGO volunteer, UK) and with better access to accommodation centres to support residents who wished it (focus group no. 1, Hesse, Germany). Support groups and small LGBTIQ+, asylum and migrant organisations need better resources to provide this kind of individual support, as well as use their experience in lobbying, campaigning and policy work. We were also told that ‘more awareness raising [is] needed in LGBT communities about how they can support LGBT asylum seekers – why people are fleeing persecution, and just how traumatising and unjust the system is’ (S110, NGO volunteer, UK), to address the discriminatory attitudes that subsist within the LGBTIQ+ community (Chap. 10). As with any area of support and service provision, strong protection and safeguarding policies need to be in place in NGOs and support groups that work with SOGI asylum claimants and refugees, to prevent abuse by support workers and volunteers and improve ‘awareness and empowerment for refugees regarding sexual violence’ (Ibrahim, Germany).

Measures to empower SOGI asylum claimants and refugees themselves are crucial. For this to be possible, there needs to be ‘better investment in community development projects for LGBT asylum seekers and refugees – to enable them to effectively self organise, provide an effective social support network and to campaign’ (S5, NGO worker, UK). SOGI beneficiaries of international protection:

should also be supported to give back to the community. They have a lot of experiences and… yeah… people should be accessing some sort of spaces to organise for their communities. And there are definitely natural leaders and people who show up and can start projects and start initiatives or spaces. So there will be empowerment and also helping the new ones to integrate or to make their way. (Halim, Germany)

Across all areas of what we might call the SOGI asylum system – decision making, appeals, accommodation, and other public services – there was a consensus amongst our participants about the need for more and better SOGI asylum training, as already pointed out by the UNHCR (2012, para. 60(iv)). This applies to officials and public employees working in asylum, but also to those acting on behalf of the state (where services have been contracted out, most obviously in accommodation and reception services) and those offering legal advice and representation to SOGI claimants. SOGI asylum training materials should cover all aspects of an asylum journey, including terminology, procedural safeguards, interviewing technique, substantive status determination, housing, work, health and education, and incorporate the recommendations outlined in this chapter. Training should include how to adopt a caring and sensitive approach (Mariya, NGO worker, Germany), including acquiring skills in empathy, as well as competences in equality and human rights law and policy, and an understanding of confidentiality requirements (Cristina, UNHCR officer, Italy). Furthermore, it should include how to avoid micro-aggressions and minimise power dynamics and imbalances (Kadir, NGO worker, Germany), where to signpost claimants who have particular needs, tools to combat homonormativity (Vincenzo, LGBTIQ+ group volunteer, Italy) and content covering SOGI matters in the most common countries of origin (Nazarena, lawyer, Italy). Importantly, training should address how to avoid re-traumatising claimants:

programmes to train the staff to be more sensitive, not to laugh when these people come through who have been traumatised. I didn’t have to go through war to leave my country but I was traumatised in a different way. So you laughing when I mention my country doesn’t help me. I might look poised and confident but I’m struggling, I’m panicking, I developed agoraphobia now since I came to Germany. I get panic attacks every now and then in public spaces. (…) It’s training with how to deal with traumatised people. (Marhoon, Germany)

Training needs to be adapted to different categories of decision-maker or service-provider. Several organisations have produced good quality SOGI asylum training materials (Gyulai et al. 2013, 2015; IOM and UNHCR2019; ORAM 2015; Rumbach 2013), but besides the need to ensure these materials are regularly updated and culturally appropriate, there is undoubtedly room to improve their dissemination and impact.

However, adequate training and training materials are unlikely to be a complete solution, as decision-makers and other SOGI asylum system actors may become ‘training-resistant’ (Barbara, lawyer, Germany). Training needs to take such factors into consideration, it needs to be in-depth and it should be revised and repeated on a regular basis (Breen and Millo 2013, p. 55; Rumbach 2013, p. 42). In the case of Italy, this needs to include all territorial commission members (Maria Grazia, decision-maker, Italy; Chiara, NGO worker, Italy). Owing to the large number of people working or in some way involved in asylum systems in Europe, there may be call for a cascade approach to training; in other words, states should ensure that key officials at a domestic level receive the necessary training, and these officials should then disseminate it to their colleagues. With time, an across-the-board requirement should be introduced that all employees and officials acting on behalf of the state who are responsible for decision-making and/or in direct contact with claimants need to have received training, including a SOGI-specific component, based on UNHCR and EASO guidance.

Having regard to the trends emerged in Chap. 6, different kinds of training are needed for the many different actors that a SOGI asylum claimant will encounter during the asylum process. Staff meeting new arrivals in reception and accommodation centres, or responsible for administering initial or screeninginterviews, will need to be well-trained in how to create a safe and relaxed space for people who find themselves in an unfamiliar environment. Asylum adjudicators were also singled out as needing training: ‘They do not have to do diversity training, they do not have to do awareness training, they do not have cultural competence training, nothing, none of this’ (Barbara, lawyer, Germany). As a particular example, Marlen, a legal advisor in Germany, said that ‘it may not be normal in your [decision-maker’s] own life reality that lesbian women have children, but there are other realities in life, and you should probably have already learned that if you go into this [asylum system]’. Equally, in the UK, we heard:

there should be training within the HO [Home Office] on understanding sexuality and gender identity issues. There are often very stereotypical and westernized ideas regarding how someone realizes they [are] LGBTQI and also stereotypical ideas of how they should then live their life. (S126, NGO worker)

Judges hearing SOGI appeals were often recognised as having the required legal expertise, but not the necessary life experience or human skills to deal with these cases (Elias, lawyer, Germany), making ‘more training on unconscious bias for all courts’ a requirement (S57, NGO volunteer, UK) and, more generally:

The people who conduct hearings need to be well trained in LGBTIQ lifestyles. And not only lesbian, gay and bisexuality, but maybe – but not maybe, but certainly – pansexuality, asexuality and gender outside the binary gender system and not ask questions about it, but simply accept how people define themselves. (Mariya, NGO worker, Germany)

Similarly, training for asylum adjudicators needs to raise ‘awareness of LGBTQI+ issues, the difficulties faced by individuals from different cultural backgrounds and encourag[e] questioning of heteronormative assumptions’ (S147, barrister, UK), in line with our queer theoretical underpinnings (Chap. 3). Decision-makers themselves acknowledged the need for greater training, particularly in relation to interrogation techniques, and went so far as suggesting individual coaching by psychologists on how to conduct hearings and interviews (Emilia, judge, Germany; Filippo, senior judge, Italy). Judges may require training in asylum law in general, as very often they are general administrative or family law judges, for example, with no particular knowledge in the field of asylum or even migration (Emilia, judge, Germany). As Filippo, senior judge in Italy, said, ‘preparation means being self-taught’. A more systematic, comprehensive and sophisticated approach to the training of judges is necessary.

Those offering legal advice and representation to SOGI claimants should also benefit from training to be able to deliver their services with the necessary quality: ‘legal professionals should [be trained to] have specific competences in knowing how to identify LGBTQI+ people and how to support users in preparation for the Commission with greater professionalism’ (S106, lawyer, Italy).

Ensuring better trained interpreters and translators (where relevant) was also identified as a priority (S119, NGO worker, Germany; Zouhair, Germany). Considering the importance of the interpreter’s role (Chap. 6), ‘it has to be made sure that… also for the interpreters there is this specific form of training and an awareness around the situation of people who flee on the grounds of sexual orientation and gender identity’ (Terry, member of the European Parliament). This includes ensuring interpreters are appropriately trained in terms of cultural competences and confidentiality.

NGOs working in this area also have training needs. We were told of the need for ‘equalities awareness within the LGBTI scene to improve migrant integration’ and that ‘LGBTI groups should receive immigration training’ (S8, NGO worker, UK). Conversely, ‘immigration support organisations and immigration solicitors should receive training to increase their LGBTI sensitivity’ (S8, NGO worker, UK). SOGI claimants and refugees themselves might benefit from some training, such as ‘general sensitisation workshops, where not only LGBT themes are treated, but also other forms of discrimination, such as sexism, ableism and, yes, racism’, as well as some knowledge about asylum law and policy (Louis, NGOvolunteer, Germany). As part of any training, organisations should develop and implement codes of conduct to ensure SOGI asylum claimants are treated respectfully and adequately (ORAM 2016a).

The quality of training, and the skills and experience of training providers is critical. SOGI asylum claimants and refugees are the main source of expertise here, and should be involved in training decision-makers and service providers to a far greater extent than they currently are, if at all. Other potential trainers include, for example, UNHCR officers, therapists and psychologists, SOGI support groups, NGO and academic researchers (Anne, lawyer, Germany; Barbara, lawyer, Germany; Cristina, UNHCR officer, Italy; Mara, lawyer, Italy; Qasim, decision-maker, UK). NGOs and support groups should give each other training and support, especially when new groups are being set up who may benefit from the experience of more established activists (Giulia, LGBTIQ+ group volunteer, Italy). Good quality training can be complemented by establishing telephone advice lines for everyday queries by lawyers, decision-makers and claimants (Barbara, lawyer, Germany), as well as networks of asylum supporters such as the SOGIESC network hosted by ILGA-Europe.Footnote 10

Frequency of training is another concern. Training courses need to be regularly reviewed and updated, particularly where there is a high staff turnover, with refresher training addressing knowledge and skills in particular areas (Vincenzo, LGBTIQ+ group volunteer, Italy; Cristina, UNHCR officer, Italy), in a form of continuous professional development programme. Both initial and refresher training should be compulsory (Jonathan, LGBTIQ+ group volunteer, Italy). This area of need was highlighted by public officials themselves:

We did do [have follow-up training on SOGI asylum], several years ago, but surprisingly and actually disappointingly we haven’t had any follow-up on that and that is no doubt going to be, should be one of your recommendations, if I could be so bold to mention that, because we haven’t had it for years. (…) And it would be very helpful because these are extremely sensitive and extremely complicated areas. (Bilal, presenting officer, UK)

Given the importance of training in the context of SOGI (and other forms of) asylum, this should be an area of public provision and not dependent on volunteer initiatives (Giulia, LGBTIQ+ group volunteer, Italy). Training is not only important to SOGI claimants and refugees, but also benefits decision-makers and service providers. Better awareness of SOGI and SOGI asylum will help them feel more confident about their work, in how they conduct themselves and in the quality of their decisions (Anne, lawyer, Germany; Kadir, NGO worker, Germany).

Crucially, training should encourage all actors in the asylum system, particularly decision-makers, to adopt an intersectional approach in their work, in line with our theoretical approach (Chap. 3):

[it] is absolutely important to look at the person as a whole, and to see this individual and to look at the different aspects of why they were forced to flee the country, what kind of discriminations they were facing, what kind of persecution they were facing, what kind of difficulties they had in their lives in general, and then on the basis of this to make a decision. (…) there can be multiple discriminations that come together, because of your sexual orientation, gender identity but also because of other aspects that actually force you to leave the country and then look for asylum somewhere else. So I think it is very important to have this more holistic image in order to take a decision in the end. (Terry, member of the European Parliament)

We look forward to a time when Europe’s asylum systems look at asylum claimants through such an intersectional, holistic lens.

7 Something to Look Forward To

At this final stage of these volumes, readers may feel that they have accompanied SOGI asylum claimants on a long and terrible journey – albeit one that is unimaginable to most of us. It is true that SOGI asylum claimants and refugees face ordeals that no one should undergo, but there is also scope for hope. This hope – and determination in the face of negative experiences – is patent in our participants’ testimonies and recommendations. We met an absolute and inspiring determination in many of our participants to protect the rights of SOGI minorities and a resistance to efforts to ‘homogenise society’ (Kadir, NGO worker, Germany). We also heard of individuals’ passionate commitment to improving asylum for those who followed them, so that their bad experiences became the basis for making improvements to help other people in a similar situation.

For this to happen, we need more material and human resources across the whole asylum system, from the initial reception stage through to social integration. A better-resourced system, would not only bring immediate benefits in protecting claimants’ human rights (Chap. 3), but would also benefit host societies both socially and economically.

Change also needs to occur in asylum law and policy, as highlighted throughout these volumes and specifically in the recommendations above. Not only are shortcomings in the SOGI asylum system visible, but there is also a striking contrast between the law and policy that applies to ‘domestic’ SOGI minorities and those that apply to SOGI asylum claimants. Such differential treatment is unwarranted and unacceptable from an equality and human rights perspective. On a positive note, ‘there is kind of like a stubbornness in certain countries for the better’ (Amanda, NGO worker, Brussels), for example on criminalisation of same-sex acts where currently only Italy recognises this as persecution in itself. On a more gloomy note, the scope for countries to be different ‘for the better’ may disappear if the current CEAS reform transforms the Qualification and Procedures Directives into Regulations, as EU regulations offer far less flexibility to EU member states in implementing EU standards. By limiting EU member states’ scope to set higher standards, this harmonisation effort entails a serious risk of lowering, rather than raising current standards (Ferreira et al. 2018, pp. 6–7; Peers 2017). The Brexit process may also have a negative impact on the asylum system for SOGI claimants in the UK and lead to fewer options for SOGI claimants elsewhere: ‘I think Brexit will make everything worse for migrants, for equality supporters, for refugees and asylum seekers. I think the question now is how to ride the current’ (S112, NGO volunteer, UK).

To counteract these risks at European level, we may look to the UN Global Compact for Safe, Orderly and Regular Migration (UN2018) and the UN Global Compact on Refugees (UNHCR2018). The Migration Compact will be monitored, unlike the Refugee Convention, but neither Compact includes any actionable commitments in relation to SOGI minorities or the causes of migration at global level (Apap 2019). Despite making no explicit reference to SOGI (Chap. 5), these instruments contain some promise for SOGI minorities owing to their multiple references to ‘gender’, ‘equality’ and ‘empowerment’. However, lacking any enforcement mechanism, they are unlikely to bring about any radical change in the current situation of SOGI – or any other – refugees. A far more promising approach in our view is to put the Refugee Convention and human rights treaties – and the values that underpin them – at the heart of Europe’s asylum systems, and read them jointly as the basis for raising standards of protection.

Yet, no injection of funding or change in statutes or policies will, in themselves, solve all the problems we have highlighted. A more fundamental and colossal shift in the social and political mind-set is required. We need to stop using asylum claimants and refugees as pawns in political debates:

refugees should not be misused as an election campaign theme. Because I honestly think that it’s an absurdity, people are always talking about [refugees] and they just do not speak for themselves. (…) And that’s such a nonsense. I mean, that’s in the Basic Law [constitution], what – what are we even discussing?! Alas, for me it’s just right-wing populist abuse of people who have come here in need and that is an absurdity. (Louis, NGOvolunteer, Germany)

The only way to achieve a better mind-set at an institutional and systemic level is to start with the individual and a humane concern for their experiences. We heard that ‘if you are not an LGBT person, you may not know how to put yourself [in their shoes]… that is, you need great empathy to put yourself in the shoes of a minority if you don’t belong to it’ (Anna, LGBTIQ+ group volunteer, Italy). So besides greater investment, improvements at a legal and policy level, and radical changes to the social and political mind-set, we need a great deal more empathy at an individual level and on the part of every single actor in the system. More empathy by all actors involved can impact positively on policy-making, decision-making and social practices, leading to a kinder asylum system.

It may seem simplistic to conclude with allusions to empathy and kindness, but in the words of Aldous Huxley, ‘[i]t’s a bit embarrassing to have been concerned with the human problem all one’s life and find at the end that one has no more to offer by way of advice than “try to be a little kinder”’ (quoted in Smith 1964). This does not mean any less a determination to improving the lives of SOGI asylum claimants and refugees. Indeed, in the words of Maya Angelou, ‘we may encounter many defeats, but we must not be defeated’ (Angelou 2009). We trust these volumes will make some contribution to the fight for a better world for SOGI claimants and refugees.