1 Introduction

Whereas in Chap. 5 we analysed pre-departure, journey and arrival experiences of SOGI claimants, we now turn our attention to the decision-making procedure. Whether they apply for asylum on arrival or later on, the initial screening is usually followed by a substantive interview. This is the essential moment when SOGI claimants have the opportunity to present their case. If the application is then refused, a judicial process is normally activated to appeal against the initial negative decision.

This chapter aims to analyse the most problematic aspects of these asylum procedures, as they emerged in our research as well as in the relatively limited available literature, and their impact on SOGI claims. These aspects include: the interview setting; the training and conduct of caseworkers, judges and other people working in this field, including interpreters; access to legal aid at all decision-making stages, including the appeal; and the quality of legal representation. The preparation of the asylum claim and – where applicable – of the appeal are also explored. In relation to all these aspects, the potential influence of bias of all actors involved in the asylum procedures is considered in detail.

This attempt to explore procedural issues, while leaving the substantial analysis of decisions on SOGI claims to the next chapter, takes into account the efforts already made at domestic level to integrate IRL and IHRL for setting up a fair asylum system and the positive influence of the EU’s asylum framework, which takes the Refugee Convention as the cornerstone of its Procedures Directive (Chap. 4; ILGA 2014). In this respect, the UK is the only country under comparison that has made a clear commitment to ‘continue (…) to ensure that the needs of all LGBT claimants are met in the asylum process, regardless of whether their claim was lodged on this basis’ (Government Equalities Office 2018, p. 17). However, this commitment is absent in the Government’s Progress Report published a year after it was made (Government Equalities Office 2019).

As a preliminary background for this analysis, we briefly outline the procedural aspects of the general asylum framework in force in each country analysed here. In Germany, the asylum decision-making procedure may be easily summarised through the following chart (Fig. 7):

Fig. 7
figure 1

Asylum decision-making procedure in Germany. (Source: ECRE, AIDA & Asyl und Migration 2019, p. 13)

As pointed out in Chap. 4, the administration of asylum is not homogeneous across Germany owing to its federal structure. The body responsible for the implementation of asylum procedures and refugee protection is the BAMF. As seen in Chap. 5, on arrival at Germany’s borders, people claiming asylum are distributed throughout the federal states with no consideration of SOGI or other grounds for persecution. Despite often being ‘severely exhausted [and] traumatised’ (Noah, NGO social worker), asylum claimants are suddenly immersed in an unfamiliar process, that may last for many months, or even years, from their first interview through to – in the case of a refusal and appeal – their hearing before a judge. In practice, there is no time limit for the BAMF reaching a decision on asylum applications, although within 6 months of a claim being lodged it needs to state when the decision is likely to be taken (ECRE, AIDA & Asyl und Migration 2019, p. 24). However, under paragraph 75 of the Code of Administrative Court Procedure,Footnote 1 if the BAMF does not produce a decision within 3 months of receiving an asylum claim, claimants can make a claim against the authorities’ failure to act.Footnote 2 In 2018, the average claim took approximately 8 months to process,Footnote 3 and this became almost 17 months for a final decision to be reached in cases where there was an appeal (ECRE, AIDA & Asyl und Migration 2019, pp. 20–21). The need to speed up the assessment of asylum claims is at the heart of the reform that, in 2017, introduced the so-called AnkER centres – a network of centres that gather all asylum-related stages within them (BAMF2019). While in these centres applications may be decided within a few days (Chaps. 4 and 8), this system has a particularly negative impact on the fairness and the quality of the asylum procedure in relation to all aspects explored in this chapter (ECRE, AIDA 2019).

In Italy, the procedure starts when the asylum application is registered at the police local headquarters (‘Questura’) using the ‘C3’ form (Chap. 5). As Roberto and Titti, decision-makers, emphasised, the way in which this form is completed may heavily influence the procedural arrangements adopted to assess a SOGI claim. Owing perhaps to the lack of a common language between those who fill the form (the Questura’s officers) and SOGI claimants, only relatively ‘visible’ causes of ‘vulnerability’ tend to be reported at this stage, such as pregnancy or underage status, but not SOGI. The submission of the C3 form is followed by an interview with the territorial commission after an indeterminate number of months, depending on the general flow of arrivals and number of pending applications to be processed. In recent years, territorial commissions have been under great pressure, to the point of being expected to carry out 12–15 main interviews each day (Filippo, senior judge). Although this means that each individual member of a territorial commission listens to four-five claimants in 1 day (Titti, decision-maker), raising doubts about the commission’s ability to fully engage with claimants’ testimonies, a claimant may still wait for more than a year before being interviewed. In the case of a refusal at this administrative stage, the right to appeal exists for all claimants, despite the fact that this right has been seriously undermined by the 2017 and 2018 reforms of the asylum legislation (Chap. 4 and Sect. 4.4, below; Palermo 2018). In order to speed up the assessment of asylum claims, these reforms introduced new procedures, including the concept of ‘safe country of origin’ and a new border procedure,Footnote 4 which provides for a nine-day examination of applications submitted at designated border areas or transit zones, or made by people coming from a ‘safe country of origin’. A good summary of the different procedures in place after these legislative amendments is provided by the following chart (Fig. 8):

Fig. 8
figure 2

Asylum decision-making procedure in Italy. (Source: ECRE, AIDA & ASGI 2019, p. 17)

Finally, in the UK, applications are processed through a number of routes. These include the regular route, in which claimants are dispersed across the country pending a decision by a regional office or the Home Office, and other specific procedures, such as in the case of people arriving from ‘safe countries’ or whose applications are clearly unfounded and for which there is no in-country appeal (so-called ‘acceleratedprocedures’; ECRE, AIDA & Refugee Council 2019). Perhaps to an even larger extent than in Germany and Italy, the time taken to process an asylum application varies greatly, although all asylum cases ‘have a deadline of 182 days between the moment that someone claims asylum until the moment they should receive a decision’ (Qasim, decision-maker).Footnote 5 Similarly, when the initial decision by the Home Office is a refusal, most claimants can appeal to the First Tier Tribunal. A judicial review – but only of the process, not the substance of the case – is sometimes a final resort before a case becomes Appeal Rights Exhausted (ARE). At this point a claimant may be able to submit a fresh claim if the Home Office accepts the existence of new evidence. This might apply in SOGI cases where, for example, a country of origin introduces new legislation criminalising homosexuality, as happened in Nigeria in 2014.Footnote 6 Again, a good summary of the asylum procedures in the UK is provided by ECRE (Fig. 9):

Fig. 9
figure 3

Asylum decision-making procedure in the UK. (Source: ECRE, AIDA & Refugee Council 2019, p. 13)

In all these countries, as well as across Europe, time and waiting are key issues for SOGI claimants. To give an example from our survey, 51% of respondents who lodged an appeal against a negative decision reported that they had waited more than 6 months for their hearing. As Joachim, an NGO worker in Germany, put it, timing ‘is very much a double-edged sword for LGBTI people’. While quicker procedures may have positive effects in terms of the well-being and mental health of SOGI claimants, a short process does not always correspond to a fair process in SOGI cases, considering the time needed to adequately prepare for the asylum interview (Sect. 6.2.1). Nevertheless, as Thomas, an NGO volunteer in Germany, explained in relation to the first period of the NGO’s activity between 2015 and 2016:

Waiting times were so insanely long between the first interview and the second. During this period, the refugees were doomed to inaction. And that is of course a real psychological problem. We have partly tried with work permits, but it was difficult.

For some SOGI claimants, the wait for a decision can feel unbearable. For example, Halim felt lucky to have been granted refugee status in Germany within less than a year. Nevertheless, he also felt that the whole period was ‘like a very long time (…) a waste of time and energy. (…) I lived that year with a feeling of uncertainty, not knowing what to expect, what’s going to happen next’. Susanna, a social worker in Italy, also reported the pain of a claimant who, after another postponement of a hearing, simply stated: ‘I cannot wait anymore, I do not know anymore what I shall do with my life’. The wait was particularly traumatic for those separated from their children and who needed a grant of asylum before their children reached adulthood in order to bring them to Europe through family reunification (Stephina, UK). Yet, for people like Bella, claiming asylum in Italy, 10 months waiting were tolerable because her accommodation centre had arranged training activities for all residents and she was able to learn Italian.

As many of our participants pointed out, SOGI claimants may need time to come out and reveal the real reasons for requesting asylum in Europe. For instance, Bakary (focus group no. 2, northern Italy) was asked to complete the C3 form only 4 days after arrival, when he was not ready to discuss the real reasons for having escaped his country of origin. Moreover, as Thomas (NGO volunteer, Germany) pointed out, shorter assessment periods may prevent a comprehensive preparation of the claimant ‘to just have a fair chance in the process’. In this respect, it is noticeable that the expected CEAS reform at EU level will not bring benefits for asylum claimants. In fact, as Jules, staff member at ILGA-Europe, highlighted, ‘the reform is now focused on accelerating procedures and making it quicker (…). But, in the cases of (…) LGBTI asylum seekers, this becomes extremely problematic especially considering that (…) a vast majority of asylum seekers who arrive are traumatised in some form or another’.

With this background and difficulties in mind, this chapter is structured as follows. Section 6.2 investigates how SOGI claimants are prepared for the main administrative interview and for judicialhearings, including access to legal aid. The quality of legal aid provision during this preparatory phase is also considered. Section 6.3 examines the procedures around the main interview, paying attention to the individual experiences of SOGI claimants, while attempting to identify any specific procedural arrangements that are in place to assess SOGI applications in these countries. Other than the interview setting and the conduct of the interview, this section also explores the selection and training of administrative decision-makers and, where possible, the existence and influence of any bias on their part. The same aspects are analysed in Sect. 6.4 in relation to the judicial adjudication of SOGI claims. Section 6.5 investigates the collection and use of Country of Origin Information (COI) in light of its fundamental role in the assessment of SOGI claims. Section 6.6 examines interpretation issues, transversal to both the administrative and judicialprocedures. Finally, Sect. 6.7 explores other procedures in place in the countries under comparison, namely acceleratedprocedures and Dublin transfers, in light of their particular impact on SOGI claims. While all sections highlight elements that may shape a fair asylum procedure for SOGI claimants, the chapter ends with some final remarks that take into account participants’ calls for an overall improvement of the procedural aspects in SOGI asylum.

2 The Preparation of Asylum Claims and Legal Aid

The preparation of SOGI claimants for the main interview and judicial hearing(s) was widely identified by our participants as a key aspect of a fair asylum procedure. According to Roberto, a decision-maker in Italy, whether SOGI claimants are briefed in reception centres about what an interview entails, and have discussed their stories with staff and written them down, can be the most influential factor in ensuring a positive RSD experience and outcome. In turn, Qasim, a decision-maker in the UK, explained that when claimants arrive ‘with lots of information, really professionally sort of organised information, their interviews [are] really, really easy as well and straightforward’. Yet, this kind of preparation is not standard practice for SOGI claimants, especially those who, for various reasons, are not accommodated by the state during the application or, even if the state takes charge of them, are held in reception centres that do not offer the necessary social or legal services.

2.1 The Preparation for the Main Interview and Judicial Hearing(s)

Despite the evident role it can play in a successful claim, preparation can be an issue in all countries under investigation. In Germany, while in some areas NGOs and support groups provide advice to SOGI claimants assessed through the regular procedure, their support is increasingly hampered by the creation of the AnkER centres (mainly in Bavaria). Claimants who are hosted in these centres receive all information on the asylum process by the BAMF. Independent advice is rarely available, not least because of the short time between arrival at the centre and the main interview. As our participants confirmed, the gathering of evidence is severely jeopardised by this system (Nina, legal advisor; Frank S., legal advisor). In such circumstances, claimants are often still in ‘flight mode’, unable to relax, concentrate or present their claim to the best of their ability, while no connections to local LGBTIQ+ community for advice and evidence can be established. Following the adoption of the 2019 reform (Chap. 4), no improvements are expected as this approach seems to apply more generally. In fact, the law now requires that the Federal Office provide voluntary and independent legal advice on the asylum procedure through group and individual counselling sessions, with the potential involvement of welfare organisations. This move has been already criticised, as it risks undermining the role of NGO counselling, which, if adequately provided, is often an essential part of a fair and efficient asylum procedure (ECRE, AIDA 2019).

In Italy, at least in principle, a combination of services in accommodation centres, which are publicly funded but provided by private entities, along with support by associations and LGBTIQ+ groups, is available to prepare SOGI claimants for their interview(s) and hearing(s). If we look at the situation on the ground, however, most participants, with few exceptions, reported that the quality of services provided in accommodation centres was unsatisfactory for different reasons. Some participants did have a positive experience, such as Alain A., who remembered ‘I had a meeting with my legal operator [advisor], we did the story, she wrote everything in Italian, we tried to read [the story]’. Yet, many other participants complained about the lack of an adequate number of legal advisors in these centres, or the inexperience of the staff running these centres in dealing with SOGI claims. According to Susanna, a social worker:

The management of reception centres was also given to private individuals or companies that were not previously involved in community work (…) and they want to make profit. So, they save money by not providing a psychologist, a cultural mediator [mediatore culturale], a lawyer [in] many facilities that are totally isolated from society.

Diego and Riccardo, LGBTIQ+ group volunteers, reported that the accommodation centres are often packed and in-house legal advisors, even if very competent, are not able to provide appropriate support to all claimants. As one of the participants in focus group no. 4 in northern Italy, Bubacan, explained: ‘the [reception] centre’s lawyer cannot but work superficially, cannot pay regular and specific attention to everyone, owing to the amount of people under their mandate’. Many SOGI claimants did not meet an advisor at all. In this respect, Cedric (focus group no. 5, southern Italy) remembered that ‘they [the managers of the reception centre] can tell you that lawyers are available but you never see them’, whereas Fred (focus group no. 5, southern Italy) simply affirmed ‘[m]y camp did not even have a lawyer to tell my story’. This is also why associations and support groups in Italy play a central role at this stage. It is no coincidence that the number of SOGI asylum support groups has rapidly increased between 2016 and 2019 (Il Grande Colibri 2019). Thus, Antonella, who leads a support group that offers psychological support, legal advice and cultural mediation, recalled that some claimants expressly asked her to carry out simulations of the main interview, in order to test answers to the most recurrent questions. This is also why a significant part of her support aims to train claimants to understand ‘decision-makers’ own mental schemes’ (Antonella, LGBTIQ+ group volunteer). As an example, she explained that a lot of effort is placed on remembering dates and places and on reporting all facts without contradictions and through a ‘European lens’. This voluntary support is even more fundamental when SOGI claimants are not hosted in reception centres. As Jonathan, an LGBTIQ+ group volunteer, pointed out, in these situations associations support SOGI claimants during the entire procedure, from the submission of the application and the request of a permit to stay, to the preparation of the narrative to be articulated during the interview and the collection of evidence.

Equally, in the UK, voluntary and non-governmental organisations (NGOs) play a fundamental role. Many individuals seek information, advice and support from voluntary organisations, ranging from larger or national ones, such as Refugee Action, to local ones supporting particular refugee communities or working in particular areas, such as the Somali Women’s Support Group or Southwark Refugee Communities Forum. SOGI organisations also play an important role and, again, these range from national – for instance, Stonewall, UKLGIG and Stonewall Cymru – to local and grassroots organisations like Brighton & Hove LGBT Switchboard and the Lesbian Immigration Support Group in Manchester. These have been complemented by a number of asylum support groups set up by SOGI claimants, such as African Rainbow Family in Manchester, Out and Proud in London, the LASS group in Sheffield or Reach Out in Leeds (as reported by Janelle). Research dating as far back as 2009 pointed out that SOGI claimants rely mostly upon personal relationships or social networks in the absence of more traditional support from family and ethnic networks (Bell and Hansen 2009, p. 43), therefore it is unsurprising that, for many participants, these organisations and support groups provide more than procedural and legal advice.

The complexity of this preparatory work across all countries under comparison, extending well beyond simply giving information about the asylum process, was well expressed by Noah (NGO social worker, Germany). After reporting that a significant number of people arrive totally unprepared at the main interview, he highlighted the need to establish a relationship of trust as a precondition for a successful preparation:

I have to take away the fear from the people, reduce the boundaries of shame, establish a bond of trust that enables them to express themselves on things that may have traumatised them in their lives, which still move them today.

Nonetheless, much of the time this dedication is absent in the asylum system. As Bakary (focus group no. 2, northern Italy) recalled:

When I arrived, my friend helped me to write down my story in order to fill the C3 form, he told me how to proceed. (…) it’s the cooperative [reception centre] that should (…) support you in improving the narrative of your personal account, because we come, we arrive here, after facing several difficulties; it is clear that you are not able to express yourself, the cooperative must look for someone who can help improving how to present your story (…) rather than simply submitting your story as you can write.

In the face of this lack of support in preparing claimants for the interview, individuals are likely to look to other claimants for advice as the only available option. However, being advised by other claimants may backfire in being perceived negatively by decision-makers. As Halim, claiming asylum in Germany, where he works for an NGO, pointed out:

[T]he interviewer (…) asked him [Halim’s client] who gave advice about asylum and he mentioned that he got counselling from people including myself about how the process goes. I think people have the right to get counselling and the information about the asylum process. Then he considered this a manipulation of asylum, “Asylbetrug” he said, and it was rejected.

In some circumstances, the lack of support services and failure to provide accurate information about asylum procedures may result in some claimants feeling insecure to the point of fabricating or embellishing elements of their narrative. The peculiar submission of Abdoul’s (focus group no. 2, northern Italy) claim is illustrative. As he put it:

a person told me to use a story of gays. Ah! Since I was ashamed to declare who I really was, he did not know [that I was actually gay]. Hence, I was obliged to write down that story (…) without being forced to disclose my real identity.

In light of the central role they play in all three countries for the preparation of SOGI claimants, NGOs and support groups are often, at least indirectly and informally, involved in the decision-making process in a number of ways.

A primary way is certainly the provision of supportive statements. While the value attributed by decision-makers to evidence provided by third parties is examined in Chap. 7, it is nonetheless important to highlight here how participants justified this proactive intervention of associations and support groups during the preparation of administrative interviews and judicialhearings. Diego and Riccardo, LGBTIQ+ group volunteers in Italy, explained that their involvement in the asylum procedure became necessary due to the assumption that claimants needed to prove their SOGI. In this respect, their project – called ‘Immigrazioni e Omosessualità’ (IO – Immigration and Homosexuality) – made a clear choice: alongside providing a safe space where claimants could learn Italian and gain self-confidence before sharing their stories, IO supports them by issuing a statement on their involvement in the project’s activities. As Diego emphasised, decision-makers will never find in these statements ‘what [claimants] like [in terms of partners], [but] these simply describe the life of a person’, in light of the experiences which claimants shared with the project’s volunteers. Significantly, according to Diego, once these statements are produced, decision-makers’ questioning during the asylum interview is often more pertinent and less intrusive of claimants’ privacy. Other support groups adopt a different approach. For example, Zouhair, claiming asylum in Germany and who now works for an NGO, affirmed that his group usually sends letters where it is written that ‘he or she… is gay or lesbian’.

Another fundamental aspect of the role of support groups was shared by Valentina, a social worker in a trans association in Italy. Besides discussing the testimony with a claimant before the main interview, her association – MIT – collects information on the socio-cultural environment of the relevant country of origin, as well as on the rights granted to transgender people in Italy. This information is then made available to the decision-makers. Perfectly in line with a human rights approach to asylum (Chap. 3), she stressed that decision-makers may ignore these rights, for example, the law allowing gender reassignment, but should be aware of the availability of appropriate health services and legal guarantees in force in Italy to adopt informed decisions. Considering that all asylum applications followed by MIT, including the case of a claimant from Nigeria who recently started the male-to-female (MtF) transition process in Italy, have been successful, this approach certainly helps to fill the existing gap in the training of decision-makers on SOGI-related rights (Sect. 6.2.3).

The lack of training, coupled with the (still) widespread stereotypes of SOGI minorities in the decision-making process (Sect. 7.5 of Chap. 7), may prompt other associations involved in the preparation of SOGI claimants to encourage claimants to ‘fit’ specific categories in order to maximise their chances of receiving a positive decision. Jonathan, an LGBTIQ+ group volunteer in Italy, provided a powerful example connected to the ‘invisibility’ of bisexuality in asylum decisions (Rehaag 2009): ‘More than once I suggested to avoid bisexuality and to say they’re gay’. Although conforming to certain Western-informed categories may indeed increase the chances of a successful application, it also undermines the agency of SOGI claimants. Despite the good intentions behind this type of instructions, claimants may disapprove of such strategies. William, who claimed asylum in Germany, reacted to a suggestion aimed at boosting his gay appearance for the interview as follows: ‘you cannot make someone who has been one year in Germany like someone who has grown [up] seeing gay, or someone who has grown [up] with gays in a gay lifestyle. You cannot change in one year, no no no no’. In so doing, NGOs and support groups risk reproducing decision-makers’ disputable stereotypical assumptions on SOGI minorities (McGuirk 2018), rather than trying to eradicate them.

During this preparatory period, members of support groups, as well as reception centre staff if they are appropriately trained, may shape the procedural aspects of SOGI claims’ assessment. This outcome can be achieved indirectly, by providing information to SOGI claimants about their rights, but also directly, by communicating with relevant decision-makers in order to request SOGI-friendly arrangements. Giulia, an LGBTIQ+ group volunteer in Italy, explained that she would inform claimants that they are entitled by law to change interpreters if they perceive biased or stereotyping behaviour, and that they should sign the record of the interview only after having had it carefully translated. Nonetheless, as she explained and other participants confirmed, many claimants get in touch with support groups only after a first refusal by the administrative bodies, once these basic rights have already been ignored. Moreover, in focus group no. 5 in southern Italy, it emerged that even those who are aware of these rights may not ‘dare’ to invoke them owing to the power imbalance in the interview setting. In Cedric’s own terms, ‘I considered that, maybe, if I contested, I could be seen as a rebel, thus I agreed with everything they did’. In contrast, Dev recalled: ‘We redid my transcript, she [the interviewer] said to be in a rush but I said “no, we are going to spend all the time required to redo it” and so we did’. That is why, Alain A., a refugee in Italy, stressed the importance of also being ‘psychologically prepared’ to face, among other things, the presence of an interpreter with a similar cultural background (Sect. 6.6).

In order to address some of these issues, Zouhair explained that, before the interview takes place, his group informs relevant asylum authorities in Germany about the need to secure a ‘sensitive interpreter’. The same approach is adopted in some areas of Italy, where staff in reception centres and support groups developed the habit of informally giving the territorial commissions advance warning of the upcoming interview of a person claiming asylum on SOGI grounds (Chiara, NGO worker; Cristina, UNHCR officer). In some circumstances, this preliminary communication is also necessary to speed up the process. As Diego (LGBTIQ+ group volunteer) explained, a request to bring forward the interview date was submitted to the relevant territorial commission on behalf of a lesbian claimant from Cameroon who, due to her appearance, was continuously discriminated against by other female guests in their accommodation centre. Bringing forward the interview was an effective way to limit the time she spent in that reception centre before a final decision on her application was taken.

Finally, despite preparatory efforts, some volunteers or staff of reception centres reported the importance of accompanying SOGI claimants on the day of their interview to support them psychologically. Yet, this is not always permitted except in exceptional individual circumstances (for instance, when the claimant is an unaccompanied child, their guardian may assist). Mara, a lawyer in Italy, explained that, owing to the particular situation of ‘vulnerability’ of a gay claimant from Pakistan, she asked and obtained authorisation for a member of the support group to attend his main interview before the territorial commission. Considering the power dynamics during the interview process, this simple but fundamental entitlement emerged as one of the possible recommendations for rendering the asylum system for SOGI claimants fairer (for instance, Thomas, NGO volunteer, Germany; Daniele, decision-maker, Italy; Giuseppe, lawyer, Italy). The empowering effect of such a measure is already visible at the appeal stage, where volunteers and support groups assist SOGI claimants on the day of tribunal hearings (for instance, Court observation, Hesse, 2018; Tribunal observation, northern Italy, 2018).

According to Damiano, a lawyer in Italy, the impact of all this ‘laborious’ voluntary work is shown by the high percentage of recognition of SOGI claims at administrative level during recent years. Based on the experiences of SOGI claimants, it is clear that NGOs and support groups also play a significant role in the preparation of judicialhearings, especially in relation to those who have their first contact with LGBTIQ+ associations only after the administrative refusal of their asylum application (for instance, Odosa, Italy). According to Antonella, an LGBTIQ+ support group volunteer in Italy, when SOGI claimants get in contact with associations only after filing a judicial appeal, their preparatory work consists of understanding the reasons for the refusal and drafting appropriate answers to the most problematic points. Equally, Noah, NGO social worker (Germany), explained that, during the 6–12 months before the hearing:

[They] collect (…) write down, capture in detail (…) which things were asked in the interview, which were not. (…) That means [that] you have a lot of preparation, [especially because] it depends more on the credibility. People who have fled or migrated here do not have the evidence, unless they have physical scars and a credible narration.

In the UK, the support at his stage seems to be more encompassing. Organisations such as Asylum Aid, Refugee Action and the Refugee Council provide a range of resources to help individuals navigate the asylum system (Asylum Aid 2018). In this context, Denise and Umar, legal advisors, explained that, besides providing letters of support, their preparatory work is focused on the need to demonstrate that SOGI claimants have a general support network, attend meetings and take part in demonstrations in the UK, such as Pride. This also includes the identification of appropriate witnesses, although in their view some judges look at witnesses positively, while others do not: ‘we know with a couple of judges that [a witness] has had an effect’ (Denise and Umar, legal advisors). The preparatory work also aims to address issues that, without the adoption of an intersectional approach (Chap. 3), may not seem reconcilable in terms of the relationship between religion and sexual orientation. As Debbie, an NGO worker, explained ‘we try now to help people to verbalise, to give people sort of arguments to verbalise why it can be reconciled. But it did seem to be something that was used [by Home Office interviewers] to just… to shake them [claimants] up’. However, for a range of reasons, this initial preparation of the case is not always carried out as it should. For example, Irma, who claimed asylum in the UK, experienced a number of problems at all stages of her application and the appeal process: some of her paperwork went missing, her solicitor went on holiday immediately before the hearing date, and an expert report was submitted late. Irma also reported that on the day of the hearing the barrister found the material prepared by an NGO ‘no[t] good’. As she recalled, she was ‘really angry with them’, taking into account that her case was a ‘good one’ and should not have been rejected again.

Irrespective of the preparatory activities of NGOs and support groups, it seems that during the appeal procedure claimants become more confident. As Giovanna, a lawyer in Italy, put it, during the appeal ‘claimants tend to have a chance to talk, to explain their stories after having had the time to elaborate them [and] to become familiar with the [surrounding] society’. In fact, SOGI claims fail at first because people are still often in hiding and/or do not have evidence. By the time they get to the appeal, they may be more confident and provided with better evidence. Consequently, preparation at this stage is often accompanied by a greater willingness and ability on the part of SOGI claimants to fight for their rights. Perhaps it is also this increased awareness that explains why relationships with lawyers, who sometimes tend to make decisions about aspects of the claim without consulting their clients (pointed out, among others, by Susanna, social worker, Italy), may be particularly problematic during the appeal, as the next section explores.

2.2 Access to, and Quality of, Legal Representation

Our fieldwork confirmed that asylum claimants experience serious difficulties in accessing legal representation across Europe. Only 54% of claimants responding to our survey had a legal advisor or representation during the asylum procedure. This data is consistent with the different provisions and practices that emerged in our three country case studies.

In Germany no legal aid is available for initial claims, only for the appeal stage. According to Evelyne and Anne, lawyers in Germany, legal advice is nonetheless provided by advice centres, volunteers and non-governmental institutions like Caritas. As Ibrahim, a claimant now working for an NGO, confirmed, in some federal states the financial support for legal advisors has been reduced, leading them to work fewer hours than in the past. This general framework causes financial hardship to claimants, who cannot consequently ensure access to adequate representation in the early stages of their asylum claim.

By contrast, in Italy, while as a general rule legal aid is not granted during the administrative procedure, asylum claimants who are hosted in accommodation centres are entitled to receive legal assistance from the staff. However, often these staff do not have any legal training and, according to some claimants, the limited legal assistance provided in these centres is sometimes offered against payment. Bakary (focus group no. 2, northern Italy), for instance, told us that ‘yes, you need to pay 150 Euros, so every month when they give you the pocket money, you give back 15 Euros’. In contrast, during the appeal stage, all claimants with insufficient financial resources may apply for, and usually receive, state legal support (so-called ‘gratuito patrocinio’).

Free legal assistance is available in the UK to people claiming asylum who cannot meet the costs of representation. Yet, in practice, access to good legal advice is difficult for many of them. Problems arise because of the low level of funding available to solicitors working under a legal aid contract and because there are not enough high quality solicitors with legal aid contracts to meet demand. It seems that few claimants receive legal advice prior to their screening interview.Footnote 7 Since 2014, the Home Office has funded Migrant Help to provide asylum support, but this no longer includes advocacy either in relation to decision-making or appeal stages (ECRE & Refugee Council 2016, p. 54).

Irrespective of access to legal aid, a general problem arises from the fact that asylum systems do not always allow lawyers to be present during the main interview (also called administrative or substantive interview in some countries), unless authorised on a case-by-case basis, as was reported in Italy. Lawyers are instead entitled to attend the substantive interview in Germany and the UK, where such attendance is however not usually covered by legal aid, thus in practice lawyers only tend to attend if privately funded. Even when they do attend, the lawyer’s role in the interview may be limited. Yet, as Giuseppe, a lawyer in Italy, explained, the best thing for all asylum claimants would be to have the lawyer with them during their main interview. In fact, lawyers are in the best position to intervene when answers are reported or transcribed inaccurately, strengthen claimants’ confidence, and even stop the interviewer in case of inappropriate questions (something reiterated by Damiano, lawyer, Italy; Diana, Germany; Thomas, NGO volunteer, Germany; and Sofia and Emma, NGO workers, Germany). The case of Alphaeus, who claimed asylum in Germany, is illustrative:

In my big interview [I was] mentioning the date of when my mum died. The interviewer (…) instead of 1996, he wrote 2006. (…) I just thank God that my lawyer was there. (…) He told them “No, this is not real. See what you’ve done here”. So he managed to correct them.

The positive effect of having legal assistance is even more evident when we look at the active role played by certain lawyers at judicialhearings. For instance, during a tribunal observation in northern Italy in 2018, the lawyer intervened to challenge those questions that were perceived (also by the claimant) as irrelevant in the context of his overall story, while trying to direct the judge’s attention towards his LGBTIQ+ activism. The need for a change was therefore widely shared in this matter. Consequently, Allan, a lawyer in the UK, affirmed in light of his multi-year experience that ‘having good legal representation from the outset does make a huge difference (…) no question’.

It should also be recognised that, in addition to the appeal, sometimes lawyers’ support is essential in other areas of SOGI asylum, like accommodation. For example, only the intervention of a lawyer allowed Ken, who claimed asylum in Italy, to move out of the reception centre where he was continuously discriminated against by other asylum claimants (Chap. 8). In the UK, the Asylum SupportAppeals Project fulfils this role, by helping people claiming asylum to obtain housing and welfare support, including by providing free representation at the First Tier Tribunal.Footnote 8

Overall, this shortage of free legal provision is unsurprising given that, under EU law, the obligation to grant legal aid relates only to the appeal stage (Article 20 of the Procedures Directive). Yet, even when legal aid is available and legal representation granted, our data shows that, despite some important exceptions consisting of highly qualified lawyers and legal advisors, the quality of representation does not always reach adequate standards across the three countries under comparison.

First, besides a lack of contact between lawyers and claimants in preparation of the initial claim, there is a clear problem in relation to the preparation of the appeal hearing. Very limited contact between claimants and lawyers was reported before the hearings. Betty (focus group no. 3, Bavaria, Germany), for example, told us that ‘it is one year and one month, but I’ve never got anything like a paper from my lawyer’. In other cases, claimants were neglected, as, for instance, Zaro (UK): ‘weekly we try to call [the solicitor], trying to meet with her, she ignoring us’. During a tribunal observation in northern Italy in 2018, the lawyer asked the SOGICA researcher to contact the claimant, because the lawyer had never called them before, all contacts having previously been managed by the reception centre’s staff. A similar disinterest emerged during other judicialhearings we observed (for instance, Court observation, Hesse, Germany, 2018), including the failure to ensure preliminary contact with tribunals as requested by claimants themselves (for instance, Court observation, Hesse, Germany, 2018, when the lawyer did not ask for a joint hearing of a couple, despite her clients’ express request). Other observations also showed a lack of preparation by lawyers and, often, a total reliance on support groups’ preparation of the claim (for instance, Court observation, Hesse, Germany, 2018; Tribunal observation, northern Italy, 2018).

Where, instead, there is good engagement between claimants and their lawyers, a process of empowerment may take place. For instance, Buba, an unaccompanied child in Italy, recalled that he only obtained free legal assistance after the refusal of his asylum application by the administrative body, which did not determine that he was underage until a volunteer discovered it. Together with his legal representative, Buba analysed the negative decision and collected appropriate evidence, including medical reports and pictures of his scars, and was eventually able to cogently present his claim before the judge. In fact, as Sean, a lawyer in the UK, pointed out, for legal representation to be of good quality it is essential to spend a considerable amount of time together with the claimant:

[For] LGBT cases (…) it might take you five hours just to build the relationship with the client. Ten hours after that to take a detailed statement, four hours after that to go through the statement and look at difficulties and contradictions and gaps, and to bring some experience to that (…) You can’t ask [some kind of] question[s] on hour one or even on day six, but weeks later (…). So it is about exploring and spending the time that you need to get as much as you think you need.

Nazarena, a lawyer in Italy, also confirmed that, by following this approach, SOGI claimants may articulate experiences that they were not able to share before, including the real reason for fleeing their country of origin when not disclosed any earlier. Sean asserted as well that to ‘strike a relationship’ one needs to also be gender-aware, something that tallies with our intersectional and feminist approach (Chap. 3). That is why Sean always asks female clients whether they are comfortable with talking to a man, giving them the option of having a female advisor instead.

Nonetheless, it is true that, in some cases, despite the willingness and the availability of lawyers, SOGI claimants find it difficult to ‘open up’. In this respect, the cooperation with NGOs or staff in reception centres remains fundamental. The case of a lesbian claimant retold by Celeste, a social worker in Italy, is illustrative. The claimant was convinced that she had to talk only about the sexual aspects of her relationships in line with her understanding of being lesbian: ‘She always referred to herself by using the expression “I do lesbian”, not “I am” lesbian’. Despite the availability and the efforts of the lawyer, only the intervention of Celeste changed the situation. So, during a long talk between them before the hearing, Celeste explained again why the claimant’s initial claim was refused and what questions were to be expected by the judge. It was only thanks to the clarifications provided about the meaning of ‘being in a relationship’ that the claimant was eventually able to argue effectively before the judge. In other words, a cultural mediation process was necessary to build a case that would otherwise have been unsuccessful. Yet, it is noticeable that this approach may nonetheless reinforce the recognition of refugee status largely on a Western identity basis, as further explored in Chap. 7, in contrast with the queer perspective we advocate (Chap. 3).

Second, the lack of effective communication between legal representatives and claimants was a widespread point of concern. For example, Stephina, a claimant in the UK, told us that when she went to court for her hearing, she could not speak: ‘I didn’t, I wasn’t given a chance to speak and explain some things for myself (…) I followed what my lawyer said… “you say this, you don’t say that”, so I went with the mentality of “yes sir”, he said this and he said not this’. Maria (focus group no. 5, Nottingham, UK) was asked by her lawyer not to mention sexuality as the real ground for requesting asylum, despite the negative implications she feared for the assessment of her claim. Something worse happened to a claimant in the UK, who was involved in focus group no. 3 in London, who discovered after a period of 2 years that her fresh claim, which was supposed to have been submitted, had never been filed: ‘Over two years I have been in lie (…). When we phoned him, I went to his office, he said “oh, I don’t think I believe you, you were a lesbian”’. For people who have used their own initiative to bring about changes in their lives, the requirement to hand over control to advocates can be difficult. In this respect, Meggs (UK) pointed out: ‘Maybe it is one of the mistakes that I did, I didn’t kind of do my own research and find out what is really needed, what are they going to ask or what kind of evidence they really required’. In some cases, however, what might be perceived as a lack of energy in pursuing a claim may be motivated by other legitimate reasons. In this respect, the experience of Deirdre, a lawyer in the UK, is enlightening:

Sometimes I would say to a client, “I am not necessarily sure you are ready for this interview and this interview is the most important thing. I think you should go to your GP, I think you should get referred to mental health services, I think we should say to the Home Office, you need a bit more time”.

Third, the substantial amount of money that good legal representation costs, mainly in Germany and the UK, is problematic, especially in light of the lack of work opportunities for asylum claimants (Chap. 9). Fees may even be charged for initial consultations (Marlen, legal advisor, Germany), although some lawyers stressed that charging for initial advice can help claimants save ‘a lot of money in the long run by being properly advised on the merits’, rather than being more concerned ‘by the offer of “free” consultations where applicants are then advised to go ahead with expensive poor claims’ (Barry, lawyer). Some participants also believed they needed to pay a private lawyer to improve their chances of securing international protection during the administrative process. For instance, Diana (Germany) had paid 700 Euros for a lawyer in the belief that ‘it would be easier if you have someone like that (…). That was not a social lawyer or refugee advocate’. For some claimants, a private lawyer remained essential even when reception facilities offered legal support. According to Nice Guy (focus group no. 1, northern Italy):

There’s a difference (…). If you are using a camp lawyer, it’s free. If you are using your personal lawyer, you have to pay (…) by yourself. But most of the time, the personal lawyerworks better than the camp’s lawyer.

This perception puts many SOGI claimants under serious financial pressure. In Germany, a questionable system is in place: claimants can apply for legal aid to pay for a lawyer, but legal aid is granted by the same judge who has to decide on the appeal itself, depending on how that judge rates the chances of success of the appeal (ECRE, AIDA & Asyl und Migration 2019, p. 29). Not surprisingly, Barbara, a lawyer, affirmed: ‘There was a time, I used to feel that legal aid, if I get that, I’ve already won’. Far from being compliant with the right to access to a fair asylum procedure (for example, Article 13 ECHR), Thomas, an NGO volunteer, explained that, in practice, claimants need to pre-finance their legal representatives and are only reimbursed in case of success. As further confirmed by Halim, who claimed asylum and worked for an NGO in Germany, the money to anticipate the payment of legal support must come from claimants’ monthly welfare income, which is intended to cover basic expenses, including food. This disproportional burden is clear in Tina’s account: ‘Every month I give 50 Euros from the money government pays me. They pay me 100 Euros every month’. The involvement of LGBTIQ+ support groups sometimes addresses this problem by co-financing initial fees (Sofia and Emma, NGO workers, mentioned the Rainbow Foundation in this respect), which may amount to up to 500 Euros (Noah, NGO social worker).

In Italy, where almost all participants had obtained legal aid to cover their representation by a lawyer, cases of misconduct emerged. Although they had already been paid by the state, we were told of some lawyers asking for additional money, which claimants are unlikely to have. Disturbingly, despite these fees, which may amount to 600 Euros for a first appointment according to Jonathan, an LGBTIQ+ group volunteer, most lawyers do not have specific competences in SOGI claims, as reported to us by Cristina (UNHCR officer), among others. The case of Franco, who was in touch with a lawyer for 2 years and was never clearly told why his application was rejected, is illustrative:

I don’t know the woman [lawyer]. Someone pushed me. I said no, I don’t have choice, before I lose they said 30 days [to appeal]. I pay a lot. She said 550 euro. (…) Yes, I make “campagna” [working in farms]. She never tell me to go to court. (…) She always tell me “Non preoccupare” [do not worry], “Io devo parlare con il giudice” [I have to talk with the judge]. [On the day of the hearing] The police [stopped me], but lawyer don’t want to come down (…). After that (…) negative [RSD outcome]. (…) She asked for the rest of the money. I said “no”.

The cost of legal advice and representation was also a concern in the UK. Retaining a good private lawyer was expensive, especially when SOGI claimants were not supported by specific entities – for instance, Ibrahim A. was supported by Amnesty International and by Freedom House, through a programme called Dignity for All. As Ali explained: ‘even after I got the refugee status I kept paying her by month, [but] it was worth it at the end because she did a hard job (…). I think at some stage we were meeting every week’. For Amber, who was pushed to choose a specific firm for its expertise with Malaysian claimants, legal fees amounted to GBP 3,000. They could not afford to pay the entire amount, until that firm decided to take their case pro bono. The preparation of their appeal was indeed meticulous:

I had to come to the office about once a month or every two weeks or so to sit down and talk to my lawyer about my background. After we’re done with the statement, I focused on documenting all the articles and pictures of what was asked by my lawyer after the statement completion as supplementary evidence. (…) It was very detailed and long, and it took me months to complete.

In comparison to others participants, Amber’s and Ali’s experiences of legal representation are, however, uncommon. According to Wendy and Justina, NGO workers in the UK, many solicitors are not prepared in this area and provide poor advice for high fees. In this respect, Seth, another NGO worker in the UK, summarised what happens to most claimants: ‘Quite often, they have spent all their money on a claim that is going to go nowhere, and then when they do finally get the right advice, they have got no money left’. Overall, the experience in the UK seems to suggest that the quality of representation is not determined by whether the client is legally aided or paying privately. As Barry, a lawyer, put it: ‘Some legal aid lawyers provide excellent advice, some provide poor representation. It is the same for those who are paid privately’. The consequences of this state-of-affairs are well described by Jayne, who was not lucky enough to meet an experienced lawyer:

I remember first thing when I walked into the interview room, I was asked if I had brought a witness statement, and I was like “what is that?” (laughs). I had no clue. (…) The solicitor (…) just helped me to give me the numbers to call the Home Office and then he just left. [I] wanted just to have an idea of what I should expect, just to prepare myself psychologically, but… he just said “oh, they will just interview you, about your life generally”.

From the perspective of those working on legal aid contracts, it is noticeable that funding is increasingly inadequate as a result of successive cuts to legal aid that have indirectly affected asylum work. As Sean, a lawyer, told us:

We set up [the law firm] in 2003, predominantly doing legal aid work. Then when the cuts came in, we had to take on private work, to support ourselves and also the legal aid rates were cut… So, in reality, doing legal aid work is not really viable financially.

Financial issues may also prevent the collection of appropriate evidence on claimants’ countries of origin. As Sean also explained:

If you apply to the Legal Aid Agency, say, for GBP1,100 to buy an expert report on the… treatment of LGBT victims of hate crime in [the] Gambia over the last 12 months, the Legal Aid Agency will say “No”, because we don’t even know that it is an issue in your case yet. (…) So, it is very difficult to get funding for specific expert evidence in advance. (…) A lot of the country-based reporting that we do get evidence of is after the refusal, because the Legal Aid Agency will fund it.

A similar situation applies to psychiatric and medical reports providing evidence of torture, as Deirdre, a lawyer, explained:

So the way that legal aid works is that until something is in dispute, you can’t put forward expert evidence. So I couldn’t get an expert psychiatric report on a client until after the Home Office decision letter, because the legal aid agency would say to me “but you don’t know that the Home Office don’t believe her”.

All the above contributes to the likelihood that claimants in the UK will be refused at the initial decision-making phase on evidentiary grounds but may then be successful on appeal when they have been able to commission corroborating reports. Strikingly, some decision-makers are not aware of these dynamics. For instance, Adrian, a judge in the UK, told us that ‘I am a strong believer in legal aid… I haven’t noticed a falloff in quality as a result [of cuts to legal aid] by and large’.

Fourth, nationality can be relevant to the selection or provision of solicitors. When the lawyers available are from the same ethnic or religious community, there may be negative implications for claimants who are not (yet) open about their SOGI. As previous research has reported, sometimes lawyers are ‘arranged through members of the applicant’s extended family, so gay applicants that are supported by their community are unlikely to be able to come out to their lawyer’ (Miles 2010, p. 30). This general difficulty was confirmed, among others, by Ashley, a psychotherapist in the UK:

After their initial experiences, maybe at the Home Office interview (…) of interpreters (…), their fears about information getting back to people in their community or back home [prevent] at their initial meetings with their lawyers [the] disclosure around sexuality. [Therefore] that part of the story is delayed and not in their initial claims and that adds to the issue of credibility.

From the discussion above, overall access by SOGI claimants to legal representation of high quality seems therefore difficult across Germany, Italy and the UK, especially when legal aid is not effectively granted to cover the time needed to prepare such complex cases. When high quality representation is accessible instead, even good lawyers may find it difficult to rectify initial wrong advice at a later stage of the procedure. Bearing in mind this general state of affairs, a wide range of unethical conduct and working methods were described by our participants. Giulia, an LGBTIQ+ volunteer in Italy, shared the case of a lawyer who forgot to submit the appeal on time with very negative consequences for the claimant, who had to leave the accommodation centre and, only after a while, was able to start a fresh claim. The case of Amadin, who claimed asylum in the UK, is even more concerning:

So my lawyer make a mistake (…) because there is a confusion between Benin City who is a city in Nigeria and the Benin country. (…) The lawyer got some evidence online, where he put, I don’t know what he put because he no tell me what he was putting, so I did not know what he knew. (…) So my lawyer was not ready to defend the country issue. (…) So now, the lawyer dropped me and I get a new lawyer now, who are preparing the case and they are doing a country report.

In other cases, lawyers failed to inform claimants about the day of the hearing (as reported by Juliet, Germany) or did not follow up the claim, despite having been already paid by a support group (Louis, NGOvolunteer, Germany). Giulio, an LGBTIQ+ group volunteer in Italy, gave us another worrying example of the poor quality of some legal representation:

[Asylum appeals] are considered easy ones (…) they just copy and paste, submit the same documents. [In SOGI claims] they find also difficult to understand the difference between being persecuted for being gay or for being perceived as gay… (…) So, in the appeal form, they simply write “gay claimant” although he might not be gay (…). The judge will then see a contradiction with negative consequences for the claimant.

Lawyers themselves are critical of their colleagues’ work. According to Mara, a lawyer in Italy, lawyers who submit an LGBTIQ+ association membership card as part of their documentation to the judge damage the claimant’s case because they are indirectly suggesting that homosexuality needs to be proved (Chap. 7). Similarly questionable advice was reported in the UK. Sean, a lawyer, recalled the case of a lesbian claimant:

The number of errors that she suffered at the hands of her previous solicitors were significant such as: not being advised why witnesses might be necessary at a hearing; not having the witness statements prepared for her witnesses in advance of the hearing; getting to court and then her star witness can’t make it, and the advisor from the same [law firm] says “we don’t want an adjournment, we are just going to press on”. Wow – that is basic, basic stuff! And now she finds herself a year, six months on, living off nothing, separated from her son, and her story is compelling.

The worst experiences were perhaps those where claimants were unable to find a lawyer to represent them and invest time in their case (Joyce, focus group no. 5, Nottingham, UK, among others). As Leon, LGBTIQ+ community project staff member in Germany, told us, ‘[w]e have many cases where several of the lawyers (…) tell us that, from their point of view, this is hopeless’. As Meggs (UK) put it:

I was told we are supposed to appeal again that [but] he said, “oh no, we don’t have a case. (…) Just go and find new evidence, if you find it, come back to me”, and I didn’t know what new evidence would that be. Don’t know what is fresh claim or what I have to look for, yes. So if we didn’t have like the kind of organisation First Wednesday, Lesbian Immigration Support Group, where you meet and they tell you like this is how it is done, I wouldn’t even know until today. Because I didn’t know what I was looking for.

In these cases, the claimant’s only option was to lodge an appeal without legal representation to the best standard possible for a non-legal professional. Irma (UK) represented herself and became homeless after seeing her appeal rejected. The case of Daphne (UK) is also illustrative. When her solicitor abandoned her before the hearing, she led her own appeal. After explaining what had happened to the judge, he adjourned her case for 2 weeks, however she was still unable to find a legal representative, so her appeal was refused. Incredibly, when she finally found a solicitor to take her case to judicial review, she was eventually given refugee status after a total of three refusals and more than 6 years in the asylum system.

Denise and Umar, legal advisors in the UK, explained one reason why law firms are reluctant to take cases based on sexual orientation-related persecution, particularly fresh claims:

If [a sexuality case] has been refused, then it really needs some real… detailed and really kind of concentrated work in order to try and make it a success. (…) If you are in a private practice and (…) you are looking at your profit, then some of these cases are not the kind of cases that you would want to take on because they require a lot of work that you are not necessarily going to be paid for by through legal aid.

According to Sean, a lawyer in the UK as well, it is not only about profit:

Those fresh claim cases add a layer of complexity and difficulty to an original asylum claim. Because if you have got a new client who hasn’t claimed asylum yet, you can sit down and say “Right, this is the process, this is what is going to happen. Let’s take your story”. (…) With a fresh claim you have got to do all of that, you have got to identify what went wrong in a previous claim, turn that around, explain this is the actual story and the corroborating evidence, and why it wasn’t done before or what was missed and that there might have been delay for personal reasons, reluctance to talk about things. It may be a solicitor’s incompetence, [or] they haven’t done it because they feel restrained by the fixed fee (…). And then you put it altogether and you present the fresh claim in person but in Liverpool.

Negative attitudes also emerged during hearingobservations in tribunals. For example, during a tribunal observation in northern Italy in 2018, we observed the completely passive behaviour of a substitute lawyer before the judge, and failure to intervene on the claimant’s behalf. The situation appears even more problematic if coupled with the influence of strong bias against SOGI claims. As one of the lawyers contacted for carrying out that observation expressly affirmed, ‘SOGI claimants always tell the same stories’, thus assuming that – at least as a starting point – all his clients lie to obtain international protection.

The difference between legal representation of good or poor quality is captured in the account given by Jayne (UK):

I have never been to court, I don’t know what to expect, what do they expect me to do, what shall I bring with me. Just general information. So, I remember all [the solicitor] said was just prove you are a lesbian. (…) the day before my hearing I went to the office tearful to the receptionist to say, I have court tomorrow (…) and I don’t know what to do. (…) One of the solicitors came and said “oh, you shouldn’t worry, your solicitor will be at the court tomorrow”. I went home, the following day I went to court (…) one lady came and said (…) “I am going to represent you” (…) She doesn’t know anything about my case, there are some things that I requested that they don’t get like discussed, in front of people, and… boom [they were discussed publicly], because she didn’t know anything. (…) At some point the judge asked her a question and she said, “I am sorry but I have only been given the file this morning, so I really haven’t had time to go through this file.” (…) Now I started the journey of a fresh claim. And it was a totally different experience altogether, because I could sit two or three hours with [the lawyer] asking me personal… questions, getting deep into my case, asking me about my relationships, I didn’t know all that would be relevant to my case.

Perhaps not surprisingly, decision-makers are conscious of the differences in the quality of legal representation. Harry, a senior judge in the UK, told us that while some lawyers do their job very well, at ‘the other end of the spectrum are unscrupulous people who prey upon the most vulnerable in our society, take their money and do a dreadful job for them’. Equally, according to Silvana, a judge in Italy, SOGI claimants too often lack adequate legal representation, which is clearly reflected not only in the lack of contact with their clients, but also by their usual ‘copied and pasted’ appeals. Training and preparation of lawyers, as well as of any other staff working with SOGI claimants, thus remains a highly problematic aspect which needs specific investigation.

2.3 Training of Volunteers, Lawyers and Staff Working with SOGI Claimants

Concerns about the lack of training of SOGI asylum of volunteers, lawyers and staff working in the field were widely reported, particularly in Germany and Italy (Helena, EASO staff member; Angel, Germany; Kadir, NGO worker, Germany; Emilia, judge, Germany; Nazarena and Giuseppe, lawyers, Italy). The rules currently in force, including at EU level, do not establish any obligation to train staff working with SOGI claimants on the specificities of these claims. The same is true for lawyers, whose basic legal training does not cover SOGI claims specifically, and for volunteers, who often are not trained at all. Only a few of our participants received training on SOGI asylum (for instance, Knud, NGO worker, Germany; Juliane, public official, Germany). Even when training on asylum is offered, for instance concerning the CEAS, this does not cover the grounds considered here.

From a positive perspective, various kinds of SOGI asylum training are provided by support groups across the three countries under comparison, sometimes in cooperation with local/national/European/international institutions, for anyone who is willing to be involved on a voluntary basis. For example, Giulia, an LGBTIQ+ group volunteer in Italy, recalled a training course organised in 2017 by local associations in central Italy, in cooperation with the UNHCR, as a fundamental moment in her involvement with SOGI claimants. On that occasion, she learned it was possible to alert territorial commissions in advance of the interview date to ensure SOGI-friendly procedural arrangements on the day (Sect. 6.3). Still in Italy, before launching their new support groups, some leaders organised training courses on the basics of SOGI asylum by inviting experts in the field or attending training with ‘experts’ (for instance, Anna and Vincenzo, LGBTIQ+ group volunteers; La Migration 2018). As Vincenzo put it: ‘I needed to be trained to avoid damaging or not supporting entirely people who arrive with problems that I was unable to understand’. Perhaps even more interesting, owing to the lack of training available to staff working in reception centres, a few support groups took the initiative of offering training to local reception centres, not only on SOGI asylum but also on SOGI equality – an offer that some centres accepted (for instance, Giulia, LGBTIQ+ group volunteer). Yet, as Vincenzo (LGBTIQ+ group volunteer) pointed out, most staff working with SOGI claimants are not ‘craving for training, but need mechanical tools to make their work easier’. Consequently, in his view, only those people who already have an interest in this topic choose to be involved in voluntary training courses; thus the challenge is engaging the remaining staff working with SOGI claimants but without an interest in improving their knowledge and expertise in this field.

In the Italian asylum system, we also heard of the specific problem of accommodation centre staff not possessing a legal education or previous experience with refugees or migrants (for instance, Vincenzo, LGBTIQ+ group volunteer). This hampered their ability to elicit claimants’ stories in an appropriate way, with negative consequences for the asylum procedure, especially in terms of subsequent assessment of credibility (Chap. 7). The different degrees of SOGI asylum expertise of staff may be attributed to the particular individual or entity managing a given accommodation facility. Many participants shared the view that, as such facilities are run by private companies, their managers did not find it profitable or, more simply, were not aware of the need to train their staff in general and, more specifically, on SOGI asylum (Nazarena, lawyer; Roberto, decision-maker; Silvana, judge; Susanna, social worker). For these participants, finding competent staff in reception facilities was indeed a kind of lottery. Positive experiences were nonetheless found among this specific group of professionals. For example, Nazarena, a lawyer, explained that the staff with whom she cooperated at accommodation centres had begun to compile information about claimants’ countries of origin in order to better understand their experiences.

Lack of training facilitates the prevalence of practices based on bias, prejudices and stereotypes. For instance, the lack of basic understanding of transgender issues was at the core of experiences of discrimination against transgender claimants. Kamel, who submitted an asylum request in Italy by using identity documents where his sex at birth was signalled, reported the ignorance of the staff met at the police headquarters: ‘I said “I’m trans” and she did not know what trans means [while] keep saying “are you a man or a woman?”’. He felt very hurt. More strikingly, as Kamel also explained, this same problematic attitude towards transgender claimants was observed in relation to staff who already dealt with gay claimants. Another relevant case was mentioned by Giulia, an LGBTIQ+ volunteer in Italy. Despite the obligation to respect the right to privacy of claimants, a reception centre staff member had shared details about a gay claimant with other users of the centre, and as a result he experienced discrimination. As confirmed by Cristina (UNHCR officer, Italy), this was not an isolated episode. Lawyers also fall prey to bias and prejudice, leading some to treat SOGI claimants arriving from particular countries with suspicion (for instance, Tribunal observation, northern Italy, 2018).

For these and other reasons, while pointing out a general need for both basic (on asylum) and specialised (on SOGI issues) training of all categories working with SOGI claimants, our participants also drew our attention to particular areas of need. For instance, Cristina (UNHCR officer, Italy) emphasised the importance of multi-disciplinary training also covering basic concepts, such as SOGI and equality, in order to promote and consolidate an anti-stereotyping approach within the asylum system, consistant with our theoretical underpinnings (Chap. 3). This view was shared by Louis (NGOvolunteer, Germany), who pointed out the need to sensitise people working with asylum claimants in a way that can help them understand claimants fleeing homophobia or transphobiawithout forcing them to come out. According to Nazarena (lawyer, Italy), training should include background information on COI (Sect. 6.5) and on claimants’ cultural background, not simply on legal matters. Finally, Evelyne and Anne (lawyers, Germany) pointed out the need to involve claimants in training all people working with SOGI, as well as therapists or psychologists to support these people in how to manage the emotional consequences of their job. In this respect, it is noteworthy that positive experiences on training carried out at EU level included topics like how to create a safe space and how to help SOGI claimants to be open about their stories. Of course, while being relevant for all those considered in this section – volunteers, lawyers and staff – these general recommendations need to be tailored, taking into account the specific role played by these actors in the SOGI asylum procedure (Chap. 11).

In brief, while we heard of the provision of one-off training, we found little evidence in the three countries under examination of mandatory, systematic and continual SOGI-specific training for those working with SOGI claimants, except where volunteers, lawyers and staff autonomously choose to attend available training on SOGI asylum. Some participants also expressed doubts on the real effect generated by widespread specific training, other than producing greater awareness on SOGI asylum. In fact, the working conditions in the asylum sector remain ‘hard’ in the context of large migration flows and involve actors that may not support SOGI equality. In relation to the latter aspect, Celeste (social worker, Italy) told us of a lesbian claimant who was accommodated in a facility run by the Catholic Church. Irrespective of the background training of the staff, she decided to avoid any reference to her grounds of persecution for ‘safety’ reasons.

Beside this, even for the most sensitive and experienced SOGI asylum advisors and representatives, the impact of work of this nature can have an effect on the individual that in turn affects their ability to do their job. For example, Deirdre, a lawyer in the UK, explained that:

[T]hat’s the risk that you become 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 (…). And we have to be so careful of our staff with that, because as soon as that starts to happen, quality just goes.

As Helena (EASO staff member) explained, almost everyone who has been in the asylum system for more than 2 years has had vicarious trauma or a ‘burn out’, so the easiest response is to stop believing in claimants’ stories. Yet, apart from some institutions’ measures mitigating against the risk of burn-out of their staff (for instance, the psychological support offered by the UNHCR, as reported by Cristina, UNHCR officer, Italy), there is no obligation whatsoever in the legislation of the three countries under comparison, nor under EU law, to provide appropriate support or risk-management measures. Similar concerns emerged in relation to decision-makers involved in the main asylum interview, to which we now turn.

3 The Main Interview: Actors and Procedures in SOGI Asylum

The key moment for all asylum claimants is indubitably their main interview. As Evelyne and Anne, lawyers in Germany, pointed out:

[we] often have clients from all sorts of countries saying, “Yes, I was in the hearing with the judge”. Those are not judges. But they have the feeling that this is an incredibly important person. (…) They have a huge respect. They do not sleep for days before this interview (…) they have dark circles under their eyes because they did not sleep all night. Eat nothing, drink nothing (…). And [often] there is no one who somehow creates a pleasant atmosphere.

In spite of the differences between Germany, Italy and the UK, a common pattern emerges. Asylum systems should provide an environment in which claimants feel comfortable about self-identifying as members of a SOGI minority and revealing the real grounds for their asylum request, in line with the UNHCR SOGI Guidelines. Instead, no asylum system under investigation here has in place formal procedures addressing the specific needs of SOGI claimants at the main interview. Even the simplest possible measure, consisting of a formal preliminary communication mechanism to inform the relevant administrative body that an interview with a SOGI claimant will take place in order to identify the most appropriate interviewer/decision-maker (as pointed out, for instance, by Cristina, UNHCR officer, Italy), is absent in all countries.

In addition to the lack of specific measures, the entire interview process seems designed to unveil false claims. As Sean (lawyer, UK) put it, often the starting point is ‘“[y]ou are a liar, convince me otherwise” (…) rather than having an open mind, asking, “tell me your story, let me understand it, and let’s explore it”’. Moreover, as David (official, UK) confirmed, SOGI claimants are not always recognised as complex cases: ‘I think there are seven types which are automatically perceived to be complex, pregnant women being one, for example. I don’t think LGBT is one’. That is why this section places particular attention on the actors involved in the interview process. After analysing the interview setting and the – general or informal – procedures in place for reaching a decision on asylum applications, we move on to the selection and the training of interviewers and decision-makers, how these actors carry out an interview with a SOGI claimant and, finally, the influence – if any – of bias during the interview, in light of the experiences of our participants.

3.1 The Interview Setting

As anticipated in Chaps. 1 and 4, despite some similarities, each country under investigation has shaped its asylum system differently, especially at administrative level. Here we aim to identify any specific, even informal, procedural arrangements in place for managing these particular claims.

In Germany, the BAMF is responsible for the asylum interview (‘Anhoerung’), which in most cases is carried out by a single officer. When there is an indication that the claimant belongs to a ‘vulnerable’ group, a specialised decision-maker may be called to process the claim. In line with Article 12 of the Procedures Directive (Chap. 4), vulnerable groups include unaccompanied children, victims of torture, traumatised asylum claimants and victims of gender-specific persecution, which may also cover SOGI claimants on a case-by-case basis.Footnote 9 The involvement of a specialised officer (‘Sonderbeauftragter’) can be also requested before the interview. Some criticism has emerged in relation to the effective availability of these officials in every BAMF office, as well as the quality of interviews (ECRE, AIDA & Asyl und Migration 2018, p. 45). Moreover, according to a local survey involving several NGOs in North Rhine-Westphalia (Held et al. 2018), most SOGI claimants are not aware that they can ask for a specialised officer and, when requested, their involvement was not always guaranteed.

Our participants in Germany shared contrasting views on this subject. Although the existence of specialised officers was widely reported, some doubts were expressed in relation to their number (for instance, Evelyne and Anne, lawyers; Noah, NGO social worker), availability across Germany (for instance, Frank S., legal advisor) and the regularity of their involvement in processing SOGI claims (among others, Marlen, legal advisor). Where and when this procedural arrangement is adopted, it seems to be based on informal grounds. In this respect, Sabrina, an NGO worker, explained that, during a meeting with BAMF, ‘it was virtually decided that we could inform the BAMF if we knew of any such case, and then a specialised officer would be appointed for the interview, or at least included in the decision-making process’. Sandra, who claimed asylum in Germany, confirmed that her lawyer requested a specialised officer and one was appointed. The officer was a man, and, in line with EU law norms on this matter (Article 15(3)(b) of the Procedures Directive), Sandra was given the possibility to choose the gender of her interviewer. To this, she answered:

If it’s gay or lesbian, I feel like I’m home. Someone I can be open about anything, because he or she would understand. So, for me, if it’s a man or a woman… as long as he’s from my group.

In her view, sexual orientation played a more important role than gender in terms of the choice of the interviewer, which highlights the importance of the intersectional approach to our analysis adopted in Chap. 3. For other participants, or in specific contexts in Germany, this choice still remained problematic. A striking example was provided by Tina. She was not aware of this possibility and, despite being interviewed four times, only the last interview was carried out by a woman and then she finally felt ‘free’ to talk. Equally, Mayi (focus group no. 4, Bavaria), who was interviewed by a male officer, explained:

I did not give them everything. Because myself, I was feeling ashamed. Maybe I thought they would judge me (…). I didn’t have a choice. And when you are talking to them, the way they look at you, it’s like “what are you talking?” Really, you feel fear.

In turn, Shany recalled that, being in detention at the time of the interview, she had ‘no choice’ and experienced a particularly distressing situation:

I’m sitting and then I need to say my story in Moroccan [Arab] and they are two men [the interviewer and the interpreter], I mean, like not women, I mean, how can you bring men? It was like horrible. (…) It’s just like you can’t, because there is two men and I got small, my confidence is low, it’s going down. (…) I see father, I see jail, I see knives, I see that I’m there, I see everything then (…) I would never do it if I have this kind of interview (…). I would stay in the desert, maybe living alone with animals. (…) I never have any conversation with Moroccan men.

A distinct situation is in place in Italy, where the UNHCR is directly involved in the administrative decision-making process, as discussed in Chap. 4. The presence of the UNHCR staff in the territorial commissions brings the attention of these bodies to the specific needs of SOGI claimants. An informal procedural arrangement was consistently reported across Italy. When the presence of a SOGI claimant is known via the C3 form, there is a high chance that the interview will be carried out by the UNHCR representative or otherwise by another territorial commission member specialised in SOGI issues (among others, Giuseppe, lawyer; Maria Grazia and Roberto, decision-makers; Celeste, social worker). The same arrangement takes place if a SOGI case is communicated in advance, mainly by the accommodation centre’s staff, NGOs or support groups, or when SOGI is visible (for instance, when transgender claimants are already transitioning, as reported by Valentina, social worker). When the SOGI nature of the case is not known or communicated in advance, the interviewer may decide to stop and postpone the interview to ensure that the most competent member of the territorial commission is involved. As Daniele (decision-maker) pointed out, this system clearly favours SOGI claimants who are already open about their story or are sufficiently prepared for the interview. A similar informal arrangement is also used for other specific categories identified as ‘vulnerable’, like victims of trafficking. The ongoing discussion about the replacement of the UNHCR representatives with human rights experts may not, therefore, lead to an improvement of the overall process insofar as SOGI asylum is concerned (Roberto, decision-maker), unless the new professionals are required to have an equal level of expertise and are employed with the same UNHCR mandate, which is clearly based on a human rights reading of the Refugee Convention, in line with our theoretical underpinnings (Chap. 3). Finally, our participants confirmed that a general measure adopted in the daily activities of territorial commissions for all claimants, as required by law, irrespective of their persecutiongrounds, is to ensure that participants are offered interviewers of the same gender (for instance, Daniele, decision-maker). Yet, this is not always possible, especially when the commission member most competent on SOGI asylum is not of the same gender of the participant. Moses, claiming asylum in Italy, explained that he was not comfortable at all with ‘a woman asking such questions… it wasn’t really easy for me’. Considering that he waited 10 months for the interview, however, he decided not to risk further delays by asking for a male interviewer.

Moving to the UK, no separate process for SOGI claims is in place, but the activity of the Home Office is informed by specific SOGI guidance, namely the 2011 guidance on gender identity and the 2016 guidance on sexual orientation (Chap. 4). Both documents show a high degree of sensitivity to the particular issues likely to affect SOGI claimants. For instance, claimants should be ‘given respect and referred to by their chosen name and gender identity’ (Home Office2011, p. 12). The 2016 sexual orientation guidance emphasises, in turn, that caseworkers should avoid stereotyping such as requiring familiarity with the ‘gay scene’ and should allow the claimant to provide a narrative without expecting ‘milestones such as first romantic encounters’ (Home Office2016, p. 27). Equally, they should recognise that claimants may find it difficult to talk about their sexual orientation (Home Office2016, p. 13). In our fieldwork specific contrasting views emerged in relation to how the processing of SOGI claims is supervised. Olivia (government official) explained that in Scotland and Northern Ireland all SOGI claims are subject to the Second Pair of Eyes procedure, consisting mainly of an evaluation of the quality of the decision-making process by a more senior colleague. As Olivia pointed out, according to available records, final decisions did not change most of the time, ‘but it may well be that that [more senior colleague] goes back to the decision-maker to say, “here is another aspect that you have not actually considered”’. While the value of this procedure is apparent for SOGI claims, it does not seem to be mandatory across the UK (David, official). As for the right to choose the gender of the interviewer, it is granted so far as Home Office’s resources allow it. For instance, when Amber was asked during the screening interview if they had any preference in this respect, they were told that the Home Office would try to accommodate the request ‘depending on available staff’. Finally, it is worth noting that, once an interview is scheduled, claimants are not always given appropriate resources to reach the venue. The case of Selim is striking. After waiting for 7 months, he could not afford the price of the train ticket. To avoid seeing the interview postponed for months or years, he sold his engagement ring.

An important question to consider in all countries under comparison is whether the interview is carried out by the same person who eventually takes a final decision on the case. In Germany, cases are often decided by designated decision-makers rather than the person who interviews the claimant (Gisela, lawyer), even when a specialised officer is involved. In Italy, instead, given the particular composition of territorial commissions, the interviewer corresponds, at least informally, to the officer deciding on the case. In fact, whereas the law establishes that, within territorial commissions, decisions are taken collectively, in practice it is the officer who individually interviews a claimant who, afterwards, reports directly to the entire commission and drafts a decision to be jointly discussed. As Titti, a decision-maker, explained, after interviewing a claimant, she usually drafts a decision consisting of three main parts: applicable law, facts of the case and credibility of the claimant. When the entire commission reunites after each member’s interviews, reasons for the drafted decision are explained in order to reach a unanimous decision. During this discussion, it may happen that, when a SOGI case is reported, the most competent member of the commission in this area asks for a second interview to be scheduled with the claimant if it is perceived that the interview was not carried out appropriately (for instance, Maria Grazia, decision-maker; Cristina, UNHCR officer). Equally, a second interview may be scheduled when, from the account of the interviewer, doubts arise about the existence of a potential non-declared SOGI claim or when the interviewer is not able to report accurately the case while proposing a rejection (for instance, Daniele, decision-maker). In all other circumstances, if a consensus is reached, the drafted decision is adopted by the territorial commission. In very exceptional situations, where the members of the commission do not agree, it is possible to issue a dissenting separate opinion. According to some participants, the collective approach to decision-making is not only an essential guarantee of a fair decision-making process for SOGI claimants, but also stimulates all members to operate appropriately to avoid seeing the decisions they draft refused (Roberto, decision-maker). Finally, in the UK, most cases are decided by an officer who is different from the interviewer (Olivia, government official). Alternative experimental models have been tested, such as the pilot scheme called the Early Legal Advice Project, in which individual case owners were more likely to cover all aspects of a case. Yet, these experimental models were not adopted permanently, for reasons such as cost and the longer time that decisions took to be made (Home Office2013).

On the need to have – or not – a single caseworker for the entire administrative procedure in order to improve the fairness of the SOGI asylum system, some contrasting views were held by our participants. According to Roberto (decision-maker, Italy), there are no advantages at all to having a single caseworker. As he explained, every system should be based on collective decision bodies or on discussions between peers before reaching a final decision or, at least, on referrals to senior caseworkers. In fact, there is a widespread belief that involving different caseworkers contributes to the objectivity of decisions (for instance, Evelyne and Anne, lawyers, Germany). Yet, for some participants, a collective decision-making system is problematic. According to David (official, UK), the involvement of different caseworkers leads to a decision process that appears as a ‘transaction [in which] the [final] caseworker is reviewing the material (…) and saying “does this [claimant] meet [certain] tests”’. In turn, for Daniele, decision-maker in Italy, when the interviewer is not the decision-maker, the latter can never properly evaluate the claimant’s credibility. In his view, the decision-maker needs to focus also on elements like demeanour or non-verbal communication, which are essential factors in complex applications, such as those based on SOGI grounds. In any case, as Daniele further pointed out, in this area the fairness of the evaluation process always depends on the ability of the single caseworker to avoid being influenced by bias, prejudices and stereotypes, that is, an approach based on some of our theoretical underpinning (Chap. 3). That is why their selection and training, to which we now turn our attention, remain fundamental.

3.2 The Selection and the Training of Caseworkers

In light of the differences that have emerged so far in our analysis, it is not surprising that each country under investigation has its own rules and practices on the selection and training of interviewers and decision-makers.

Starting with Germany, there is no indication that the BAMF, when hiring its officers, requires that they undergo a particular training covering SOGI asylum or possess particular high level qualifications. Data shows that most caseworkers did not complete any or the full training programme, ‘with new staff members only being trained in “crash courses” and getting basic training only after they have started their job’ (ECRE, AIDA & Asyl und Migration 2019, p. 20). Having regard to the caseworkers who process SOGI claims, the so-called ‘special officers’, the German government explained that BAMF officers should complete specific training on ‘vulnerable’ groups, which also contains modules on gender, gender identity and sexual orientation, and receive appropriate references to documents and publications such as those issued by the EASO (BMI2019, pp. 2–3, 18). Yet, most of our participants claiming asylum in Germany were not heard by special officers, being interviewed by officers who had therefore not received specific training. From their perception, the training of the BAMF officers in SOGI asylum is indeed very poor. An example of this was provided by Ibrahim, who still remembered that:

When I first applied (…) she asked me “why are you here? Why are you applying for asylum?” In English. I said “because of my sexual orientation”. She said to me “what?”. I had to let her see a picture of two gay men kissing so she understood.

Although signs of improvement had been noticed (Knud, NGO worker), the pressure caused by a high number of asylum applications in 2015 and 2016 was reported as one of the main reasons for shorter intensive training programmes for newly-arrived caseworkers (for instance, Elias, lawyer). Serious consequences from the lack of specific training have followed. Speaking about one of his clients who was hiding his sexual orientation from his family, Frank S. (legal advisor) recalled that when the claimant’s mother arrived in Germany a few months later and was interviewed in the context of her asylum application, the interviewer revealed to her the son’s sexual orientation, thus violating the son’s right to privacy. Specific concerns were also reported in relation to the correct use of information about claimants’ countries of origin (Sect. 6.5). In this respect, Noah (NGO social worker) noticed that most decisions related to Jamaica are copied and pasted: ‘Besides the individual rejection reasons, which are derived from the interview, [BAMF decision-makers state that] “in Jamaica, the situation is not as bad as shown, because (…) the Ministry of Justice set up a programme that should sensitise the local police [and] protect them”’. This mechanistic use of COI reflects poorly on the training of the decision-makers.

In Italy, the particular composition of the territorial commissions shapes both the selection mechanism and the training available to each member. Following the 2017 reform (Chap. 4), if we exclude officers serving as presidents and the UNHCR representatives, whose selection and training follow different paths, 250 new officers were selected through a national public competition in 2018. The evaluation was mainly based on legal knowledge of the asylum legal system, thus excluding people with other university studies (Vincenzo, LGBTIQ+ group volunteer). In the context of the training programme organised by the National Commission of Asylum in cooperation with the UNHCR, successful candidates specifically addressed SOGI asylum through a format consisting of general information and case-study analyses with the involvement of SOGI experts. As Cristina (UNHCR officer) explained, a transgender activist was invited as well, not only for the information they could offer, but also to address, directly and indirectly, potential stereotypes and prejudices in newly-appointed officers. This initial training has been followed by periodic refresher trainings. This development was seen as positive by our participants, because it came after a period where the high number of applications, and the consequent setting up of new territorial commissions on an emergency basis, hampered the implementation of specific training on SOGI asylum. In fact, one of the decision-makers who was employed in that precise period explained that, in light of her legal background and her activism on SOGI equality, she was appointed by the local municipality but, except for a few days of individual coaching by the UNHCR representative in her Commission, she had received no comprehensive training before starting her new role. As she summarised, ‘I really felt like I was thrown into the deep end’ (Maria Grazia, decision-maker).

At least in principle, the employment and the coordinated and intensive training of the new caseworkers in Italy may improve the poor level of preparation of decision-makers reported by some participants (among others, Anna and Giulio, LGBTIQ+ group volunteers). The involvement of professional staff with an expertise in asylum would potentially lead to fairer evaluations and better-motivated outcomes (Silvana and Maurizio, judges). These opinions were also based on the premise that the new staff replaced police officers and local authorities’ representatives who, irrespective of their background, were mainly perceived as pursuing security or locally-based interests and being influenced by bias and prejudices (for instance, Maria Grazia, decision-maker). A number of examples connected with the former composition of territorial commissions were attributed to the lack of, or poor, training. For instance, Mara (lawyer) recalled that the decisions of some territorial commissions show a clear lack of knowledge about the situation of SOGI people in their countries, leading to the use of ‘copied and pasted’ information on the claimant’s country of origin, without paying attention to the specific region and situation at stake, thus similar to Germany. It is worth noting however that, due to the role internationally fulfilled by the UNHCR, even when specific training is not available, the UNHCR representatives within most territorial commissions provide a sort of ongoing training to all other members and staff. In fact, in case of doubts on how a case should be managed or which form of protection should be granted, the UNHCR representatives are regularly consulted (Titti, decision-maker). For this reason, their own training becomes fundamental. As several participants explained, the UNHCR representatives are continuously trained on different aspects of the asylum process, including SOGI asylum. Moreover, thanks to their periodic rotation across different territorial commissions, the risk of burn-out is also somewhat reduced.

In the UK, repeated calls for better training on SOGI claims for Home Office decision-makers led to some improvements (Gray and McDowall 2013, p. 23). Thanks to its activities, the UKLGIG ‘had extensive input into compulsory training for all UKBA decision-makers and into an Asylum Policy Instruction on sexual identity asylum claims’ (House of Commons Home Affairs Committee 2013, pp. 86–87). Despite this, in 2016 it transpired that university education did not seem to be a requirement for being selected as a caseworker, it being only incidental that most caseworkers have university degrees (Khan 2016, pp. 277–282). In the same year, a parliamentary report recommended that the Home Office improve staff training and potentially appoint specialised caseworkers in SOGI cases (APPG on Global LGBT Rights 2016, p. 6). While the reduction in the seniority and expertise required of asylum decision-makers as a cost-saving measure contrasts with Home Office reassurances about the delivery of appropriate training on SOGI asylum (Home Office Minister 2018), our participants shed light on the kind of programmes in place to train interviewers and decision-makers. According to Olivia (government official), a foundation training programme is given over a period of 5 weeks. While the first 3 weeks are dedicated to decision-making, the principles of the Refugee Convention and immigration rules, the subsequent 2 weeks cover specific types of asylum applications, including those based on SOGI grounds. Qasim, a decision-maker who was trained in 2017, confirmed this in detail:

We looked at some of the feedback that previous LGBT applicants have given regarding their experience of the asylum process, including their criticisms of the Home Office. We then had further group discussions around what an LGBT asylum applicant would find difficult in an interview environment, why an LGBT person may not want to disclose their sexuality, and how we as interviewers can help applicants to explain any shame or stigma they may have felt as a result of their sexuality. We also looked at the difference between someone’s identity as a gay person and their conduct, why someone might be at risk as a result of either of these factors and the reasons why someone who is gay might not want to get involved in a gay relationship. We also explored how we would conduct an LGBT interview (…) and we completed case studies to prepare us for dealing with LGBT applicants. We also of course looked at what factors we would need to consider in order to decide whether an LGBT person should be granted asylum in the UK. This includes looking at the degree of risk for LGBT people in their country and whether internal relocation within their own country or sufficiency of protection is available.

This foundation programme is followed by periodic refresher training, but enrolment is voluntary. A sort of mentorship scheme, consisting of an experienced officer following the newly arrived caseworker for a certain period, is also organised. As Emily (decision-maker) explained, ‘at the beginning you get every decision checked by a technical expert, until you’re ready to be signed off’. Overall, by taking the training and this mentorship into account, as Olivia (government official) pointed out, ‘it probably takes about six months for a decision-maker to become (…) more competent, confident’. Although this training appears satisfactory, as David (official) reported, caseworkers who are relatively new do not always ‘feel that their training was adequate’ and lack adequate mentoring. The consequences for him are evident:

If you have got volumes of demand coming in, time limits on decisions, lots of very new people with little experience and the people who have been bumped up to be their immediate managers, you know, are equally not especially experienced, (...) you are giving people a challenge which they can’t meet.

As a result, David favoured a focus on ‘quality assurance’ and more effective mentoring of more junior caseworkers.

In light of data collected across the three countries here analysed, a few more aspects concerning the selection and training of decision-makers should be highlighted. First, while suggested by some claimants (for instance, Ibrahim A., UK; SGW, focus group no. 4, London, UK), the specific recruitment of people belonging to SOGI minorities as caseworkers in SOGI cases was deemed unfeasible by other participants, partly because of employees’ right not to reveal their SOGI (in contrast to perceptions of the rights of the claimants whose claims they assess). In fact, Olivia (government official, UK) argued that ‘my team is a diverse team, and they do their job regardless of who they are speaking to’. Second, it was widely stressed that, once decision-makers are appointed, they should be able to rely on adequate support and periodic breaks to reduce the risk of burn-out. For example, Roberto (decision-maker, Italy) told us that ‘I cannot imagine someone who interviews claimants for 40 years (…) you certainly die before’. Third, as for the kind of training organised for new caseworkers, participants highlighted the need for knowledge and tools that go beyond legal notions, and which considered the concrete experiences of SOGI people (among others, Chiara, NGO worker, Italy). As Maria Grazia (decision-maker, Italy) pointed out, many decision-makers still do not have direct experience of SOGI minorities and should be taught about the meaning of SOGI to break down the ‘stereotyped, generical, unreal idea’ they may have. In order to be effective, such training should directly involve SOGI refugees. Fourth, the importance of training was often related to the development of caseworkers’ ability to recognise SOGI claims even when they are not raised by the claimants. This seems to be the real challenge, but which may help to effectively implement an approach compatible with our theoretical underpinning (Chap. 3). The example reported by Titti (decision-maker, Italy) is illustrative:

Once, I was interviewing a male claimant who was talking about many different things and at some point, despite the presence of the interpreter, I noticed that he mentioned a male partner, not a female one, but he promptly corrected himself. The interview went on for a while and he never mentioned his partner again. I didn’t treat this episode as a slip, but as a sign that he was ashamed to talk about certain life experiences. (…) After the end of the interview, I contacted the accommodation centre to ask if they had checked or prepared the claimant somehow. [They did not] In that moment, all [his fear of persecution] was clear to me. (…) It was unnecessary to ask “Are you homosexual?”.

All these dynamics require a multi-dimensional and multi-disciplinary training, which in turn can ensure an effective and fair interview.

3.3 The Conduct of Interviews

Other than the relevant provisions of the Procedures Directive (2005 original version for the UK and 2013 recast version for Germany and Italy, Chap. 4) and the jurisprudence of the CJEU, there are no common standards between the three countries explored here for the conduct of an interview with a SOGI claimant. Bearing in mind that the Refugee Convention leaves this matter to the discretion of contracting states, the general standards recommended by the UNHCR SOGI Guidelines have not provided enough common ground for harmonisation of interviewprocedures. Crucially, according to our data, differences exist even within each country. A variety of aspects need to be analysed.

To start with Germany, no list of specific questions is provided to interviewers, with all questioning individually tailored (BMI2019, pp. 13, 16). SOGI claimants shared a general feeling of disempowerment in this stage of the procedure. One example was provided by Alphaeus, who was informed of his second interview only the day before it was scheduled:

[The BAMF stated] “Before we ask you further questions you have to sign this document”. I was like “what is the document all about?” They told me “this document, it’s about asking permission from your embassy, from the Ugandan Embassy, to give us authority to take you back to your country. (…) If you don’t sign it, we don’t proceed. (…) Failure to do so, that means you’re not co-operating.” (…) I had no option other than to sign.

According to Evelyne and Anne (lawyers), sometimes the interviewer’s cultural and social background hampers SOGI claimants from opening up. Recounting the case of a gay claimant coming from an Islamic culture, who was severely traumatised by his life in a small village, they explained how a cultural awareness and sensitivity could diminish this risk:

He saw the worst things. And there was the interviewer with a headscarf. Not the interpreter, but the interviewer was wearing a headscarf. And he (…) was practically unable to speak. (…) That’s such a sensitive area. (…) [Then the interviewer should ask]: “Is it alright for you? Have you experienced things that you do not want to tell me now because of my religious attitude? That’s no problem, we can swap the interviewer”.

As for the length of interviews, they range from a few hours (for instance, Trudy Ann was interviewed for ‘only’ 3 h) to almost a day (for example, Alphaeus was interviewed for 9 h). Evelyne and Anne also gave the case of a claimant who had been repeatedly raped over the years and was interviewed for more than 9 h with no break, ignoring the risk of re-traumatisation (UNHCR2012b).

The wish to create a safe environment for SOGI claimants sporadically emerged in our fieldwork in Germany. For instance, Sandy (focus group no. 1, Hesse) reported that the interviewer approached her at the end to say ‘Miss X, you don’t have to worry no more, you’re safe’. By contrast, in other cases, no efforts were made. Veronica waited with her partner and her two children for 5 h for the interview to take place:

And it’s already five-thirty in the evening. (…) Of course, they [children] are all a bit nervous because five hours and no food and decision-maker (…) did not ask me so much. (…) I also felt that she is not so open to conversation. (…) It is already almost night, eight o’clock in winter [when the interview finished], totally dark. We have nothing to eat, we should go to the train station and we do not even know where to go, which direction, it is raining.

Diana reported that the lack of support after the screening interview made it impossible for her to open up again:

At that time, I told them I’m a lesbian, like that. (…) So me, I was waiting to hear from them, that (…) maybe they could give me organisations that, maybe you can go to these people, they can take care of you (…). But they didn’t tell me anything, so when I went back, I started growing fear in me, not to come out, to talk. (…) So when I was called to the second interview, so I said “maybe if I talk it again, no-one can help me, so it is maybe better for me to keep quiet, not to tell them”. (…) I didn’t open up. (…) No-one is there to help you.

Cases of multiple interviews were also reported (for example, Tina was interviewed four times before a final decision was reached), in spite of the acknowledged risk of re-traumatisation (Alessi et al. 2016, 2018; Bögner et al. 2007). We were also told of the (unusual) involvement of claimants’ children during interviews (Harriet, focus group no. 2, Bavaria), potentially violating claimants’ and their children’s right to privacy. Finally, interviewees’ right to read and sign the minutes of the interview was sometimes rendered meaningless because of language issues, as highlighted by one of our participants: ‘even if you could read German, you will not be able to understand what you read. And it doesn’t make any sense’ (Emroy, focus group no. 1, Hesse). For these reasons, the previously mentioned option of being accompanied, by support group volunteers and/or to be assisted by a lawyer during the main interview is particularly important for these participants (Sect. 6.2).

In Italy, the presence of the UNHCR representatives may be the basis for a more sensitive approach towards SOGI claimants, beyond the already mentioned frequent allocation of these claims to the most competent member of territorial commissions. First, there is no indication that the interview is carried out on the basis of a pre-established list of questions, commissions generally preferring an open approach based on the specific circumstances of the case. As Titti (decision-maker) confirmed, questioning cannot but be case-specific. Second, particular attention is given to creating a supportive environment. While Cristina (UNHCR officer) explained that ‘sometimes there is no need to ask many questions’, Titti also shared with us the general approach she adopts during interviews:

At the very beginning, I introduce myself as a member of the UNHCR in order to make it clear that I do not have any prejudices based on gender, culture or religion. I show them pictures about the UNHCR (…). At that point, I can see that the claimant is more confident (…). I also ask if it is ok that I’m a woman and specify that they can choose [another interviewer] with no consequences for the final decision (…) I also ask them if they have questions for me, as I have for them [and] some claimants asked me questions to know who they were talking to. (…) I think all this is very important (…) in order to establish trust.

In turn, Maria Grazia (decision-maker) recalled that she usually started interviews by trying to provide as many guarantees as possible in relation to the claimant’s privacy and the confidential nature of the interview. Once she also revealed her own (non-heterosexual) sexual orientation when she noticed that a gay claimant was embarrassed and afraid to speak about themselves. Although she expressed doubts about the appropriateness of such an initiative, that claimant eventually opened up. The value of this kind of attention to detail was confirmed by some claimants. For example, Dev explained that:

When he heard that I was a bit depressed, he asked me if I were ready, and that I needed to be reassured before starting [the interview]. He offered me a glass of water. (…) After the interview ended he asked me if I really felt well, and added that, if it were just for him (…), he would have granted me international protection.

Third, a certain awareness of the existence of cultural differences emerged. According to Titti (decision-maker), when people coming from some specific countries are interviewed, she does not even use the word ‘gay’ because ‘it is equal to mention “the devil”’. Similarly, due to the cultural background of certain male claimants, she knows they may not feel able to look her in the eyes as that may be perceived as a form of disrespect, and not ‘a sign of a bogus SOGI claim’. Crucially, thanks to the collective discussion between all members of the territorial commissions before adopting a final decision (Sect. 6.3.1), these cultural aspects are often cross-checked by the most competent caseworker in SOGI claims (confirmed by Roberto, decision-maker, among others). Finally, as for the length of the interview, there were a variety of experiences. Very short interviews were reported (Wilson, focus group no. 3, northern Italy, was interviewed for only 1 h, and Gbona, for one hour and a half), alongside questionings lasting many hours (for instance, Dev was questioned for 6 h). Perhaps coincidentally, the longest and most detailed interviews saw the involvement of the most competent member of the commission in SOGI cases. Significantly, due to the complexity and the length of these interviews, Roberto (decision-maker) explained that, if he has advance notice, he prefers to start his working day with a SOGI claimant or to postpone these interviews when there is not enough time to carry them out properly.

Despite attempts to create a friendly environment for SOGI claims, some criticisms remain in Italy. As Giovanna (lawyer) confirmed, asylum claimants, including those fleeing homophobia and transphobia, face a sort of inquisitorial approach. In the legitimate attempt to investigate the position of the claimant, by asking for instance locations and dates, interviewers are sometimes eager to identify inconsistencies. The feeling of being under investigation was widely shared. For instance, Edoardo (focus group no. 3, northern Italy) noticed that ‘when I was telling her, she was like going to the Google to confirm so many dates (…) trying to get if this is true’. Other claimants stressed the irrelevant nature of some questions asked (Nice Guy, focus group no. 1, northern Italy) or the lack of mutual understanding, sometimes based on the differences in interviewer-claimant social and educational backgrounds (Chap. 7). Odosa, for example, could not work out what information the interviewer wanted from him, after he reported that he was caught by the police ‘for being gay’, thus forced to run away. His feeling of distress, mixed with incomprehension, was evident: ‘I don’t know, I don’t, he [the interviewer] might have explained his self but because of things that was in my head, I can’t just remember everything’. Equally, Nazarena (lawyer) reported that questions are too often aimed at ascertaining credibility and are not pertinent or related to the available COI. It is no coincidence that, in her view, many negative decisions are justified by saying that the claimant gave a ‘generic and contradictory account’, without explaining why that particular account is not consistent with available COI, as research has also shown (Busetto et al. 2017). For Giulio (LGBTIQ+ group volunteer), one problem is that territorial commissions rarely stop and postpone the interview in case of doubts, instead preferring to reject the claim.

Finally, although claimants have the opportunity to revise the minutes at the end of the interview, too often claimants simply feel obliged to sign, irrespective of their accuracy (Giovanna, lawyer). In fact, Water (focus group no. 4, northern Italy) alleged that the minutes were not read point-by-point, but only summarised.

It should be noted that most of these good practices and criticisms reflect local experiences and, consequently, the activity of specific territorial commissions. Yet, macro-level factors may hamper the general implementation of the positive procedural arrangements already in place. First, the necessity to assess a high number of asylum claims every day may lead to the lower quality of the process. As Titti (decision-maker) reckoned, with this imposed rhythm, ‘how could you summarise the life of a person in half an hour?’ Second, the 2017 reform introduced the obligation to video-record the interview so that it can subsequently be used for the appeal process, if necessary. Some of our participants expressed a positive opinion about this development, not least because it may avoid the risk of re-traumatisation (Silvana, judge). Instead, for other participants, this new procedure risks having a specifically negative impact for SOGI claimants and their willingness to open up on camera for reasons that include concerns about confidentiality of the recording within the asylum system (for instance, Mara, lawyer).

Moving on to the UK, past research has showed that interviewers often apply the inquisitorial approach of a criminal court when carrying out asylum interviews (Cohen 2002; Gill and Good 2019). Earlier research has also indicated a tendency on the part of caseworkers to refuse SOGI claims in the belief that any erroneous decisions will be corrected at appeal stage by tribunal judges (Miles 2010, p. 22). Yet worryingly, at the same time, a ‘deference of appellate courts to first decision and fact-finding’ has also been identified (Millbank 2009, p. 33). Consequently, whereas civil servants rely on the judiciary to be the ultimate arbiter, the judiciary in turn relies on civil servants to have made a sound initial decision.

In relation to this initial interview process, contrasting views emerged in our fieldwork. Starting with the existence or not of a friendly environment during the interview, Amber remembered that:

[The interviewer] came herself to get us (…) from the waiting area, she called me by my name properly and asked if it was the right way [to pronounce it] and I assured her that she is correct, and we walked to the interview room together. [She] was very friendly, welcoming and cheerful, and that made the whole interview process easier.

Even more importantly, Amber being a transgender claimant, the interviewer always referred to her as a female: ‘She didn’t make any errors because it just flow naturally and she just, labelled, put my gender as female, instead of asking what is your gender, so she knows already’. In turn, Janelle explained: ‘The person who interviewed me was very nice. So I felt very calm, because I was very frightened, I was shaking, and she said she will try to make it as comfortable as possible, which she did’. By contrast, Selim’s experience was less positive:

She didn’t look at me the whole time, she was just taking [notes], writing down what I was saying and she asked me to slow down, you know, when you are telling a story, you get excited and you know, and then she was like “no, slow down because I need to write it down”. And then you break down the story and then you lose the point and you are, like, what was I saying, it was just a mess.

The perspective of an interviewer is particularly valuable in this context. Emily, a decision-maker who told us she found SOGI claims ‘harder’ to handle, also said:

I get the file and go through it. (…) Everyone’s preparation is slightly different but generally you need to be sure that you’ve… every aspect of their claim, so that you can make a good decision at the end. (…) Every case is different. You have to make it personal, as personal as you can with them because they’re talking to a stranger about quite private parts of their life… and also they’re probably sitting there thinking this is the person making a decision on my life, I can’t really inform how they’re feeling (…). If you get someone who’s giving one-word answers, it’s very hard to try and decide on that basis, so you’re just trying to get people to talk, really. It’s quite difficult. (…) You’re asking people to relate very difficult periods of their life (…) They’re coming from countries where they don’t talk about it… so it’s very difficult to try to navigate.

In light of this challenge, Emily usually adopts an open approach:

I say “I’m happy to listen, if there’s anything you want to tell me, that’s fine”, I prefer people to just, free recourse of memory and then if they stop or if they’re struggling I say “is it just easier if I ask a direct question” and most of the time they say “yes, please”, and then I say specifically “I’m not looking for details of what they’ve done to you specifically”, you try and guide them, you say “I’m going to ask who they are, what they’re like, the location, days, things like that”, and then they usually calm down a bit.

Yet, other experiences show that direct questions on specific aspects of claimants’ lives, including in relation to religion, first sexual experiences or the involvement in the gay scene in the UK, are usually asked (Chap. 7). As Ibrahim A. explained, ‘she [the interviewer] wasn’t rude. (…) She didn’t like humiliate me with any word or anything, but she provoked me (…). She kept asking me about very detailed information which I don’t have’. Whereas for claimants these questions appear irrelevant or even offensive, Olivia (government official) defended such an approach at least indirectly:

If you were living in a country where it is illegal, you would expect somebody to be able to say how they felt about it [SOGI]. (…) And then maybe their first encounter, how did it happen, how did you tell your parents, people find out, were you scared, you know, it is illegal there, how did you go about it, things like that. But, you know, nothing sexual. (…) If somebody just says, “oh, yes, I was about 15, and yes I felt fine about it”, you would expect more detail. Like, I say to some people “do you remember your first kiss?” (…) they are going to remember details about it.

This problematic expectation may be greater in certain cases. Although it echoes an intersectional approach (Chap. 3), Emily (decision-maker) explained that there are

lots of variations in how people express their sexuality (…) so you have to take… the individual circumstance of the claimant into account. You know, their education background, their history, the country, the sort of the society that they grew up in. I mean, if for example you get someone from like a really middle-class background in Pakistan, then you would expect them to be able to talk a bit more freely about how they were living, because amongst middle classfamilies in Pakistan it is a little bit more accepting.

This approach is sometimes coupled with other general disputable attitudes, when SOGI claimants in the UK are not offered a ‘safe’ environment. As Edith explained:

The Home Office where you go to sign [in], it is not a very homely place, you just feel like it is stressing, the whole situation is stressing, so sometimes I even get sick when I am going there. So… they did an interview, but I said I can’t finish the interview because already I was sick [and] he wants for me to sign, I said I can’t sign it. (…) And they didn’t even offer me even a glass of water or anything.

Finally, in relation to the length of interviews, it is variable as observed in Germany and Italy, but so is the number of interviews carried out per day/week. Emily (decision-maker) reported the existence of a guideline suggesting a time of ‘2.5 to 3 hours’, which allows decision-makers to interview at least six people a week. Yet, as she pointed out, while trying to respect these indications, she does not ‘know how you’re supposed to assess someone in 2 h. Everyone’s different, so you have to try to do your best to get as much information [as you can]’.

In short, with a few exceptions mainly connected to the Italian (formal and informal) procedural practices, none of the systems under investigation may be described, at least in relation to the interview process, as entirely SOGI claimant-friendly. In particular, the risk of re-traumatisation is rarely considered, while an environment that is conducive to self-identification is absent. As Mariya, an NGO worker in Germany, pointed out, the ‘interview-hearing situation [is] simply an imposition (…) and a totally exhausting and re-traumatising situation for people who like to leave their story behind them, to experience (…) a new non-discriminatory life’. It is no surprise that, according to her experience as well as our data, claimants often perceive the interview as ‘a humiliation’, with negative implications also for their self-confidence, well-being and integration. Winifred (focus group no. 3, Bavaria, Germany) affirmed that she has ‘never felt safe’ during the asylum process. Sandra, also claiming asylum in Germany, chose ‘to forget, just to make [herself] feel better’. Rather than being an occasion for claimants to share the reasons why they believe that they risk persecution if returned to their countries of origin, interviews often focus largely on ascertaining claimants’ SOGI.

What is more, these dynamics may be further aggravated by the vivid influence of bias and prejudices of caseworkers in carrying out their responsibilities (Chap. 7, especially in relation to how these intertwine with stereotypes in SOGI claims). In all the countries under comparison, our data has pointed to the significant influence of bias in the way interviewers and decision-makers conduct interviews, probably owing to the unconfirmed assumptions on the ‘abuse’ of the asylum system (McFadyen 2016; Veglio 2017). In particular, the belief that many SOGI claims are fabricated is still strong, thus influencing the line of questioning (Rousseau and Foxen 2006). An example in this respect relates to the intervention of the Home Office’s presenting officer during a hearing (Upper Tier Tribunal observation, London, 2018): ‘Isn’t it correct that your claim for asylum came at a moment when you had exhausted all other possibilities of getting leave to remain in the UK?’. In the same case, the Home Office complained that the claimant was not active in the ‘LGBT community’. While this bias ostensibly derives from the inquisitorial approach emerged above, for some participants, its roots lie in the increased number of SOGI claims. For instance, Celeste, a social worker in Italy, explained that, in the past few years, SOGI claims were considered extremely vulnerable cases with few doubts about their authenticity but, more recently, territorial commissions are increasingly cautious to avoid granting refugee status to ‘bogus claimants’. This approach is particularly evident in the UK. According to Sean, a lawyer:

Our collective understanding and feeling is that the Home Office is a beast, it is a terrible, terrible beast and they will do everything they can to refuse cases, even the strongest cases where we will say to a client “we will win this”, and the Home Office refuse and you appeal and then you win.

For Joseph, an NGO volunteer in the UK, this attitude is the result of the previous Home Secretary Theresa May’s policy aimed to ‘create a hostile culture [that] when it comes to LGBT stuff it just becomes homophobic’. In this kind of situation, according to Siri, who claimed asylum in Italy, there is no room for taking into account the particular feelings experienced by many SOGI claimants during the interview:

At first you feel a pressure deep inside. (…) You have a hard time expressing yourself, sometimes there are words that you would like to let out [but] – because of that pressure – you simply can’t let out. Maybe also other people shake when they are speaking in front of the commission, and those who are listening have the feeling that you may not be telling the truth.

As explored elsewhere in relation to asylum claims submitted by women on the basis of sexual violence (Baillot et al. 2012, p. 19), one reason for this attitude is that caseworkers may be vulnerable to ‘case hardening’. Consequently, the intersection between a hostile climate and the pressure to deliver more with less resources may make it harder for interviewers and decision-makers to connect emotionally with asylum claimants, including those with SOGI claims, thus preventing them from carrying out an individual assessment as required by our theoretical underpinnings  (Chap. 3).

Other specific kinds of bias towards SOGI claimants also emerged. These include at least two different, but interconnected, beliefs in terms of ‘similar’ stories (Chap. 7) and of ‘countries of origin’. First, a bias seems to exist in relation to claimants who arrive from a particular country. In Germany, Barbara (lawyer) mentioned Cameroon or Pakistan in this respect, while Julian suggested that this bias may also be frequent in relation to Uganda: ‘My interviewer was really biased. I entered and he said “oh, you’re from Uganda, I guess you’re now going to tell me that lesbian story”. Before I could even start’. For many participants in Italy, SOGI claimants from Nigeria and the Gambia are usually viewed with greater suspicion (Giulia, Diego, Riccardo and Giulio, LGBTIQ+ group volunteers; Chiara, NGO worker; Celeste, social worker; Damiano, lawyer). Roberto (decision-maker), for example, did not hide the fact that, when a Nigerian male claimant alleges persecution on grounds of his sexual orientation, he needs to ask more questions ‘because many SOGI claims are fake’. As he said:

Since I’m here, I have only heard a Turkish national claiming asylum for being transgender (…) a Somali national for being homosexual, no one from Eritrea. It’s clear that the great weight of some nationalities [in SOGI asylum] makes you be more doubtful.

Following the same problematic line of reasoning, Daniele (decision-maker) added that it is ‘informally known’ that, for people coming from specific countries, it is particularly difficult to expose themselves as belonging to or being associated with SOGI minorities. In his view, this is the case for claimants coming from Mali, who may perceive this kind of request as a shame, but not for Nigerian nationals, who appear to submit such a claim ‘more easily’. According to Nazarena (lawyer), this attitude does not have negative implications only for the number of refusals, but also for the rate of recognition of refugee status in opposition to other forms of international protection (equally, Mara, lawyer; Maria Grazia, decision-maker). People from some countries appear to deserve refugee status more than claimants from other countries, irrespective of a thorough and individual analysis of the risk of persecution and the relevant COI (Sect. 6.5).

While preconceptions based on nationality or ethnicity are apparent, a lack of knowledge of SOGI, in general and SOGI from different cultural perspectives, has an equal negative influence in the conduct of interviews. Kennedy, who claimed asylum in Italy, pointed out that the interviewer ‘did not even know anything about LGBT’, while Damiano (lawyer, Italy) shared his impression that many caseworkers are ignorant of the number of LGBTIQ+ people there are in society. He remembered the case of a member of a territorial commission who believed that SOGI claims were ‘too many’ because they hear an average of five SOGI claimants per week, out of a total of 60 claimants. For Anna, an LGBTIQ+ group volunteer in Italy, the interviewers’ ‘lack of belonging’ to a minority group themselves may prevent them developing ‘empathy’ with SOGI claimants. A good example in this respect was provided by Julian, who claimed asylum in Germany:

He said “what makes you think Bayern [Bavaria] or Munich is interested in lesbians?” (…) “What makes you think you will even be safe here?” (…) Now, imagine you’re really stressed. Someone is already biased, you are feeling it and you have to go ahead and tell your story. You’re already frustrated.

The situation with transgender claimants is often more problematic. The NGO Transgender Europe (TGEU) has reported that trans asylum claims are often mistakenly treated as sexual orientation-based claims because of lack of knowledge on the part of the interviewer (TGEU 2016, p. 6) or incredulity if the claimant has not had hormonal treatment or surgery, with clear implications for the outcome of the interview. In this respect, Prince Emrah’s interview in Germany is illustrative, not least in terms of the distress caused to asylum claimants by the lack of a queer approach:

They asked me about my gender so much. They said to me, “do you want to change from your body? What do you want to change? Or do you want to cut? Do you want to, I don’t know, operations? In the future what will you do here?” With my gender…it’s like…why don’t they stop, I don’t think it’s important to ask. What I’ll be, I’ll be. It’s important I’m queer and I’m here. So I will, I will not cut, I will put my boobs, or not, it should not interest them. It’s my own life.

For the sake of completeness, it is worth noting that particular forms of bias have also emerged amongst other participants (Sect. 6.2) as well as asylum claimants themselves, thus leading to complaints about some procedural aspects of the interview. This is especially the case regarding the relationship between SOGI and religion, in cases where the interviewer has an obvious religious background. The case of Selim (UK) is illustrative of this:

I still remember my feeling in the interview, my interviewer is a covered woman, so she is Muslim, she is covered, and the questions the interviewer asked are very personal, and please don’t take it as an offence, one of the questions like what did you used to do when you get aroused or you get, how can I say like she is asking me if I used to masturbate how can I tell a covered woman that I masturbate. It was just, it felt uncomfortable (…). But then the question is (…) how far does she know about the gay culture.

In short, despite the improvements noticed in terms of training and, sometimes, of procedures, patterns of bias still permeate the asylum system of Germany, Italy and UK in different ways. Those caseworkers who were aware of their impact on the interview process and the decision, also recognised the difficulty in remaining totally uninfluenced by ‘external factors’ (for instance, Daniele, decision-maker, Italy; Vincenzo, LGBTIQ+ group volunteer, Italy; Bilal, presenting officer, UK). As Deirdre, UK, told her client in trying to explain the lottery effect prevalent in the asylum system: ‘Sometimes you will be lucky (…) and get somebody who is just nice at the Home Office’. We explore this lottery effect in terms of the assessment of SOGI claims in Chap. 7, while in the next section we investigate the appeal process for those who are not so ‘lucky’ and whose applications are rejected.

4 The Judicial Procedure

In all the countries we consider, asylum claimants may appeal against a rejection of their claim in accordance with international, European and domestic guarantees. In particular, it is worth remembering that the ECHR protects the right to an effective remedy (Article 13), which, when applied to asylum claimants, is often read in combination with the right to life (Article 2) and the prohibition of torture and degrading or inhuman treatment (Article 3). Contracting states, like Germany, Italy and the UK, thus need to ensure that all claimants have, at least, access to an independent authority that can review the risk of being returned to a country where they might be exposed to the risk of death or torture, degrading or inhuman treatment. In turn, if we look specifically at the Procedures Directive, member states ‘shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law’ (Article 46(3)), at least in appealprocedures before a court or tribunal of first instance. The importance of effective access to an appeal procedure is evident in light of some trends on the significant number of positive decisions against administrative refusals. For instance, according to Sabrina, an NGO worker in Germany: ‘You can see that in the judgments, which are loads in the administrative court, and where a large number of, I believe, 30% are then granted a positive decision’. This high success rate in appeals suggests that decision-making standards at the BAMF are poor and that the BAMF generally decides too many claims negatively (NDR 2019). Similarly, in the UK the fact that over two thirds of refusals are over-turned on appeal (ECRE, AIDA & Refugee Council 2019, p. 10) chimes with concerns from NGOs ‘about an apparent over-reliance by the Home Office on asylum appeals to correct straightforward failures by caseworkers’ (Freedom from Torture2016, p. 49). Yet, this right is ensured and enjoyed in different ways in Germany, Italy and UK, some of which may have a particular impact on SOGI claimants, as we explore in the following sub-sections.

4.1 The Appeal Setting

Starting with Germany, when an asylum request is rejected, a claimant can appeal against that decision before the relevant administrative court among the 51 administrative courts (‘Verwaltungsgerichte’) that deal with asylum matters. These appeals usually have suspensive effect, unless they are rejected as ‘manifestly unfounded’ or ‘inadmissible’ (on Dublin cases, Sect. 6.7). If the administrative court also rejects the claim, further appeals are possible but, in practice, only in exceptional circumstances (Evelyne and Anne, lawyers; ECRE, AIDA & Asyl und Migration 2018, p. 16). In fact, it seems that a second instance appeal is only allowed in case of procedural errors or ‘fundamental questions’ raised by the appeal rejection. According to Emma, NGO worker, and confirmed by Oscar, a judge, since most cases are rejected on credibilitygrounds, it is hard to argue for the necessity of a second instance examination. If the appeal before the administrative court is successful, the judge also decides on the kind of international protection to be granted (Chap. 4). Other than the length of the appeal procedure, which takes more than a year in some cases (for instance, Veronica and Julia), the essential obstacle to appeal is the short deadline for submitting the application before the administrative court. Indeed, if viewed in the broader context of asylum claimants’ conditions and bureaucratic delays, a deadline of 2 weeks is generally difficult to meet. For example, Ayeta (focus group no. 4, Bavaria) received her rejection letter when the 2 weeks were already over: ‘So I had to go to the Caritas where I stayed and they had to get me a lawyer, so the lawyer wrote to the Bundesamt [federal office]. There, they accepted the late appeal’. Noah (NGO social worker) explained that many claimants cannot read properly in German or experience feelings of shame, which may mean they are less likely to take action within the given time limits. Moreover, while it seems that BAMF notifies decisions through post without using recorded delivery, thus generating confusion in relation to the date of notification, in collective reception centres it is not unusual for letters to be lost or held up (ECRE, AIDA 2019, p. 9). In cases of unfounded or inadmissible claims, the deadline is even shorter, which amplifies these problems. As Kadir, an NGO worker, pointed out, in this process the psychological implications are often neglected: ‘It’s a week and you have to react. And first of all handle the shock that you have been rejected and then react quickly, find a lawyer and file an appeal’.

In terms of internal organisation, it is worth noting that some administrative judges in Germany consistently deal with cases relating to the same country of origin (for instance, Evelyne and Anne, lawyers; Court observations, Hesse, 2018). By encouraging expertise, this system has a great advantage according to Noah (NGO social worker): ‘You can figure out with time what arguments you can get through in court or what boxes you need to tick, what do they ask, what do they want’. Yet, being overexposed to SOGI claims coming from the same country may lead to ‘case hardening’, that is, as already explored above, a general unwillingness to believe claimants when stories have a range of similar elements or entail high degrees of violence and distress (Baillot et al. 2013). Moreover, this procedural arrangement does not seem to produce any degree of consistency across Germany. As Oscar, a judge, affirmed, ‘we may have judgments from different administrative courts on a nearly identical situation with different results. But it is quite normal in asylum’.

While in Italy an appeal against a refusal of an asylum request is allowed within 30 days of the notification of the negative decision, the 2017 reform radically changed the applicable judicialprocedures. The elimination of the second instance appeal on merits effectively means that asylum claimants can only submit an appeal against judicial first-instance negative decisions to the Supreme Court, which carries out an evaluation of procedural legitimacy, but not on the substance of the claim. This aspect of the reform was widely criticised (De Santis 2018) and worried a number of our participants, because it may be unconstitutional. In fact, although the Italian Constitution does not impose a two-instance process to have an appeal examined on the merits, this reform is clearly discriminatory in comparison to other judicial processes, which are all based on the possibility of a two-instance appeal plus a legitimacy review by the Supreme Court. Consequently, as our participants also pointed out (for instance, Nazarena, lawyer), people claiming asylum are treated differently to other parties in court cases, in potential violation of Article 3 of the Italian Constitution. Some judges, however, defend this aspect of the reform by arguing that the more appeals are granted and the claimant tells their story, the greater the risk that the claimant’s testimony will contain inconsistencies (Silvana).

In parallel, the 2017 reform introduced two additional novelties. From an institutional point of view, it set up specific sections in the main tribunals to cover only matters of asylum and migration. Although in practice a single judge follows the entire appeal procedure within these specialised sections, all asylum decisions are adopted collectively by three judges, in contrast to the previous system with only one judge deciding on each case. From a procedural perspective, there is the concrete danger that claimants are no longer heard live by the first instance judge, because the same 2017 reform introduced the mandatory recording of the main administrative interview. This recording should be used subsequently by the first instance judges to decide on the appeal. This aspect of the reform was criticised both as a violation of the fundamental right to defence and the right to asylum (Nazarena, lawyer), as well as removing the scope for judges’ empathy for, and understanding of, SOGI claimants (Vincenzo, an LGBTIQ+ group volunteer; Palermo 2018). Moreover, as Damiano explained, this procedure is an evident additional obstacle to a safe environment:

Besides someone [the interviewer] they never met before, they see a camera, a tape recorder, and are told “This recording will be seen by the judge, by the lawyers” (…) They will be afraid that someone will see this video-recording.

In addition, there is no certainty that judges will watch the video-recording of the interview, especially in light of the limited amount of time available (for instance, Nazarena, lawyer). Some Italian courts resisted this reform and have continued offering a hearing to claimants, whether or not the video-recording of administrative interviews was available (for example, Filippo, senior judge). According to Silvana, a judge, for those claims where credibility is an issue, such as SOGI ones, hearings with claimants may be nonetheless necessary in order to allow judges to form an opinion on whether or not the claimant is credible. Yet, Silvana also explained that, in line with the jurisprudence of the CJEU, there is no need to hear the claimant, including in SOGI cases, if judges have all the necessary evidence to hand, such as a detailed transcript of an interview carried out well by the territorial commission. This judicialdiscretion to hold a hearing or not introduces an element of ‘lottery’ in the appeal system (Cristina, UNHCR officer), especially when claimants were not adequately interviewed in relation to SOGI elements or were not able to reveal the real reason for fearing persecution (Livio, lawyer). As Filippo, a senior judge, affirmed: ‘Sometimes holding a new hearing is not necessarily a guarantee of recognition of international protection or of a better understanding of the story. Yet, it is certainly a clear assumption of responsibility [by the judge]’. In any case, as Silvana effectively summarised, even with the new system, the competence of the judge in asylum matters is always the key to a fair appeal procedure. Due to the 2017 reform, the new specialised and collective decision-making mechanism may foster this expertise.

Finally, as anticipated in Sect. 6.1, the UK system allows an appeal against negative decisions to the First Tier Tribunal but there are restrictions on further appeal stages. Claimants whose case becomes ARE may be able to submit a fresh claim but, given the elements that emerged above, our participants are cautious about the real prospects of success in such cases. According to Sean, a lawyer, the way ‘fresh claims’ are usually treated is clearly intended ‘to stop people having a further appeal’, as both the Home Office and judges rarely agree that a claimant has a fresh claim. The long time that the appeal process takes was widely criticised by our participants (for instance, Ernest, judge), with the entire asylum procedure in the cases of Daphne and Junio taking, respectively, more than six and eight years. An important factor characterising the UK appeal system is the presence of the Home Office Presenting Officer or legal representative at most appealhearings, which often contributes to the hostile atmosphere encountered in UK hearings (Braganza 2019). As a participant in our surveys pointed out:

The UK Home Office representatives are often hostile, implicitly or explicitly homophobic, and aggressive. Even if sexuality has been accepted prior to appeal, there can be questioning about credibility, about relationships, etc. For example last week I was at an appeal where (…) the [Home Office presenting officer] also repeatedly told the appellant to “speak up” and “stop mumbling”. The appellant was a 21 year old lesbian (for whom English was not first language) who had escaped forced marriage (imposed to try and “cure” her of being a lesbian) and sexual violence (S110, NGO volunteer, UK).

The awareness of some UK judges of the need to create a ‘safe environment’ at the appeal stage is valuable in this context. Adrian, a judge, clearly supported the need ‘to create an atmosphere where [SOGI claimants] will feel able to talk about it and in some cases that may mean that we will ask for a closed court and so forth’. Reassuringly, the reason given for this was not SOGI prejudice but claimants’ needs. As Adrian further explained:

There should not normally be closed courts because being gay is not anything to be ashamed of in any way but some people feel incredibly sensitive and… also if they are not used to the British system they may feel less confidence in how things work, so judges have to be quite sort of open and creative in these sorts of cases.

With this overview in mind, we now look at how members of the judiciary are prepared for deciding asylum cases. With the exception of the UK, judges are not specifically selected for asylum or immigration purposes. In Germany and in Italy they simply follow the ordinary selection process for joining the judiciary, while in the UK they are appointed through the Judicial Appointments Commission and must meet the statutory qualification necessary for sitting in the Immigration and Asylum Chambers. One important question thus arises: are there any specific procedural arrangements or training for judges deciding on SOGI cases?

In Germany, there is no evidence of specific procedures for selection or training of judges dealing with SOGI claims, as asylum is only one of the areas under judges’ mandates. This was confirmed by a judge, Emilia, who explained that the judicial body tasked with the training of judges offers educational sessions on a variety of subjects, but no training on SOGI asylum had been organised until then. Enrolment on training courses is, in any case, voluntary. The lack of specific training was commented on by lawyers (for instance, Elias and Barbara), but judges themselves may not see the need for training. Oscar, a judge, stated: ‘The interest in the judiciary would be rather low. After all, there are very few homosexuals who make asylum applications’. Besides such a biased assumption, this appears more worrying when we consider that university law studies generally do not cover immigration and asylum as a compulsory subject.

In Italy, by creating specialised asylum sections in some tribunals, the 2017 reform aimed to ensure that judges who join these units have specific competences in migration and asylum, as well as in foreign languages to communicate with asylum claimants in case of hearings. Yet, many participants asserted that, in practice, there are no guarantees that only experienced and trained judges will be selected (for instance, Mara and Nazarena, lawyers), especially when there are no judges interested in this field of law. In fact, Filippo, a senior judge, reported that in his tribunal it was impossible to find a sufficient number of judges to set up the new specialised section. Consequently, as Filippo explained, the youngest judges were appointed simply by virtue of ‘their knowledge of foreign languages’. In other tribunals, judges working on family issues are usually called on to cover asylum and migration issues as well (for instance, Silvana and Maurizio, judges). In relation to both newly appointed judges and judges working on family issues, there is no evidence of any intensive training on asylum, including SOGI asylum. Yet, at a more general level, it seems that in recent years specific training on different aspects of asylum, including SOGI claims, has been organised by the national judicial training body in cooperation with the UNHCR (Silvana, judge). However, judges enrolled on it on a voluntary basis, so there is no guarantee that all judges working with SOGI claimants will have attended this training. Perhaps surprisingly, if compared with the German case, specific training is felt as a priority by some judges, like Filippo (senior judge), who see their role as ‘not appropriate to deal with such a complex area’, one that in his view requires other, non-legal, expertise to deal with claimants’ suffering and trauma.

While there is general selection for judges who work with asylum claimants in place in the UK, there is no specific selection for dealing with SOGI claimants. The Tribunals Committee, which is the body with overall responsibility for the training of tribunal judges, may organise specific training sessions in cooperation with relevant NGOs. For example, participants mentioned asylum training with EASO (Alex, judge) and a one day-training session on SOGI issues, including asylum, with Stonewall (Ernest, judge). Adrian, a judge, reported that cycles of one-day training are organised on different subjects and are compulsory for all judges, including a training on transgender issues held in 2017, whereas others are attended on a voluntary basis. Yet, according to other participants (for instance, Bilal, presenting officer; Allan, lawyer), judges do not appear adequately trained in SOGI asylum, nor in SOGI issues more generally. This was confirmed by the fact that some of them ignore the existence of rules in the Equal Treatment Bench Book or the Home Office’s SOGI guidance. Some examples of the impact of the lack of comprehensive training of judges on the judicial decisions reached in SOGI cases, mixed with personal bias and prejudices, will be explored in Chap. 7. That impact is also evident in the way hearings are conducted.

4.2 The Conduct of Hearings and the Adoption of Decisions

Looking now at the ways in which hearings of SOGI claimants are carried out as well as the decision-making process in tribunals, our data provides a mixed picture with negative experiences coupled with positive attitudes that are more in line with a human rights reading of the Refugee Convention. Owing to the different characteristics of each judicial system in question, a country-by-country investigation is particularly appropriate here.

To begin with Germany, our data shows the existence of encouraging decision-making processes along problematic lines of questioning. Examples of promising approaches include the attitude adopted by a judge during a hearing (Court observation, North Rhine-Westphalia, 2019), where she carefully introduced herself and explained the entire procedure and its consequences to the claimant. As Noah (NGO social worker) explained, when a case is well prepared, ‘these are the moments of joy, that the judge opens the file, checks the personal data, closes the file, says: “That’s clear” and he grants it. Then (…) no further check is made’. More importantly, both judges interviewed in Germany (Oscar and Emilia) adopt an approach that seems, in principle, to conform to the notion of refugee enshrined in the Refugee Convention. According to Oscar, ‘two things always run in parallel’, namely the research and the evaluation of relevant COI (Sect. 6.5) and the examination of the specific circumstances of the claimant. These are investigated by reading the transcript of the interview(s) prepared by the BAMF, which also serves as a basis for the choice of questions to be asked during the hearing. As Oscar pointed out, these questions aim to ascertain the credibility of the claimant or aspects that were not clarified at the BAMF interview. These include basic information, such as the reasons for fleeing one’s country and the individual process leading to the decision to escape. Oscar emphasised that, although administrative decisions are often based on the lack of credibility, they do not provide appropriate evidence that all efforts were made to clarify the claimant’s account, which is ‘bad work from the Federal Office’. This might also be why, during most hearings observed in Germany, claimants were asked several questions to clarify apparent inconsistencies in the decision taken by the BAMF. Sometimes questions did not appear focused on claimants’ SOGI, but were mostly aimed at checking the plausibility of the story (for instance, Court observation, Hesse, 2018). Other times, questions moved on to relationships, first sexual encounters, visits to gay bars, as well as intimate aspects, in the attempt to assess the credibility of claimants’ testimonies (for instance, Court observation, Hesse, 2018). Therefore, overall judges do not seem to favour an open narrative (with some exceptions, for instance, Court observation, Hesse, 2018), even though this approach is more consistent with a SOGI-friendly asylum system (UNHCR2012a, para. 60). Yet, significantly, by confirming the reliance on the individual circumstances of the claimant, another judge – Emilia – emphasised the role of COI. In this respect, she investigates whether or not in the claimant’s country of origin ‘possible and reasonable’ forms of protection exist, or whether the required level of persecution – curiously identified as a ‘gradual concept’ (not an isolated understanding however, see Danisi 2019) – is reached, taking into account the personal circumstances of the claimant. From a negative perspective, some disrespectful attitudes to claimants were witnessed. For instance, in a Court observation in Hesse, in 2018, the judge failed to address the claimant directly and only addressed the lawyer and the interpreter (also Court observation, Hesse, 2019). Moreover, when additional evidence was produced at the appeal stage, the new material was analysed with suspicion. This was the case in another hearing (Court observation, Hesse, 2018), where the judge scrutinised a letter provided by a support group and asked detailed questions in a way that seemed to question the letter’s authenticity. Finally, it is noticeable that, although the BAMF is expected to attend hearings, it is rarely present (except for one Court observation – Hesse, 2019 – out of ten observations carried out in Germany), while on some occasions there were no witnesses heard (for instance, another Court observation, Hesse, 2019). The duration of hearings appears overall very variable.

Experiences in Italy were also mixed. Here, judges are under considerable pressure to decide on a substantial number of appeals against territorial commissions’ refusals in a (much criticised) new time frame of 4 months (Various 2018). During observations carried out in tribunals in 2018, it was noticed that several hearings a day were usually scheduled with the same judge, one every 15 or 30 min. In this respect, Maurizio, a judge in one of the newly-established specialised sections on immigration and asylum, referred to an average of 60 new appeals every week and an average of 20 or 25 cases decided each week. No specific procedural arrangements emerged for SOGI claimants, and in general the approach adopted in these appeals depends on the individual judge appointed. According to Filippo, a senior judge, his usual approach with asylum claimants is to start by attempting to reassure them and to make sure that they understand that it is essential ‘to be precise and say the truth’. Then, claimants are asked if they confirm the account shared at the main interview or whether they want to clarify or specify some points. As Filippo explained, he tends to let the claimant talk, rather than ask direct questions about partners or feelings during relationships. It happened that, in some cases, claimants directly signalled problems with interpretation or the transcript of the main interview, thus clarifying inconsistencies emphasised by the administrative body. In other experiences, less open lines of questioning emerged. For instance, Maurizio (judge) told us that he usually asks questions to verify unclear or doubtful aspects of the main interview, often with the aim of assessing the credibility of the claimant. As he explained, in this process there is room to provide new evidence and, as has happened on occasion, a claimant may put forward SOGI grounds for persecution for the first time at this stage.

It is worth noting that, in Italy, the judge in charge of an asylum appeal may delegate the conduct of the hearing to an honorary judge (‘giudici onorari’, GOT), who then provides a transcript that the judge in charge of the case uses to discuss the final decision, sitting in a composition of three judges. The choice as to whether to delegate the hearing is based on a number of factors. Our participants mentioned that, given the high number of appeals, this choice is sometimes inevitable. In some tribunals, instead, this is a matter of practice, irrespective of the kind of claim at stake. Yet, as Maurizio explained, in light of credibility issues, he tries to hear SOGI claimants himself as much as possible. In fact, as he put it, ‘the perceptions gained during the hearing are invaluable and cannot be transcribed’. Importantly this support staff may not have received appropriate training. In this respect, Filippo (senior judge) mentioned that some training is provided to GOT by simply having them assist a number of hearings of asylum claimants by a judge.

Disparities between hearings held by support staff and judges were evident at our observations in tribunals in Italy. Two hearings, observed in the same tribunal in northern Italy in 2018, are illustrative in this respect. A first hearing, which was indirectly observed thanks to the support of the interpreter (Chap. 2), was held in a private room with the sole presence of the (male) claimant, the interpreter, the lawyer and the (female) GOT. Worryingly, in terms of the rigour and therefore the fairness of proceedings, it lasted less than 15 min. The GOT mainly asked the (non-professional) interpreter to swear and, in a perfunctory manner, as to whether the SOGI claimant wished only to confirm the declarations made at the main interview or wished to add something about his fear of persecution. No evidence was requested, except for a single question on the claimant’s integration in Italy. A second hearing with a (female) GOT, which was directly observed by us in a private room with the presence of the (male) claimant, the (non-professional) interpreter and the lawyer, showed a slightly more positive, though still problematic, approach. With no introductions of any kind, the GOT asked questions on specific circumstances reported by the claimant at the main interview. These questions were related to the family’s lack of acceptance of his homosexuality, the claimant’s relationship with a partner in his country of origin (including dates), the circumstances of his escape from Nigeria, the separation from the partner after the journey by boat in the Mediterranean, and the level of integration in Italy, which was deemed ‘essential’ for a positive outcome of the case. Some of these questions were irrelevant to an assessment of the fear of persecution, being based on minor aspects of the travel towards Italy, or inappropriate from a SOGI perspective. For example, by relying on a stereotyped notion of SOGI identity in contrast to a more nuanced analysis (Chap. 3), the claimant was asked ‘are you truly homosexual?’ and whether or not he had had any homosexual ‘affective’ relationships after his arrival in Italy. An equally problematic approach was discernable in relation to evidence (Chap. 7). In particular, the GOT in this hearing wished to be reassured that the support group that wrote a declaration for him was one dedicated to supporting mostly, if not only, SOGI claimants. Allowing the intervention of one of the group’s representatives, she asked how they can ‘certify’ that only ‘gay claimants’ are supported. The influence of bias in the GOT’s questioning here is evident.

A more sensitive approach was perceived in a third hearing, observed in a different tribunal in northern Italy in 2018, where the (male) claimant was not heard by a single judge but by a panel composed of three immigration and asylum judges (two women and one man). Importantly, no sexual-related questions were asked in this hearing. After starting the hearing by verifying that the claimant did not need clarification on any points, the judges asked for further information relating to aspects of the claimant’s personal circumstances (as reported at the main interview) that appeared contradictory. Overall, the hearing appeared to focus on identifying minor inconsistencies in the claimant’s story, rather than establishing the credibility of the claimant. Examples of questions included ‘How could you forget to leave the door open while spending time with your partner?’ or ‘In what moment of the day your neighbours discovered you?’, both aimed at finding reasons for inconsistencies emphasised by the administrative body. At the end, the transcript of the hearing was read point by point aloud by one of the judge and, although it was checked in Italian, some errors were corrected.Footnote 10

Following the Italian 2017 reform, once judges have all the necessary material at their disposal and, if deemed necessary, the hearing has taken place, a decision is made. Analysis of the available case law (Danisi 2020) and participants’ views indicate that too often judicial decisions are formulaic, in particular, COI is ‘copied and pasted’ from one decision to the next. According to Filippo (senior judge), the new collective decision-making procedure is to be welcomed in this respect. Judges are required to report every case to their colleagues for a joint discussion with references to case law and relevant COI. As a result, the overall quality of decisions improves and the influence of individual bias is better controlled, as we saw above in relation to administrative caseworkers, leading to a fairer Italian judicial asylum system also for SOGI cases.

Data on the UK is also rich. No specific procedures are in place for SOGI claimants making an appeal in the UK. While our approach would suggest the adoption of specific individualised measures (Chap. 3), according to Harry (senior judge), such arrangements would be unnecessary because ‘LGBT isn’t thought of as anything unusual or special really’. On judges’ approach to SOGI asylum cases, some of our participants gave positive accounts. According to Bilal (presenting officer), almost all judges now introduce themselves and explain carefully every aspect of the appeal, while trying to reassure claimants throughout the hearing. In this respect, the case of Irma is illustrative. At her hearing, she did not have a lawyer and the questioning by the Home Office representative upset her to the point of crying. Showing a sensitive approach, the judge told her ‘I will be your barrister and your solicitor because, why, you don’t have a solicitor to help you… and I will’. In turn, Lutfor, who faced hard questioning from the Home Office representative and expressed fear, explained that the judge reassured him by reprimanding the presenting officer for their inappropriate manner. Less positive experiences were shared by other participants, including Gary and Debbie (NGO workers), who found that the appeal system is not ‘genuinely impartial’. Christina, for instance, explained that they never had the opportunity to talk during the hearing, even to correct errors made by the judge about her story. Judges also seem to have limited time to prepare before the hearing, owing to the lack of cooperation with the Home Office. In this respect, as Harry (senior judge) confirmed, judges usually receive the claimant’s bundle only the day before the hearing:Footnote 11

It can be very frustrating… (…) And it is disgraceful, it shouldn’t happen, they have got loads of time and some people just fail to do so. Fail to file and serve their documents. (…) But the barrister wants the case to go ahead anyway… and of course you know if you have, if you have dealt with one Cameroonian asylum which is based on LGBT, you know what the issues are anyway, so it is hardly likely that anything startlingly new is going to come out of the documentation. Because they normally just turn on credibility.

Overall, as Ernest (judge) said: ‘I’m personally quite unhappy about how inconsistent the judiciary is’. This inconsistency in the decision-making process is likely to lead to inconsistent outcomes, as Chap. 7 will explore in detail.

Inconsistencies and unfair treatment may also be attributable to the Home Office representative at the hearings. It is worth noting that in 2019, the ICIBI launched an inquiry and call for evidence addressing ‘what is working well and what is working not so well’ in the work of Home office presenting officers (ICIBI2019). It is true that, sometimes, the Home Office is unrepresented (for instance, Tribunal observation, Manchester, 2018) or unprepared (for example, Tribunal observation, London, 2018, where the Home Office presenting officer asked the judge for time to read the relevant papers). And this is generally due to capacity and resourcing issues. Yet, when the Home Office presenting officer or barrister is present, their manner towards the claimant could often be described as sceptical or incredulous, unsurprising given the inquisitorial nature of the judicial system, as emerged during the hearings observed in 2018. Judges and Home Office presenting officers recurrently question the nature of support organisations, aiming to verify whether they ‘accept’ only LGBTIQ+ people and ‘certify’ asylum claimants’ SOGI (for instance, Upper Tier Tribunal observation, London, 2018; Tribunal observation, Manchester, 2018). What is striking in all these direct experiences is that, in most cases, the judge did not intervene to prevent inappropriate questions to the claimants. Indeed, on occasion, judges gave the impression of taking the Home Office’s side. For instance, in a First Tier Tribunal observation in London (2018), the judge requested clarifications on the streets where gay clubs were located, and asked what was the difference between ‘gay venue and gay bar’. In this kind of dialogue, the imbalances of power felt by claimants become evident. For example, during that same observation, when one of the witnesses mentioned that they had met the claimant to look for a Christmas tree, the judge asked ‘I just have one question out of straightforward interest, from your statement, what is camp about Christmas?’ The sense of relief when the Home Office does not adopt this kind of approach was well expressed by Janelle:

After court I felt a relief. I was just actually happy I don’t have to say anything, because I was worried on my way to [tribunal location], my belly was hurting. (…) I am like “oh my God, they are probably going to ask me a lot of questions”, I was preparing myself mentally, physically to answer questions, and when I got there and I spoke to the barrister, the barrister says Home Office has nothing to ask you. I took a deep breath and I said, “Amen”.

Coming to the adoption of decisions in the UK, the approach of a judge, Adrian, is instructive. To decide on an appeal, he explained that he first looks at the declarations of the claimant at the main interview, taking into account the quality of the interview. Then, he examines witnesses’ statements and verifies inconsistencies and the plausibility of the claimant’s story. He also looks at the claimant’s social life and what ‘benefit from living in a free society’ they have had. As he explained, a balanced approach is required. For instance, ‘in South Asian community, probably more Bangladesh perhaps than India… there is social disapproval, so there may only be a relatively small group of people who they can socialise with. I mean, you just have to be aware of things like that’. Although in apparent tension with the cultural anti-essentialist approach we adopt in our analysis (Chap. 3), Adrian’s statements reflect an effort to embed his decision-making practices in a degree of cultural awareness. Adrian said he would not give weight to evidence such as participating in gay Pride events or submitting explicit videos: ‘if you were making that kind of material in a country where you could face the death penalty (…) it is completely insane’. Furthermore, he pointed out that ‘no one has any ability to know a person’s sexual orientation, the only relevance in our field is if that is the claimed cause of persecution’. However, despite the generally recognised reliance on objective evidence, other factors may influence some judges. For instance, although a claimant had permission to appeal, the judge in question affirmed that, irrespective of the number of witnesses and the evidence provided, he could not ignore the fact that two judges had previously found the claimant not credible (Tribunal observation, Manchester, 2018). The overall fairness of the process is therefore seriously undermined.

Before moving on to other procedural aspects, a final point should be stressed. Like caseworkers, judges bring their own attitudes, experiences and values to bear in decision-making. Previous research has found that, in light of their very limited or absent training on asylum SOGI issues, bias and prejudices may have a stronger influence on the judiciary than at administrative level (Jansen 2014, p. 45). As Chap. 7 will further explore, too often disbelief is the starting point in asylum claims and this is reflected in the way hearings of SOGI claimants are carried out (Nana, focus group no. 3, Bavaria, Germany; Evelyne and Anne, lawyers, Germany; Thomas, NGO volunteer, Germany). For example, during a Court observation (Hesse, 2018) which involved a claimant applying for protection for the second time, the judge made it clear that he did not believe him and potentially intimidated the witness by telling him that he could receive a 12-month prison sentence if false information were provided. The existence of this kind of biased preconception is confirmed by the words of Oscar, a judge in Germany: ‘And the more you have listened to asylum seekers from a country, the sooner you will notice whether this really happens [claimants using fake stories] or if that is more likely. These are stories that are passed on from asylum seeker to asylum seeker and which they always try to use here [in court] So, typical stories’. Similar examples were also found in Italy (Maurizio, judge) and in the UK, where Bilal (Home Office presenting officer) said: sometimes ‘evidence doesn’t seem to persuade some judges at all’. Such bias in hearings may have racist undertones. In this respect, Joseph, an NGO volunteer in the UK, noticed that: ‘if you take lots of witnesses to court, if they are White and middle-class, they are believed.’ He described a case in January 2019 where a Pakistani couple gave evidence to support two Pakistani claimants: ‘The judge said they weren’t worth much [as witnesses]’.

Bias on the part of asylum judges may lead to insensitive and unfair reactions. For example, Filippo, a senior judge in Italy, made it clear that some colleagues are not willing to hear asylum claimants because they sell each other ‘absurd stories’, especially when they arrive from particular countries, like Nigeria. Another example is that of a judge responding to a claimant facing trauma generated by his journey to Europe (Chap. 5):

My client (…) said, “There was water everywhere”. And then the judge said: “Yes, I’m sure you were on the sea”. And he said: “Yes, in the boat the water came in”. And then it went on, [saying] that he sleeps badly because of that and always dreams and his friend or brother, I do not know, has died. And then the judge says: “Yes, I sleep badly too” (Evelyne and Anne, lawyers, Germany).

SOGI-specific bias has also emerged. This tends to be connected with the lack of knowledge of SOGI experiences and concepts, something that is illustrated by cases where the judge does not understand the concept of bisexuality (Elias, lawyer, Germany) or the difference between sexual orientation and gender identity, for example, by asking a claimant ‘Are you gay or a trans woman now? What is it now? You have to commit yourself!’ (Noah, NGO social worker, Germany). During one hearing in Germany (Court observation, Hesse, 2018), a judge stated openly: ‘this story is so deceitful, it’s unbelievable! [The claimant] has five children and tells me that he is gay all the way! That is unbelievable!’ Claimants’ desires and interests are totally neglected or misunderstood in such cases. In fact, as Emroy (focus group no. 1, Hesse, Germany) said, ‘my son is because I want a child, and which gay person or which human doesn’t want a child?’

Insensitivity in hearings sometimes becomes open homophobia or transphobia. During the hearing in Italy of a lesbian claimant from Nigeria, Mara (lawyer) was explaining to a senior judge that the claimant had been discovered with her girlfriend and seriously beaten. Mara made it clear that the claimant was traumatised and had been through a difficult recovery and an equally difficult pathway to self-acceptance. At that point, the judge intervened saying ‘well, that’s not really a trauma…’ and pointed out that she (the judge) would have reacted in the same way as the alleged persecutor of the claimant if she had found her young daughter in bed with a girlfriend. While this example confirms the still widespread lack of empathy amongst decision-makers, the sexuality or gender identity of the judge is no guarantee of an impartial hearing. According to Allan (lawyer, UK), gayjudges ‘are very much imposing their own gaydar or lesbian-dar or whatever you call it-dar on somebody. They are sitting there and they might be gay or lesbian themselves, but they are very much judging the person’.

In sum, subjective factors may still influence decision-makers, both at administrative and judicial level, thus shaping the way interviews and hearings are carried out. For this reason, the availability and the correct use of objective information on countries of origin becomes even more essential in SOGI claims. In the next section, we thus turn our analysis to COI.

5 Country of Origin Information

As many of our participants emphasised, COI is an essential element for the evaluation of every asylum application, irrespective of the grounds of persecution. According to the definition of a refugee, individuals who fearpersecution need to demonstrate that the protection available if returned to their country of origin, if any, is insufficient. Therefore, other than assessing the individual circumstances of a claimant (Chap. 7), decision-makers need to verify whether those circumstances are consistent with the information available on the country of origin in question. Inevitably, the sources and the quality of this information become crucial to the grant or refusal of refugee status or any other form of international protection. In this respect, SOGI claims pose particular challenges to decision-makers, primarily because most COI sources do not have specific information on the treatment of SOGI minorities (Jong 2008) or, if they do, relevant data ‘privileges certain voices over others’ (McDonald-Norman 2017). In other words, against the principles underlying our theoretical approach to SOGI asylum (Chap. 3), the risk of homogenisation of SOGI minorities is very high. Indeed, no obligation to collect SOGI-specific COI exists at EU or national level, although the increasing role of EASO in the collection of information on refugees’ countries of origin has progressively led to the gathering of evidence on SOGI minorities in a more consistent way (EASO2015). Yet, as Helena (EASO staff member) confirmed, this material has not reached a satisfactory level of detail and completeness. It is therefore no surprise that significant disparities emerge not only between the countries under investigation, but also within each country, considering the lack of guidance for, or the inconsistent material available to, decision-makers. In this area the UK appears to play a significant role with the potential to influence decision-makers in Germany and Italy, as well as in other European countries.

In Germany, the BAMF includes specific departments working on COI and producing background papers, sometimes for internal use only, and has set up a specific database to support decision-makers’ assessments.Footnote 12 This database, however, does not hold extensive information on SOGI. Moreover, when publicly available, relevant sections often focus on sexual orientation issues, in this way marginalising transgender minorities (Huebner 2016, p. 247). Although, during the appeal, courts may request specialist reports from experts, there is no guarantee that SOGI-specific reports are commissioned. Given that relevant material in foreign languages is not generally consulted (Kalkmann 2010) and Google is used to find the ‘best article’ that confirms the decision-maker’ view on a specific case (Gartner 2015, p. 14), there are also serious doubts about the fairness of the assessment of SOGI claims in Germany. Yet, according to the response provided by the German government to a parliamentary request, a less instrumental and more objective use of COI is emerging as decision-makers are said to draw on reports by the BAMF, the EASO, the UNHCR and, more generally, the UN, as well as on cases decided by administrative courts (BMI2019, p. 14). This broad and contrasting picture on COI was confirmed by our participants. While Evelyne and Anne (lawyers) defined the BAMF’s reports as accurate but ‘cautious’, Elias (lawyer) and Thomas (NGO volunteer) emphasised that their confidential nature prevents open consultation. In light of these pitfalls, it is promising that judges, like Oscar, usually consult a variety of sources on the relevant country of origin, other than BAMF’s relevant reports, for reaching an informed decision:

I inform myself about the respective country (…) in a very detailed way and the more detailed the better. That means that I also watch a lot on the Internet and I also read many reports, newspaper articles, the Foreign Office, Amnesty International (…) they write country information and individual information. (…) Most of the time, the truth is, I estimate a lot, so somewhere in the middle. Amnesty always writes “all very bad”, Foreign Ministry writes “everything is fine”. And probably it will then hit somewhere in the middle.

As Oscar also pointed out, finding information on some countries may require greater research, as is the case with Jamaica, the country of origin of only a small number of asylum claimants in Germany. Gisela (lawyer) confirmed this disparity of information with the example of Uganda, for which information is usually available, in contrast to Somalia, for which there is little accessible material. While she relies on the UK Home Office’s COI for her clients’ appeals, which is deemed ‘much more accurate and up to date’ than the BAMF’s reports, in her experience, many decision-makers usually only use sources available in German.

As anticipated, a further problem is that decision-makers in Germany often read COI in a way that supports their own position in an inappropriate way. Kadir (NGO worker) provided two different, but equally illustrative, examples in this respect. In one case, a worrying parallel between members of a sexual minority and murderers was made. So, in light of the difference between rural and metropolitan areas in Pakistan, a gay claimant from that country was told ‘you could have fled to Karachi. Karachi has about 20 million inhabitants, even murderers can hide there’. In another case, following the rejection of his asylum request, a claimant was given a country report on the economic development of his country and the increasing availability of employment options, although he had not applied to stay in Germany on economic grounds but because of SOGI persecution.

The situation in Italy is similar. The Italian asylum system does not have a department that gathers evidence on countries of origin, if we exclude the unsuccessful attempts of the National Commission of Asylum to draft national COI (among others, Roberto, decision-maker). It is thus no surprise, in line with past research (Busetto et al. 2017), that most participants stressed a lack of detailed information on the treatment of SOGI minorities in their countries of origin (for instance, Maria Grazia, decision-maker). Consequently, the use of a variety of sources was reported, suggesting that, apart from perhaps the UNHCR representatives, decision-makers had their own approaches to finding and consulting relevant COI. For instance, Roberto (decision-maker) usually looks for information using Refworld and Google. Daniele (decision-maker) consults EASO material, NGO reports, and the jurisprudence of the ECtHR and CJEU. In Daniele’s experience, if no information is available, the decision may be suspended for the time needed to collect appropriate material. In his view, in light of the expected reform of the CEAS (Ferreira 2018; ILGA Europe 2016), EASO reports will probably become the primary source of COI in Italy in due course. In addition, Titti (decision-maker) referred to the UK Home Office’s COI, as well as non-institutional online databases such as Asilo in Europa and Melting Pot Europa. She also emphasised the importance of consulting media from the claimants’ countries of origin, because these may provide an understanding of the social environment and the discrimination prevailing in their communities. Here Titti gave the example of Ukraine, where the President often states that SOGI minorities are protected by law and a Pride march had been organised but where negative attitudes towards SOGI minorities remain prevalent. By consulting a survey carried out in Ukraine, Titti established that more than 50% of Ukrainian citizens (still) believe that homosexuality is ‘an incurable disease’, thus raising doubts about the existence of a ‘safe’ social environment for SOGI minorities. As for the COI used specifically by judges, the collection of case law on asylum applications from specific countries carried out at national level by the self-governing judicial body (‘Consiglio della Magistratura’) was widely reported (Titti, decision-maker; Maurizio, judge). According to Nazarena (lawyer), while only some judges use diverse COI sources similarly to administrative decision-makers, most of the time in both administrative and judicial decisions, as well as in appeals prepared by lawyers, COI sources are not specified. When they are specified, sources are inappropriate (for instance, travel guides like ‘Viaggiare sicuri’) or insufficiently specific (for example, Amnesty International).

If we look at the responses provided by judges in Italy, approaches to COI depend on individual background and training. Silvana referred to Refworld and COI-net as main sources, arguing that EASO material is often too broadly framed to provide SOGI-related information. Filippo mentioned an online migration network of lawyers, academics, judges and public administration officers providing, among other material, information on countries of origin called ‘Malta’. Filippo also mentioned travel guides, but emphasising that ‘working with COI can be an endless job, [because] one can never be sure about their trustworthiness’. He observed that some judges in Italy tend to repeat information on countries of origin that had already been used by other colleagues in earlier decisions. Consequently, as other participants confirmed (Giovanna and Mara, lawyers), COI mentioned in much case law is out of date. It is no coincidence that, in 2019, the Italian Supreme Court found that judges should avoid ‘generic’ and ‘stereotyped’ references to the claimants’ country of origin, and should identify specific and up-to-date COI for each case.Footnote 13 This obligation derives from the general ‘duty-power of cooperation’ of judges (Flamini 2018), which the Supreme Court has repeatedly emphasised in its case law (Chap. 7). As Filippo stressed, echoing Nazarena (lawyer), the problem is that very often territorial commissions are not clear about what COI is used to deny an asylum request. In Filippo’s view, this lack of information does not reflect inexperience or incompetence but might simply be a consequence of the ‘hellish rhythms’ imposed on the commission. For all these reasons, COI provided by lawyers or support groups is particularly welcomed by members of the commissions and judges because it facilitates their work (Sect. 6.2). For example, in the case of a transgender claimant from Cuba, Valentina (social worker) provided original material collected by local contacts in that country that showed abuses by the police against SOGI minorities, despite the absence of any discriminatory legislation. In this light, it was suggested that one way to greatly enhance the quality of COI in use would be to fund social and ethnographic research in claimants’ home countries, thus shedding light on social perceptions of these minorities (Vincenzo, LGBTIQ+ group volunteer).

Compared with Germany and Italy, at first sight the UK asylum system appears very advanced in relation to COI and SOGI. There is a growing number of SOGI-specific Country Policy Information Notes (CPIN) that, being publicly available, are also in use in other European countries, as discussed above.Footnote 14 In the past, there have been concerns regarding the regularity with which this material is updated (UKLGIG 2013, p. 31). At the same time, some Country Information and Guidances have been found to be problematic. An example is the guidance on Jamaica, which was for a long period on the list of ‘safe countries’ (Sect. 6.7).Footnote 15 The guidance clearly mentions that, according to the Jamaican Offences Against the Person Act of 1864, ‘[w]hosoever shall be convicted of the abominable crime of buggery [anal intercourse] committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years’ (Home Office2017, p. 10). Equally, the guidance recognises that lesbians risk violence ‘up to and including “corrective” rape and murder’ with insufficient state protection. Yet, the same guidance also quotes a Tribunal ruling saying that:

Not all lesbians are at risk. Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear.Footnote 16

The obvious question is whether anyone at risk of corrective rape or murder would not hide their sexuality through fear of persecution (Weßels 2012, p. 821). These logical inconsistencies, however, are far from being duly considered. In fact, ‘discretion reasoning’ according to the HJ (Iran) ruling is generally emphasised in all the CPIN and Home Office guidance also identifies countries where relocation is an option for SOGI minorities (UKLGIG 2013, p. 22). The guidance on Iran is a case in point. Despite the severity of punishments in case of same-sex sexual relations, the Home Office guidance on Iran excludes internal relocation to escape persecution but, simultaneously, also says that ‘some evidence suggests that homosexual and bisexual persons who do not openly reveal their sexual orientation and keep a low profile are able to move freely within society’ (Home Office2019b, p. 9).

For reasons connected to ‘discretion’, relevant guidance often recognises criminalisation and discrimination but not to the level of persecution. For example, although the Home Office guidance on Bangladesh includes serious concerns about human rights and violence against SOGI minorities, it then distinguishes between different groups to identify persecution (Home Office2020, p. 11). On the one hand, the Home Office’s guidance states that ‘an LGBTI person who is open’ may be at risk of persecution. On the other hand, it requires that where a person does not openly express their SOGI, ‘consideration must be given to the reasons why they do not’ and, consequently, shall bear the burden of demonstrating that they would be at real risk of persecution on return (Chap. 7). What is more, past research emphasised that these country guidance documents do not always include information on specific groups within SOGI minorities (ICIBI2014, p. 31), for instance in relation to transgender or lesbian people, leading to the risk of the absence of evidence being interpreted as absence of persecution (Bach 2013). In this respect, however, it is worth noting that the last available guidance tends to avoid homogenisation of SOGI minorities and provides specific details on particular groups in countries of origin (Home Office2020, para. 7). Moreover, both the Home Office’s 2016 Sexual Orientation guidance and the 2011 Gender Identity guidance point out that there may be a lack of country of origin supporting evidence, with the Gender Identity guidance stating that ‘absence of specific legislation on transgender men and women in particular may be an extension of their general marginalisation’ (Home Office2011, p. 15).

Based on our data, these CPIN and guidance documents are widely used in UK decision-making (for instance, in four different judicialhearings that we observed – Tribunal observations, London 2018; First Tier Tribunal observation, Birmingham, 2018 – related to Kenya, Albania and Malawi). Our data also shows the existence of some gaps and mixed views on the real value of these CPIN and guidance documents. According to one decision-maker, consulting Home Office material in advance of an interview is fundamental to identify appropriate questions for the claimant (Emily, decision-maker). For instance, when the relevant guidance suggests that SOGI claimants cannot relocate to other parts of their countries of origin, in her view there is no need to further investigate that option. More generally, the availability of up-to-date COI usually depends on the specific country under examination. In fact, as Emily explained, COI on countries from which SOGI claimants commonly arrive may contain detailed information on the treatment of SOGI minorities, while there might be a lack of SOGI-related information in relation to less common countries of origin. In these cases, reports by the US government may be consulted, although Emily explained that these are often too general and ‘basic’. Worryingly, another decision-maker explained that, when information is lacking, his research includes academic sources as well as news about ‘Pride events’ or the existence and activities of ‘any LGBT societies’ in the claimant’s country of origin (Qasim, decision-maker). COI was equally challenging for judges. For instance, Amadin, who claimed asylum in the UK from Benin, explained that the judge in his case had confessed to being ‘confused’ by the contradictory evidence she had found by searching online for information about gay acceptability in Benin. Amadin’s case was also set back by his lawyer’s confusion of information about Benin (Amadin’s country of origin) with information relating to Benin City (a city in Nigeria) (Sect. 6.2). During the appeal stage, lawyers may contribute to filling evidentiary gaps, given that – in contrast to Italy for example – in the UK the judge does not play an active role in gathering information and relies primarily on lawyers’ ‘bundles’. For instance, during a judicial hearing observed in 2018, the lawyer provided evidence on the treatment of gay men in Tanzania from NGO sources, such as Human Rights Watch and the Human Dignity Trust. In other cases, even the use of tourist guides by the Home Office’s presenting officer was reported (Allan, lawyer). Finally, regarding the updating of available COI, concerns were expressed as to the capacity of the Home Office to ensure that this is done consistently:

I find it quite difficult to get my head around how it is that, a team of 14 or 15 is responsible for producing all of this material which is essentially life changing material for thousands of people (…). You need to get really good up-to-date stuff, but if you have got an expert, and we try to find the people who are most expert to inform the reviews, you need to listen to them and there is a risk that if the expert is saying something that the Home Office doesn’t like the sound of, they are not necessarily going to be quite so receptive (David, official).

In addition, material that is not available in English is not necessarily taken into account, thus limiting the sources of information and adding further concerns about the value of the COI used (David, official). That is perhaps why, although Emily and Qasim (decision-makers) stated that they usually consider the information provided in such guidance, their assessment is always based on the individual circumstances of SOGI claimants. As Qasim (decision-maker) put it:

Someone from (…) say… Jamaica, is not going to be able to display all of the thoughts and processes and emotions that the guidance tells us they should be doing. Again it depends on the kind of society they grew up in… it depends on, yes, their own experiences in their childhood… you have just got to look at the individual aspects of the case on a case-by-case basis and judge according to that.

According to the Refugee Convention and UNHCR guidelines, a case-by-case analysis is indeed the method that should always be adopted, irrespective of more or less detailed COI. Consequently, criticising the general UK approach in this field, Roberto, a decision-maker in Italy, pointed out that ‘the main problem with COI is that too often information on a country is used to support a specific position, not as a helpful tool for reflecting on a case’. In fact, as Chap. 7 will investigate, once a claimant is deemed credible, there is the risk that COI is used to deny the fear of persecution on the basis of ‘objective’ evidence in an exercise of detachment from ‘personal’ circumstances. It is perhaps no surprise that, according to Nath, a lawyer in the UK, ‘where there is a little information, [decision-makers] tend to give the benefit of the doubt (…) so paradoxically sometimes you are quite happy when there is no guidance’. Conversely, when ‘objective’ evidence related to the country of origin is available, this evidence may be given more weight than evidence submitted by claimants. For instance, in a case involving a Nigerian claimant, the Tribunal of Bari (Italy) reversed the territorial commission’s decision in the belief that the lack of proof should have been afforded less weight than the objective situation of discrimination faced by sexual minorities in that country.Footnote 17

In sum, while COI is undoubtedly important, its gathering, production and use raise doubts across all countries under investigation, particularly when the individual circumstances of a SOGI claimant are outweighted by general, but not necessarily relevant, information about the country of origin in question. Our survey confirms this conclusion, by signalling an even more worrying trend. For 50% of respondents who work with or support LGBTIQ+ people claiming asylum, COI is the second main problem at the appeal stage in SOGI claims – second only to credibility (75%). Similar concerns emerged in relation to interpretation, to which we now turn our attention.

6 Interpretation

An important component of a fair asylum system is access to an interpreter for all claimants to ensure that they can both understand the proceedings and be understood. This guarantee is protected and further specified at European level. Whereas the ECtHR has emphasised in its jurisprudence ‘the importance of interpretation in order to ensure access to the asylum procedure’,Footnote 18 the Procedures Directive provides for specific obligations on member states in this respect. According to Article 12(1)(b), claimants ‘shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary’, to be paid for by public funds. Equally, according to Article 15, member states shall select an interpreter for the interview who can ensure appropriate communication in the language preferred by the claimant and, wherever possible, of the same sex, if the claimant requests it.

Yet, when we look at our data, the failure to implement these guarantees across Europe was evident. According to our survey, only 43% of those respondents who had an interpreter for their interviews or court hearings (73% of the total) declared being happy with the interpreting service. The situation is not any more positive in our country case studies, both from a general asylum perspective and a more specific SOGI dimension. While Germany and Italy appeared less compliant than the UK in this area, probably for linguistic reasons, two distinctive features emerged. On the one hand, where possible, claimants preferred to avoid interpreters to enable more direct communication (for instance, Diarra, Italy; Harriet, focus group no. 2, Bavaria, Germany). As Tina, who claimed asylum in Germany, explained:

You can’t translate something you really would like to express… the way you feel, it can’t be translated. That’s what I felt, like I wish I could… I know the language to express deeply how really I… that I really have here [within myself]. But I have not got that chance.

The inability to talk directly to the interviewer or the judge, also given the fact that judicialproceedings are carried out in German or in Italian, appeared to create feelings of disempowerment in SOGI claimants, which were sometimes aggravated by interpreters’ attitudes. Owing to power differentials within the system, often coupled with time constraints, many claimants explained that they did not ‘dare’ asking to change interpreters, despite this being a legal entitlement (for instance, Odosa, Siri, Mamaka, Franco, all claiming asylum in Italy). On the other hand, a low level of linguistic competence by national authorities working with asylum claimants was reported (for instance, Gisela, lawyer, Germany), which clearly hampers direct conversations. These linguistic barriers, coupled with the use of a third language, such as English, which is then translated by interpreters into the claimants’ native language, risk seriously undermining effective communication (Giuseppe, lawyer, Italy).

Rigorous selection and training of interpreters is an essential component of a fair asylum system. In Germany, although the presence of a ‘language mediator’ (‘Sprachmittler*innen’) is provided for by law, for BAMFinterviews freelance interpreters are usually employed but no specific professional qualifications or state examinations are required (ECRE, AIDA & Asyl und Migration 2019, p. 25). Nonetheless, as the 2019 ECRE/AIDA report states, in recent years the BAMF announced new measures to improve the quality of interpretation services. In particular, language mediators are now obliged to acquire, at least, a C1 certificate in German and to complete an online training programme. This training includes general themes relating to the asylum process and the treatment of claimants with symptoms of trauma, in order to develop psycho-social competences and to acquire knowledge of professional ethics (BMI2019, p. 14). In addition to a formal complaint system, the BAMF also introduced a ‘code of conduct’ containing a number of principles, such as integrity, professional and financial independence and neutrality, to which language mediators should commit.Footnote 19 These improvements seem much needed in light of our participants’ strong concerns about the qualifications of interpreters used by the BAMF. According to Barbara, Evelyne and Anne, all lawyers, many people are not qualified as interpreters but are simply ‘language mediators’, and so more likely to accept lower fees than trained professionals. Other claimants reported the lack of interpreters/language mediators for some languages. Sylvia told us that, although she asked to be interviewed in Luganda, no Lugandan interpreter was provided for her. She was asked to use English during the interview. As she put it, ‘I felt like I had no choice, but forced myself to express my story in English. But I don’t think I even said the right things I had to say. That was not fair’. This corresponds to experiences in some of the hearings observed during our fieldwork, where the quality of English interpretation was poor (Court observation, Hesse, 2018), including the use of offensive terms to identify SOGI minorities (Court observation, Hesse, 2019). Judges were only rarely proactive in ensuring that claimants understood every question before recording their answers (for instance, another Court observation, Hesse, 2019). In this context, not surprisingly, no SOGI-specific training for interpreters was reported (for instance, Kadir, NGO worker).

In Italy, the selection of interpreters varies for different stages of the asylum procedure. According to our data, a combination of formal procedures and informal practices are in place. At the administrative interview, interpreters are provided by territorial commissions through private companies. During the appeal, instead, claimants often need to find an interpreter in case a hearing is scheduled. Sometimes reception centres and support groups help asylum claimants in this respect, while on other occasions claimants rely on personal contacts or pay a professional. Although public funds are theoretically available to cover these expenses, bureaucratic delays may prevent their use in practice (for instance, Giuseppe, lawyer). In addition to general concerns over the lack of interpreters from specific countries or with knowledge of specific dialects (Nazarena, lawyer; Daniele, decision-maker), this twofold ‘selection’ process generates concerns. While some SOGI claimants welcomed the possibility to choose their own interpreter for the tribunal as it meant they could appoint someone they trusted and avoid using people from their communities serving as interpreters (for instance, Nicola and Giulio, LGBTIQ+ group volunteers), this mechanism may undermine the quality of interpretation. Much of the time interpretation is indeed provided on a voluntary basis by Italian contacts. However, when no one is available, claimants have to rely nonetheless on people from their same community, even if with no qualifications at all. According to Filippo (senior judge), this practice violates the most basic principles of justice: ‘neutrality, impartiality and independence’. Moreover, an interpreter chosen by the claimant may be perceived as less neutral and trustworthy by judges, as we saw in a Tribunal observation in northern Italy in 2018. At the same time, when appointing the interpreter is left to reception centres, there is no guarantee that SOGI dimensions are considered (Silvana, judge). In fact, this consideration depends on the professionalism of the specific centre in question (Sect. 8.2 and Chap. 8).

In relation to the administrative interview, the provision of an interpreter by the state is positively evaluated given most claimants’ lack of resources. However, since there are no provisions for verifying interpreters’ qualifications or experience, professional and ethical standards cannot be guaranteed (Livio, lawyer). As a remedy, Roberto (decision-maker) explained that informal procedural arrangements are sometimes adopted in territorial commissions. For example, when he knows in advance that an interview with a SOGI claimant is scheduled, he submits very specific requirements in order to have the most qualified interpreter among those usually employed, namely the one ‘with the right attitude’ towards these claims. Yet, these informal procedural arrangements are left to the initiative and discretion of caseworkers, which in turn depends on their training on, and understanding of, SOGI asylum. After the interview, interviewers may report inaccurate or inappropriate interpretation services to the president of the territorial commission, to prevent the interpreter in question being employed again (for instance, Maria Grazia, decision-maker). In relation to the selection process, participants commented on the increasing employment of former asylum claimants as interpreters. On a positive note, as Roberto (decision-maker) explained, their employment may be a useful way to remedy the imbalance of power experienced by many asylum claimants. It is nonetheless true that the risk of re-traumatisation (Titti, decision-maker) as well as lack of legal, psychological and social competences (Vincenzo, LGBTIQ+ group volunteer) can be high. Despite any inadequacies, in Roberto’s view some SOGI claimants trust the interpreter ‘no matter what’, just ‘because they do not trust the interviewer’. As he put it, unless evident signs of homophobia or transphobia emerge, ‘the interpreter is always a person of the community, someone who speaks their language, while the interviewer is always a White person who is examining them’. The experience of Mamaka, who claimed asylum in Italy, is noteworthy in this respect:

I was not thinking that I would meet someone who speaks my language (…) I was expecting to speak English. So when I met him (…) he also gives me the courage. We will understand each other because he also went to my country.

Overall, this data shows that, in both Germany and Italy, basic standards are not consistently met. For instance, although asylum claimants are entitled to ask for an interpreter of a specific sex, we heard from participants that these requests are not always properly addressed (for instance, Maurizio, judge, Italy; Evelyne and Anne, lawyers, Germany). Often claimants themselves are not in a position to postpone their interviews to wait for an appropriate interpreter to become available (for instance, Ibrahim, Germany). The case of Trudy Ann, who claimed asylum in Germany, is illustrative. No one asked if she preferred a female interpreter/language mediator before the interview and no female was available that day. As she explained, ‘with the interpreter I never feel really comfortable because he’s a man, so I can’t really express myself in the way I want to express myself’. Yet, Water (focus group no. 4, northern Italy) asked for and obtained a male interpreter, explaining that he did not feel confident speaking with a woman. Despite the above-mentioned CEAS obligation, it is therefore evident that no automatic mechanisms are in place to ensure an interpreter of the same sex of the claimant. This right is only granted where interpreters of both sexes are available to interpret in a particular language (Titti and Daniele, decision-makers, Italy).

In Germany and Italy, concerns were also reported in relation to the quality of interpretation from both a general and a specific SOGI point of view. In Germany, among many cases of interviews that had been poorly interpreted (including by William and by Nina, a legal advisor), Angel described how the interpreter himself stopped the interview because he did not feel able to translate adequately: ‘He said he hasn’t spoken English in a couple of years, so he understands English but not as much. So he said he didn’t think it was fair to me, for him to continue the interview’. Always in Germany, we also heard of interpreters behaving in an unprofessional manner, asking questions in the place of the interviewer (Amis, focus group no. 2, Bavaria). As previous research has pointed out, interpretation can be a difficult task when terms used are intimate, colloquial or relate to a subcultural scene, which the interpreter feels embarrassed or ashamed to use (Hübner 2016, p. 250). Lack of understanding and erroneous translation of SOGI terms were also reported (for instance, Frank S., legal advisor; Halim). Marhoon remembered that his interpreter was not aware of the word ‘gay’, so the interview was postponed:

When I told this woman that I’m gay in English, she didn’t understand. And when I used the Arabic term for homosexuality in Arabic which is “mithli”, she didn’t understand. (…) I have to wait for another 3–4 weeks. But I’m glad I did it, because if I had carried on with that, they might have misunderstood my whole story.

Diana mentioned that, during the interview, the interpreter ‘did not want to understand what is called the transition of man to woman, woman to man. And that is totally like a violence for a refugee, if that happens’. Finally, Trudy Ann recalled:

I said to him “she’s a butch”, he said “I don’t know what a butch is” [and] when I told him that I would take pills to kill myself (…) because of my lifestyle. He did not interpret that part.

Similarly, in Italy, decision-makers reported on the difficulty of working with non-professional interpreters who frustrated their efforts to ask questions in a sensitive way, with some interpreters going so far as to answer questions themselves or summarise complex answers by the claimant in just a few words (Daniele and Maria Grazia, decision-makers). One decision-maker offered an enlightening example in this respect: some interpreters may translate a claimant’s statement ‘I have had sex with men’ with ‘I’m gay’ (Titti, decision-maker), with potentially negative implications in terms of credibility (Chap. 7). Giulio (LGBTIQ+ group volunteer) referred to interpreters who had no understanding of bisexuality or transsexuality. The situation may be worse in tribunals, especially when voluntaryinterpreters are brought along by claimants (for instance, Silvana, judge). Where they were not professionals in the field, basic mistakes would often be made. For example, during a Tribunal observation in northern Italy in 2018, a friend of the claimant who was serving as an interpreter did not translate parts of his personal account and, when she did, the meaning had been changed (for instance, ‘friend’ in English was translated with the Italian word for ‘partner’). In this situation, it was only the readiness and ability of one of the panel of three judges to detect linguistic discrepancies and to ask further specific questions to clarify the claimant’s story that prevented this mistake damaging the claimant’s credibility.

Other concerns in both Germany and Italy were reported in relation to the background of the interpreters and the problematic relationship with SOGI claimants. Ibrahim (Germany), as several others, shared the fear that when interpreters have the same socio-cultural background of the persecutors of a SOGI claimant, they may replicate homophobic or transphobic attitudes. In Germany, Joachim (NGO worker) recalled the use of offensive terminology, ‘either out of own prejudice or out of ignorance’, while Knud (NGO worker) reported the case of an interpreter in court who ‘as soon as he heard what it was about, had no more interest’. More worryingly, the BAMF legitimises this kind of approach by not adopting adequate countermeasures in such cases (Knud, NGO worker). In Italy, Giulio (LGBTIQ+ group volunteer) explained that, in some cases, during the preparatory meeting before the interview or the hearing, interpreters refused to fulfil their role because ‘they do not talk about homosexuality, or use this word’. Giovanna (lawyer), confirmed this by telling us about a former claimant who now serves as an interpreter: although he ‘does not even want to hear about SOGI claimants’, he had worked on several SOGI claims. It is therefore promising that, when such attitudes emerged during an interview, most decision-makers would suspend the interview (Jonathan, LGBTIQ+ group volunteer).

Finally, in some circumstances, an interpreter having the same background as a SOGI claimant was identified as an obstacle to the claimant being open about their real fear of persecution (for instance, Ibrahim, Shany, Prince Emrah, all claimants in Germany). Fares (Germany) expressed this feeling in the following terms:

I was thinking to come out and say that I’m gay. I was like, for one week, I was thinking, should I say something? I want to say something, I want to be myself, but at the same time no. Psychologically I was really ready to say that, but when I saw this translator, every door was blocked, I cannot say anything anymore.

Despite the criticism this may raise from a theoretical perspective (Puar 2007, 2013), our data suggests that such experiences were more common when interpreters showed a religious background. For example, Gisela (lawyer) reported the case of a young claimant from Iraq, who, in Germany, was given an interpreter wearing a headscarf: ‘that looked so strictly Islamic (…) he simply did not dare to say [his SOGI]’. Similar cases were reported in Italy. Valentina (social worker, Italy) recalled the experience of a Russian gay claimant with an orthodox interpreter from Ukraine, who could barely translate apparently because she was too embarrassed by the SOGI nature of the claim. Sometimes, being aware of their rights, claimants felt able to overcome such situations. As Moses (Italy) summarised: ‘For the fact that I was here, I knew I was safe, that he [interpreter] couldn’t really do anything’. Other positive experiences were reported, for instance, by Mamaka (Italy), who recalled that her interpreter was male with a similar socio-cultural background and, after the end of the interview, approached her to say: ‘I am very sorry about what happened, what makes you to leave your country’. In turn, Cristina (UNHCR officer) remembered an interpreter from Iran who, despite admittedly struggling to accept same-sex relationships, tried to increase his understanding of SOGI matters by connecting with people belonging to SOGI minorities.

Similar problems concerning interpretation also emerged in others settings, including arrival and reception centres. On a general negative note, Livio (lawyer, Italy) recalled the case of a cultural mediator who was tasked with collating asylum requests in an arrival centre in Italy, and who suggested to newly arrived migrants that they claim asylum based on a fabricated story. One claimant was only able to correct his false account and avoid the likelihood of being identified as ‘not credible’ after meeting with a lawyer before his main interview. On a more positive note, in Italy, Chiara (NGO worker) and Celeste (social worker) explained that they specifically identify the most appropriate interpreter for SOGI claims by choosing, among those available, the interpreter closes to the claimant in terms of ethnic background, as long as they have not adopted discriminatory attitudes in the past. An interpreter who was called on to translate in therapy sessions with a lesbian claimant, but displayed a homophobic attitude, was promptly removed from that position. A similarly positive approach to the selection of interpreters was also reported by some lawyers (for instance, Damiano).

Apart from some negative experiences reported by claimants (Sadia, Mary and Zaro, all claiming asylum in the UK), there were more accounts of satisfaction with interpretation services in the UK. As Olivia (government official) explained, the Home Office has a database of interpreters who are checked before being employed and whose proficiency is constantly monitored. If any issues arise, the matter is reported to the Home Office’s interpreters unit. Similar checks to ensure that a person meets the required standards are carried out in relation to external interpreters as well, needed for less common languages. A code of conduct is available for interpreters, but it seems that asylum claimants are often unaware of it and of what to expect from interpreters (ECRE, AIDA & Refugee Council 2019, p. 22). Asylum claimants are usually asked at the screening interview whether they wish to be interpreted by a man or a woman, but some concerns have been raised in this respect in light of the low number of such requests (ICIBI2017). One senior judge, Harry, described interpreters used in tribunals as adequate for their role, while another judge made it clear that if an interpreter shows embarrassment or disapproval, the hearing is usually suspended (Adrian). As many claimants in the UK are able to communicate in English, Nath (lawyer) explained:

Even if it is not great, I encourage them to go without an interpreter. (…) Also because it is very much about your feelings and emotions and so on, it will necessarily get distorted in one way or another, when it gets interpreted it is not, it is just not going to be the same… there is a lot of body language.

Yet, while recognising that some claimants are comfortable talking with interpreters of their own country of origin, Nath suggested that, in relation to interpretation as well as other aspects of the claim, preparation always remains the key factor:

I spend so much time with my clients before getting to the interview, that I am, I have got quite a good feeling of whether or not they can do it without an interpreter… and obviously if they can’t, then you just go with one.

Even where preparation and high quality interpretation services are provided, asylum claimants, including SOGI ones, risk being deprived of their rights when their requests are assessed through special procedures, to which we now turn.

7 Other Procedures

Before concluding, we consider some special asylum procedures that may apply to SOGI claimants in particular contexts. These include, amongst others, acceleratedprocedures, which often involve asylum requests from nationals of countries identified as ‘safe’, and Dublin transfers, which are based on the implementation of the Dublin Regulation (III) as a key instrument of the CEAS framework currently into force (Chap. 4). Albeit briefly, it is necessary to assess whether or not these procedures are appropriate for SOGI claimants given their specific needs.

As for acceleratedprocedures, their negative effects are primarily connected to the obstacles they pose to the identification of SOGI claimants’ specific needs. For example, in Germany, if specific conditions are met, claimants may be assessed by special officers within a few days (ECRE, AIDA & Asyl und Migration 2019, p. 50), especially in the context of the new ‘AnkER centres’. Given the speed of these assessments, claimants may not be in contact with social services, which are usually called upon to identify vulnerabilities and reception needs, or with NGOs to be supported or prepared before the interview. Considering the importance of preparation as well as the time often needed by SOGI claimants to reveal their real grounds of persecution, many participants in Germany expressed serious concerns about the effects of this new system on SOGI claimants (Nina, legal advisor; Frank S., legal advisor; Mariya, NGO worker; Sofia and Emma, NGO workers). While Halim, claiming asylum in Germany, where he works for an NGO, provided examples of the inconsistencies between decisions adopted through acceleratedprocedures, by referring to different results in two very similar cases of gay activists from Egypt, Thomas (NGO volunteer) emphasised their social cost. As he put it, ‘[t]hat’s the next level of exclusion’.

The general inequity of acceleratedprocedures was confirmed in the UK in relation to the so-called Detained Fast Track (‘DFT’) when it was suspended in 2015, precisely because the England and Wales Court of Appeal found it to be ‘structurally unfair’.Footnote 20 On the same basis, despite the attempts of the government to draw up a new Fast Track system for ‘detained foreign criminals and failed asylum seekers’ (UK Ministry of Justice 2017), the High Court ruled out any revival of the DFT in 2019.Footnote 21 Also in 2019, there was confirmation of the inappropriateness of these procedures for SOGI claimants when the case of a woman who applied for asylum on sexual orientationgrounds while she was in detention was heard by the England and Wales High Court (Administrative Court).Footnote 22 As a result of the rejection of her asylum request through DFT and, in appeal, by the First-Tier Tribunal, the claimant had been returned to Uganda. After 6 years, the High Court held that the woman must be brought back to the UK to have her asylum claim fairly heard. It recognised that she required a longer timeframe to obtain relevant evidence. More broadly, as Amanda (NGO worker, Brussels) emphasised, it is not only a matter of proof but also of the environment generated by these procedures, which inhibits self-identification in SOGI claimants.

Acceleratedprocedures usually apply to claimants coming from so-called ‘safe countries’, whose claims have a reduced likelihood of being accepted (Joachim, NGO worker, Germany; Thomas, NGO volunteer, Germany; Gisela, lawyer, Germany). Whereas the concept of ‘safe country of origin’ is problematic overall (Costello 2016), when examined from a SOGI perspective, it is even more troubling when countries classified as ‘safe’ criminalise same-sex acts. For instance, participants in Germany pointed to the example of Senegal, among others, which criminalises same-sex acts and yet is treated as a ‘safe country of origin’. This effectively places an extra evidentiary burden on SOGI claimants coming from those countries, who are expected to challenge the assumption that their countries of origin are safe. Considering that the timeframe to appeal in these cases is generally shorter than in ordinary procedures (Frank S., legal advisor), additional barriers to a fair procedure are clearly in place for SOGI asylum claimants coming from those countries.

The situation in the UK is somewhat different. Section 94(4) of the Nationality, Immigration and Asylum Act 2002, contains a list of designated states. A state is included on the list (that is, it is ‘designated’) if the UK government believes that ‘there is in general in that state or part of it no serious risk of persecution of persons entitled to reside in that state or part of it’ (Home Office2019a, p. 7). Claims from individuals from these states will be designated ‘clearly unfounded’ – meaning there is no right of appeal from within the UK – unless the caseworker finds reasons to designate the application otherwise (ECRE, AIDA & Refugee Council 2019, p. 54). Countries like India or South Africa, where ‘corrective rapes’ affecting lesbian women are still reported, are included in this list (Strudwick 2014). Significantly, as far as SOGI claimants are concerned, in 2013 the Parliamentary Home Affairs Committee raised concerns about the impact of the credibility assessment for LGBTI claimants from countries designated as safe (House of Commons Home Affairs Committee 2013). The government responded: ‘we agree. With specific reference to LGBTI related claims, there are further instructions relating to claims from some of the States designated under section 94(4) of the Nationality Immigration and Asylum Act 2002. Where there is strong objective evidence that members of the LGBTI community would be at risk of persecution in these countries, a grant of asylum would be appropriate’ (UK Government2013, p. 13). Also in 2013, the Court of Appeal in England and Wales found the designation of Jamaica as a ‘safe country’ unlawful because of the violence experienced by SOGI minorities and the lack of state protection against it in that country.Footnote 23 Therefore, as Olivia (government official) confirmed, even when the safe country concept applies, every claim needs to be evaluated on a case-by-case basis: ‘we have a SPoE [Second Pair of Eyes] process for NSA [Non-Suspensive Appeals] or safe countries…’Footnote 24 That is probably why our research found that, in practice, the application of the ‘safe country’ concept and a list of ‘designated’ states is not currently a determining factor in SOGI asylum claims in the UK. Indeed, only an individual examination would be in line with the ECHR and EU law (Article 36 of the Procedures Directive).

Considering these pitfalls and the need to review the specific circumstances of each claimant, it is regrettable that the reform adopted in Italy in 2018 introduced, for the very first time in the Italian legal order, a list of safe countries allowing acceleratedprocedures, including at the border.Footnote 25 As a result, in October 2019, a first list of 13 ‘safe countries of origin’ was drafted and includes Algeria, Morocco, Tunisia, Ghana and Senegal, countries with poor human rights records insofar as SOGI minorities are concerned (Ramón Mendos 2019). Considering that territorial commissions need to decide on these applications within 5 days as a rule, the quality of examination of claims relating to countries designated as ‘safe’ will in all likelihood decrease and there will be a heavier burden of proof for the claimant (Chap. 7).

If acceleratedprocedures and the ‘safe country’ concept are inherently unfair for SOGI claimants, there are also strong concerns about the application of the Dublin Regulation to these claimants. This is confirmed by our survey, given that (at least) 17% of respondents were transferred between EU member states under this Regulation. The Dublin Regulation establishes the criteria and mechanisms for determining the EU member state responsible for examining an application for international protection lodged in one of the EU member states. Similarly to other claimants, when SOGI minorities request asylum in an EU country, it may happen that, following the rules of the Dublin Regulation, another member state is instead responsible for the evaluation of their claim. For example, in light of the importance attributed to family reunification in the Regulation, irrespective of the country where these requests are submitted, SOGI claims may potentially be examined by the member state where the claimant’s family members have been already granted or have applied for international protection. Nonetheless, considering the likely heteronormative reading of the notion of family when the Dublin Regulation is applied to SOGI claimants, doubts have been raised about the fair application of this element of the Dublin Regulation from a SOGI perspective (Del Guercio 2018). Consequently, when a SOGI claim is submitted, there is a higher risk that, according to the Dublin Regulation, the first member state of access to Europe will be the country responsible for evaluating the claim (Danisi 2018).

It is not surprising, therefore, that during our fieldwork concerns were expressed in particular in relation to the transfer of SOGI claimants to Italy, Greece or Eastern EU member states, these countries often being the first member states through which claimants enter the EU (for instance, Evelyne and Anne, lawyers, Germany; Knud, NGO worker, Germany; Chiara, NGO worker, Italy). The problem here is not (only) whether the country identified as responsible for evaluating a SOGI asylum claim protects or not SOGI minorities, considering that all EU member states should – at least as a matter of law – offer a minimum level of protection to these minorities. The primary issue in SOGI claims is rather whether or not the designated country makes a fair evaluation of the asylum request and has in place adequate services, including accommodation, to address SOGI specific needs (Oscar, judge, Germany). Barbara (lawyer, Germany) expressed concerns about the alarming level of homophobia in countries like Hungary, raising doubts about the fairness of Dublin transfers of SOGI claimants to that country. Moreover, as Sabrina (NGO worker, Germany) pointed out, many claimants are so traumatised that a transfer can have a serious impact on their mental health (Chap. 9). In this situation, as she further explained, only the use of ‘psychiatric statements’ prevented Dublin transfers to Italy or Hungary from taking place.

It is nonetheless particularly difficult to appeal against such transfers. An example of this is the case of a male gay claimant whose hearing was observed in Hesse, Germany, in 2018. He had applied for asylum in Greece, where he experienced violence – including rape – before and after obtaining refugee status. He had not received any support from the Greek authorities. On the basis that Greece is a ‘safe country’ for asylum claimants, including SOGI, the judge did not ask the claimant any questions, not even related to the SOGI nature of his claim, and stated: ‘I assume that this [abuse] does not happen everywhere in Greece. Greece is a member of the European Union and I assume that there is protection available’. The appeal was rejected, although the claimant was able to remain in Germany on separate grounds. In other cases, despite mental health concerns, Dublin transfers have been allowed. For example, Chiara (NGO worker) and Susanna (social worker), both in Italy, reported the transfer from Austria to Italy of a gay claimant from Morocco who had made several suicides attempts. On his arrival in Austria across the Italian border, he had found a SOGI asylum association, dedicated accommodation and mental health support. Despite his specific circumstances, the Austrian authorities decided that Italy was the EU member state responsible for evaluating his asylum request. With no specific and individual guarantees or assurances from the Italian authorities, he was sent to Venice and, from there, to Sicily. Thanks to the efforts of the Austrian SOGI asylum association, the claimant was referred to a support group in Italy, which then followed his asylum procedure while making sure his health issues were properly addressed. Yet, as Chiara pointed out: ‘he is very traumatised, especially because he lives in a reception centre [for male claimants], where he constantly fears abuses by other guests (…) also due to the violence he already suffered in Lybia, where he was raped’. Franco (Italy) was another claimant sent back to Italy twice from Austria. As he explained, the reception conditions in Austria were very poor: ‘they treat us as a prisoner, but they don’t beat’. Remarkably, neither authority took his grounds for persecution into account when they considered his case under the Dublin Regulation.

Our participants also reported a lack of sensitive Dublin transfers, especially in relation to SOGI claimants sent back to Italy. For instance, Kamel (Italy) recalled a gay claimant from Germany who was transferred by flight to Rome with a voucher for one meal and without contacts of any kind. The claimant only avoided becoming homeless thanks to local associations in Rome, which found him temporary accommodation. In turn, Valentina (social worker, Italy) recounted the cases of several transgender claimants who, after obtaining visas to remain in Italy, tried to travel to the Netherlands to claim asylum there because of the availability of good quality trans-dedicated social services in that country. Yet, apart from a specific few whose medical issues presented obstacles to their transfer, they were all returned to Italy under the Dublin Regulation (Article 12). Only the intervention of an association defending transgender people’s rights ensured that the Italian authorities and reception centres where they were eventually hosted addressed their specific needs, at least in part. In one case, Valentina reported that, owing to the violence they had already experienced in a reception centre in Italy, the transfer of a transgender claimant from the Netherlands was halted. A final concern is that, when claimants who belong to couples have to be transferred under the Dublin Regulation because they may not be legally recognised as partners, they risk being separated and sent to different countries if they entered the EU via two different member states. Gisela (lawyer, Germany) explained that, in at least one case, German authorities eventually decided to keep two claimants together after positively evaluating the ‘informal’ evidence of their relationship (mainly pictures taken in their home country).

Perhaps not surprisingly in light of the patterns of arrivals in the UK explored in Chap. 5, Dublin transfers do not seem to be a particular issue there as far as SOGI claimants are concerned. Only Denise and Umar (legal advisors) reported the case of a gay couple from Syria who risked being sent back to Croatia, as their first country of entrance into the EU. In their view, one of the reasons for the limited relevance of Dublin transfers in the UK may be that many SOGI claimants submit sur place applications in the UK, meaning that no other EU member state had previously been identified as responsible for their asylum applications. Indeed, as Oliver, an NGO worker, put it, ‘Dublin is very, very rare’.

Overall, these experiences should prompt EU member states to invoke more often the ‘sovereignty clause’, and claim jurisdiction of a claim where there is a risk of exposing SOGI claimants to degrading treatment, at least in terms of lack of appropriate services in the country of destination. This would be in line with the case law of the CJEUFootnote 26 and the ECtHR.Footnote 27 The much awaited reform of the Dublin Regulation needs to review the current criteria by avoiding a heteronormative perspective, while addressing the specific needs of asylum claimants, including SOGI claimants, and ending the practice of inhumane transfers of people between EU countries.

8 Concluding Remarks

This chapter has examined procedural aspects of SOGI asylum as applied in Germany, Italy and the UK, having regard to the Refugee Convention and the European asylum and human rights frameworks. It has also examined the role played by different actors in applying or setting up informal procedural arrangements, aimed at improving the fair assessment of SOGI claims, while addressing people’s specific needs. Our empirical data confirmed the perception of these claims as particularly complex ones and findings on aspects already explored in past research (Buscher 2011; Jansen and Spijkerboer 2011). Overall, by comparing these countries’ practices, our analysis has demonstrated that procedures play a fundamental role for better decision-making but, as currently regulated at EU and domestic level, they still fail to fully comply with the UNHCR guidance (UNHCR2012a).

Some of the problematic areas that emerged across all countries under investigation include: a lack of specific procedures, the long duration of the process, imbalances of power, the impact of bias, a lack of cultural awareness, and poor quality services, especially in terms of legal advice and interpretation. Training is needed to address gaps in knowledge and understanding of SOGI as concepts and as life experiences, although it cannot be the only answer to all these shortcomings in domestic asylum systems (LaViolette 2013). In addition, we found a generally low standard of COI in Germany and Italy, but better provision and practice in COI in the UK. However, commenting on this UK practice, Roberto (decision-maker, Italy) emphasised the risk that COI is used to turn individual assessment into an ‘automatic box-ticking exercise’, thus providing clear solutions (‘modelli matematici’) to life changing decisions. Overall, many doubts were raised about whether European asylum authorities are correctly implementing the Refugee Convention, read in line with the UNHCR SOGI Guidelines and in light of our theoretical and analytical frameworks (Chap. 3), when SOGI claimants are involved. We also came across some positive practices, especially in Italy, for instance in terms of the designation of the interviewer in SOGI claims and of administrative and judicial collective decision-making in many asylum claims. Yet, these were not common to all countries analysed, nor were they applied consistently within each country.

Factors such as Brexit, the rise of anti-immigration political parties, the media portrayal of immigration flows, and the lack of investment and resources, cast doubts on the likelihood of positive developments in this area, despite the range of actions that might easily be taken (Chap. 11). Moreover, the future reform of the CEAS, which might lead to improvements to many of the procedures analysed above (at least in Germany and Italy) if these are implemented in a human rights compliant manner (Chap. 3; Ferreira 2018; Velluti 2014), is today uncertain. Despite these macro-level changes and the persistent impact of biased attitudes, on the ground some decision-makers are clearly worried by the role to which they have been assigned. As Filippo, a senior judge in Italy, explained: ‘it’s [asylum] a situation of extreme difficulty. I feel a profound discomfort (…) for this task [and] I wonder if the judiciary is the authority best placed to deal with it’.

In turn, SOGI claimants do not feel their suffering is properly addressed by the existing systems. As Nice Guy (focus group no. 1, northern Italy), put it:

People come here, they keep preparing for Commission, Commission, Commission, many of them, a week to the Commission, they have sleepless nights, they are so scared. They get there and… the Commission is not friendly, that is just issue, it is not friendly. They just put you in front of somebody as if you are doing a job interview and start bombarding you with questions.

Their frustrations sometimes lead them to blame themselves for ‘being’ what they are. As Lutfor, who claimed asylum in the UK, explained:

Do you know how hurtful I was, how ashamed I was, of me how much I have to struggle, how much feel guilty about myself, then slowly, slowly I accept myself but it is still every time I have sex, I feel guilty. (…) I don’t hurt anyone, [but] sometimes I blame the system, sometimes I blame myself.

Whether or not these life experiences are duly considered in the assessment of their claims in Germany, Italy and UK will be addressed in the next chapter.