1 Introduction

Public international law and, more specifically, international human rights law protect the right to access an asylum determination procedure and the principle of non-refoulement, as established in Chap. 3. Some would argue that asylum should not be seen by states as their own prerogative, but rather as a fundamental human right (Díaz Lafuente, 2014, pp. 206–207). How the right to access an asylum determination procedure and the principle of non-refoulement are implemented varies from country to country, including within the EU, as discussed in Chap. 4. Chapter 6 dissected the different procedures adopted to adjudicate SOGI claims of international protection in Germany, Italy and the UK. In this chapter, we focus on the decision itself by analysing the Refugee Status Determination (RSD) process in the three countries studied. In the process, we highlight similarities and differences, merits and shortcomings, and often inconsistencies with supranational and international standards.

Despite the growing body of literature on SOGI asylum adjudication,Footnote 1 some areas remain under-explored and require further analysis, as we begin to do here. We start by discussing the Refugee Conventiongrounds used in SOGI asylum claims (Sect. 7.2.1) and the prevalent application of the notion of ‘Particular Social Group’ (PSG) to SOGI claims (Sect. 7.2.2). In this section, we discuss the often ignored option of SOGI minorities using Refugee Conventiongrounds other than PSG and highlight the difficulties that some SOGI claimants have in ‘fitting’ into a PSG. We then explore how the notion of ‘persecution’ is interpreted in SOGI claims (Sect. 7.3), in particular how adjudicators deal with the criminalisation of same-sex conduct (Sect. 7.3.1) and make use of legal tools such as the ‘discretion argument’ (Sect. 7.3.2) and the ‘internal relocation alternative’ (Sect. 7.3.3). Section 7.3 thus presents a much-needed exploration of the inconsistent ways in which the criminalisation of same-sex acts and internal relocation alternative are used in SOGI asylum adjudication, highlighting that the ‘discretion argument’ is still very much alive, despite conventional wisdom on this matter telling us otherwise.

Next we analyse the standard and burden of proof adopted in SOGI asylum claims (Sect. 7.4.1) and the types of evidence required and accepted (Sect. 7.4.2). Here we conclude not only that the standard of proof often applied to SOGI claims is in violation of the principle of the benefit of the doubt, but also that the way the burden of proof is applied is in violation of UNHCR guidance. This is followed by an analysis of how credibility is assessed in the context of SOGI asylum claims (Sect. 7.5), where we identify the persistence of a culture of disbelief in SOGI asylum systems. We find significant scope to improve the way SOGI claimants’ credibility is assessed. The characteristics of possible and usual outcomes of the RSD process in relation to SOGI claims are then considered (Sect. 7.6), focusing on the need for an intersectional approach to ensure appropriate decision-making. A summary assessment of the substantive adjudication of SOGI asylum claims is offered at the end (Sect. 7.7), and we link our discussion to broader debates about epistemic justice in the asylum system. In this chapter, we show that many serious problems still affect SOGI asylum adjudication in Europe, often because decision-making fails to apply the theoretical and analytical frameworks adopted in these volumes.

2 Using the Grounds for the Recognition of Refugee Status

The international refugee regime, including the Refugee Convention, was a response to the persecution of members of religious/ethnic minorities by fascist regimes in mid-twentieth century Europe (Juss, 2018). As Oscar, a judge in Germany, pointed out, the archetypal refugee is a member of the Jewish population in Nazi Germany, which narrows down the mind-set of decision-makers until today:

our asylum law has always almost… it brings out the image of the Jews who have tried to reach Switzerland during the Nazi regime – that’s always for me the absolutely, the classic asylum seeker: persecuted because of their “race” and they knock on Switzerland[’s doors] and say: “We want to have asylum here”.

SOGI minorities were thus not explicitly considered during the preparation of the Refugee Convention, despite the persecution of gay and lesbian people in Nazi Germany (Grau & Shoppmann, 2013), and it took several decades to introduce and establish the idea that they could also secure protection using the Refugee Convention, namely by using the PSG ground (Chap. 1). Here we consider the range of Convention grounds available and what use SOGI claimants make of them.

2.1 Choosing from the Five Refugee ConventionGrounds

The Refugee Convention makes express reference to five grounds on the basis of which the ‘well-founded fear of persecution’ can be invoked: ‘race’, religion, nationality, membership of a PSG and political opinion. Although there are still some – very rare – instances of decision-makers finding it difficult to connect SOGI to one of the Refugee Conventiongrounds,Footnote 2 it is now legal dogma that SOGI minorities fall within a PSG. Indeed, although SOGI claimants can potentially make an asylum claim on the basis of any of these grounds, it is the case that claims are almost invariably based on the PSG ground. Other reasons for persecution are mostly absent in this field, despite their potential applicability (Balboni, 2012, Chap. II; Braimah 2015b). As Cristina, a UNHCR officer, said:

Very often there is a tendency to take for granted that SOGISC [sexual orientation, gender identity and sexual characteristics] cases fall within the particular social group, while often an evaluation of political reasons or religious reasons is not made, based on the context, so I would say that there is an insufficiently deep analytical-juridical elaboration.

Our fieldwork has confirmed the historic and current prevalence of the use of the PSG ground in SOGI asylum claims in the countries under comparison, even if we have come across a few exceptions to this rule.

One such case, referred to us by Emilia, a judge in Germany, was that of an LGBTIQ+ and Kurdish activist, who was thus potentially persecuted on grounds of membership of a PSG but also political opinion. Still in Germany, Marlen, a legal advisor, told us of an asylum claim on grounds of religion, lodged by a trans claimant who did not mention gender identity at the first claim stage but introduced that element at the appeal stage. Mariya, an NGO worker in Germany, also spoke about a SOGI claimant who had an ethnic minority background in the country of origin, thus exposing him to further persecution on this basis. Although the asylum claim was based on both PSG membership and ‘race’, the asylum authorities failed to grasp the way in which the intersection of these two grounds contributed to a stronger risk of persecution, and denied international protection. Diana spoke of her participation in theatre plays, involvement with LGBTIQ+ groups and publications in Iran, which attracted the attention of the police. This combination of activities offered her the potential to claim international protection both on grounds of membership of a PSG and political opinion. Similarly, Marhoon and Halim described their activities as LGBTIQ+ activists and human rights defenders (in the case of Marhoon, also linked to his atheist belief), and Mahmoud mentioned his political activities to BAMF, but all these three claims were eventually adjudicated exclusively on the basis of SOGI.

In Italy, we also found cases involving Refugee Conventiongrounds beyond PSG. One case involving a Nigerian claimant, reported to us by Valentina, a social worker, combined both sexual orientation (bisexuality) and gender identity (male-to-female), thus remaining within the PSG ground of the Refugee Convention but adding another layer of complexity to the claim. A more obvious – and successful – case of multiple grounds was described to us by Kamel, whose asylum claim was based on gender identity (PSG), activity as journalist, activist and volunteer as anaesthetist in areas of military conflict (political opinion), and atheist belief (religion). Another case, referred to us by Celeste, a social worker, was that of a claimant who was persecuted on the basis of forced marriage, SOGI and religion, thus potentially making use of two grounds of the Refugee Convention. This claim was, however, received with suspicion by the authorities, something which we will return to below (Sect. 7.5).

In the UK, as well, there were isolated instances of asylum claims combining different Refugee Conventiongrounds, such as the case of Miria (combining political activity and sexual orientation), Ibrahim A. (combining his sexual orientation and LGBTIQ+ activism), Ximena (combining human rightsactivism and gender identity), as well as Amber (combining SOGI identity, political activity and – perceived – religious identity):

Being in a “particular social group” [LGBT], I was also involved in some political activism in Malaysia. I was one of the early members of an NGO called Pelangi. Pelangi means rainbow in English, and we are an organisation campaigning for equality and human rights. (…) we did organise events for the community, but specifically in June where we hosted a Pelangi day event consisted of a panel discussion, an iftar meal inspired by “The Big Gay Iftar” initiative by current Mayor of London, and a film screening. Little did we know, the event went viral and reached the public eye, and they deemed it as disrespectful especially towards the “Big Gay Iftar” slot, as the public is too sensitive about associating the word gay with iftar to even going as far as saying we were deliberately disrespecting the holy month of Ramadan. So, things got heated pretty quickly and many of us in Pelangi were feeling unsafe, and some of us left the group for their own safety.

Even when another Refugee Convention ground seemed more relevant than PSG, that was often sidelined:

my claim was based on my LGBT activism and on my sexual orientation, but basically they [Home Office]… she [caseworker] only focused, she asked me of course about my LGBT activism, but she only focused on my sexual orientation. (…) Not at all [interested in my political activism]. (…) What is worrying me more is my activism and the work I do. (…) Like she had it on paper and she felt like she had to mention it because I wrote it, but she didn’t focus on it. Like for me the interview was mostly focused on my sexual orientation and the idea that I will not feel free to practice it if I went back to Egypt, yes (Ibrahim A.).

Such exclusive focus on the claimants’ SOGI at the expense of other aspects of their lives and grounds to claim international protection reduces SOGI claimants to uni-dimensional beings who are exclusively characterised by their SOGI, but not by their political activism, religious beliefs, ethnicity, etc. Furthermore, although some decision-makers told us they fully considered all grounds for international protection available within each single claim (Maurizio, judge, Italy), with the exception of Kamel’s case, decision-makers in all the cases mentioned above tended to focus on one ground and make a decision in relation to that ground, rather than considering the overall risk of persecution based on the cumulative and intersecting effect of the grounds in question. The failure to adopt an intersectional approach (Chap. 3) leads to a partial portrayal of claimants’ persecutory experiences. In particular, it erases the political nature of many SOGI minorities’ claims and their activism (Chap. 5).

PSG thus remains the main asylum ground for members of SOGI minorities. How to conceptualise one’s membership of a PSG in terms of one’s SOGI is always problematic, as we will now discuss.

2.2 SOGI and ‘Particular Social Group’

The notion of PSG is not defined in the Refugee Convention, and it has thus been object of extensive case law and literature in different jurisdictions (Arnold, 2012; Berg & Millbank, 2013; Braimah 2015a, b; Millbank, 2009b; UNHCR, 2002a, b). In the EU context, the key source in this regard is Article 10(1)(d) of the Qualification Directive:

a group shall be considered to form a particular social group where in particular:

  • members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

  • that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society (our emphasis).

While SOGI are now recognised as characteristics that may lead to a finding of membership of a PSG, as we have explored elsewhere, the way these criteria have been interpreted by the CJEU is contentious (Ferreira, 2018, p. 30). The relevant criteria include two tests: the ‘fundamental characteristic test’ and the ‘social recognition test’. UNHCR Guidelines recommend an alternative application of these tests, so it should be enough to satisfy one of them (UNHCR, 2002a, b, para. 2), but the CJEU, in X, Y and Z,Footnote 3 opted for a cumulative application, thus requiring that both tests be satisfied for an individual to be recognised as a member of a PSG. This reading of the norm is based on the use of the word ‘and’ between the tests, ignoring that the tests are introduced with the words ‘in particular’, implying that other defining characteristics of a PSG may exist and these criteria should not be applied in a restrictive way. Furthermore, the tangible impact for individual claimants of a cumulative two-limb test is that:

some refugee-status decision-makers have found that, while certain applicants’ claims satisfied the protected characteristics limb, they did not meet the social perception limb, either because the group of LGBTI persons are not visible within a given society or because the individuals themselves are not “out” enough to be perceived as part of that group by society (ICJ 2016, p. 201; references omitted).

In X, Y and Z, the CJEU more positively asserted that the existence of criminal laws targeting SOGI minorities supports the finding that those persons form or belong to a PSG. Against this background, we now look into how the three countries under comparison generally apply the notion of PSG to SOGI asylum claims.

In Germany, the 1988 seminal decision of the Federal Administrative Court applying the notion of ‘political persecution’ to SOGI asylum (Chap. 4) led to a long line of questionable decisions, effectively leaving some SOGI claimants without international protection.Footnote 4 For instance, in 1998 the Administrative Court of Regensburg referred to a medical report arguing that the claimant’s sexuality was not ‘compulsive’ and ‘abnormal’, and that therefore he could fulfil his sexual urges by masturbating.Footnote 5 More positively, there have also been cases where asylum has been granted to SOGI claimants from countries where Sharia law applies and punishes same-sex sexual conduct, as persecution could be feared because of ‘otherness’, thus falling within the scope of protection of the right to political asylum and human dignity under the German Basic Law.Footnote 6 The more restrictive line of case law of the Federal Administrative Court and the administrative courts became outdated when persecution on grounds of sexual orientation came to be recognised under the PSG ground, following the definition of PSG according to the Qualification Directive (§3(1) of the Asylum Act). It now does not (or, at least, should not) matter whether the sexual orientation of the claimant is so ‘inescapable’ as to preclude abstinence from same-sex sexual activity.Footnote 7

When establishing membership of a PSG, the BAMF and courts in Germany have followed the cumulative approach argued for by the CJEU (BAMF, 2017, p. 282). This means that individuals need to demonstrate both that they share an innate or fundamental characteristic or common background, and also that they are perceived as having a distinct identity. In internal instructions, the BAMF clarifies that at least one common group-identifying characteristic has to be identified: a shared innate characteristic, a common immutable background, or common characteristics or beliefs that are so important to the identity or conscience of the person concerned that renunciation would be unreasonable (so-called ‘indispensable features’). The BAMF lists sexual orientation amongst the latter characteristics (BAMF, 2017), and, according to some of our participants, ascertaining membership of a PSG remains a key (if not the key) element in SOGI asylum claims in Germany (for instance, Elias, lawyer).

In order to demonstrate membership of a PSG, claimants have often needed to present a fixed and linear narrative of gay identity, according to a Western epistemic framework. In tension with the queer theoretical framework adopted in Chap. 3, decisions are often based on an understanding of sexual orientation as definitively fixed at a particular age in an individual’s life;Footnote 8 we instead adopt the understanding that sexual orientation and gender identity are fluid, rather than static or siloed, categories. For example, participants in Germany pointed out that if claimants report having become conscious of their non-heterosexuality only when they reached their twenties, they would be unlikely to meet the PSG criteria because their sexuality would not be found to be ‘irreversible and inescapable’ (Sofia and Emma, NGO workers), in terminology reminiscent of the 1988 decision discussed above that should no longer be valid.

Furthermore, and in parallel with BAMF’s culture of disbelief (Sect. 7.5), we observed a trend to deny PSG membership because of elements relating to social visibility, rather than the claimant’s characteristics. For example, in letters of refusal to some of our participants, the BAMF stated that it ‘is doubtful whether the social group of LGBT members for the country of origin Russian Federation can be distinguished with sufficient certainty even through the local prohibitions and/or through the nationwide propaganda ban on non-traditional sexual relations’ (decisions regarding Veronica and Julia). This is inconsistent with UNHCR standards (UNHCR, 2012, para. 48) and contradicts the CJEU assertion that the existence of legislation targeting SOGI minorities supports the finding that those persons form or belong to a PSG.

Similarly, in the UK, a cumulative approach to the PSG tests is followed. Before 1999, SOGI claimants had difficulty meeting the criteria for refugee status following a High Court ruling stating that they did not constitute a PSG because their only common characteristic of sexual orientation was normally concealed.Footnote 9 SOGI claimants are now generally recognised as members of a PSG as a result of the House of Lords judgment in the case of Shah and Islam, where it was found that women in Pakistan constituted a PSG.Footnote 10 The same approach was applied to SOGI,Footnote 11 which falls in line with the EU Qualification Directive. Having to satisfy both the ‘fundamental characteristic’ and the ‘social visibility’ tests has led a practitioner to encourage clients presenting to a judge ‘to bring friends from the gay community and referred to it as a “pink parade”’ (Arnold 2012, p. 106).

In contrast, in Italy, decision-makers adopt an alternative approach to the ‘fundamental characteristic’ and the ‘social visibility’ tests, thus adhering to the UNHCR guidelines.Footnote 12 Consequently, for the recognition of a PSG in the Italian system, it is sufficient that its members share a common characteristic fundamental to their personality (such as sexual orientation or gender identity) or that they are perceived as such by the rest of society in the country of origin. In other words, when implementing the EU Qualification Directive, Italy decided that these two requirements did not need to be satisfied at the same time to identify a PSG. SOGI are expressly recognised as personal characteristics relevant to the determination of a PSG in light of the specific situation of some countries of origin. Once a claimant’s SOGI is found to be credible (Sect. 7.5), establishing PSG membership is generally unproblematic, although the reasoning adopted for the finding is not always specified. Our participants rarely raised this matter, and PSG seems to be more often than not a ‘given’, with the RSD process tending to focus on the risk of persecution (Sect. 7.3) and credibility assessment (Sect. 7.5). This approach is also followed by territorial commissions (Celeste, social worker) and lower courts when SOGI claimants appeal against negative decisions by territorial commissions. For example, the Court of Appeal of Trieste, in a case involving a gay claimant from the Gambia, decided that it was irrelevant to ascertain whether the claimant was effectively gay or not, as what mattered was how he was perceived by Gambian society and the consequences of that perception.Footnote 13

Across all three countries under comparison, bisexual claimants may find themselves entangled in inadequate understandings of sexual orientation, which have an impact on establishing PSG membership. This may be due to an inherent tension between, on the one hand, refugee law and related decision-making, which is about establishing facts and definitive accounts, and, on the other hand, sexual orientation, which is fluid both over time and at any one moment (Chap. 3). The reference to an ‘innate characteristic’ in the PSG definition in the Qualification Directive is likely to prove particularly problematic for bisexual claimants if it is prioritised over the other elements in that sentence, in particular, ‘a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’. It seems to be often assumed (even if implicitly) that bisexual claimants can choose between heterosexuality and homosexuality. Bisexuality and fluid forms of sexuality are thus devalued and unrecognised, leading to credibility assessments based on collective heteronormative knowledge and essentialising non-heteronormative ways of life (Sect. 7.5; Hübner, 2016).

Participants in Germany told us that the BAMF tends to be dismissive of bisexualclaimants, because they are perceived as needing to ‘make up their minds’ and able simply to ‘opt for being heterosexual’ (Gisela, lawyer). We were also told that it is ‘harder to work’ with claimants with less ‘clear’ and ‘classic’ sexual identities, such as claimants who have had opposite-sex relationships in the past and have children (Nina, legal advisor; Sofia and Emma, NGO workers). Court decisions may subsume bisexuality within homosexuality, or fail to recognise bisexuality where it is the most appropriate identifier,Footnote 14 thereby contributing to the invisibility and erasure of individuals claiming on this basis (Klesse, 2018; Monro et al., 2017). Ignoring queer theoretical approaches, decision-makers leave bisexual claimants out of the scope of protection of a PSG, as in a decision by the Administrative Court of Saarland, where the judge argued:

Due to his predisposition, the claimant would be in a position to have a relationship with a woman in Algeria and to live out his sexuality. This assumption is supported by the fact that the claimant has already become the father of a child in Germany. In that respect, the present case differs from the cases decided by the CJEU, which dealt with the homosexual orientation of those affected. However, in case of homosexuality, the person would be, unlike the claimant in the present case, forced to completely deny their sexual orientation or to live in secret in order to escape the danger of punishment in Algeria.Footnote 15

Even though the claimant had been in a two-year relationship with a man at the time this decision was made, the Court decided that the claimant could relocate within Algeria and carry on meeting men ‘discreetly’ (Sect. 7.3.2).

In Italy, bisexual claims are also problematic, indicated by the absence of such claims in our fieldwork, in other scholarship and in NGO materials. This also emerges from the fact that claimants are sometimes encouraged by legal advisors and support groups to adopt homo-narratives to be more convincing (Chap. 6, Sect. 6.2). Bisexual claimants may also face obstacles to recognition in the UK, where the leading judge in HJ (Iran) said that the PSG was ‘defined by the immutable characteristic of its members’ sexual orientation or sexuality’ (para. 11). There is a perception that bisexual claimants are at a disadvantage:

say, if the Home Office accepts someone is bisexual and if LGBT rights could be non-existent in their country, but the Home Office can always argue, and usually do that, “well, they can still have relationships, you know, they can still function in that society with sort of opposite sex partner (Amelia, NGO worker).

Similar considerations affect trans claimants, if to a lesser or different extent. The fluidity of gender identity has been explored in the context of asylum, where it has been shown that transgender people claiming asylum are not only reabsorbed within the gender binary system (Vogler, 2019), but may also present or be accepted as claiming on the basis of sexual orientation rather than gender identity, serving to disguise the level and nature of transgenderpersecution (Berg & Millbank, 2013, p. 140). This reflects a lack of understanding of the difference between sexual orientation and gender identity, and harms the chances of success of subsequent trans claims. In Germany, gender fluid claimants are seen as an ‘implosion’ and ‘challenge’ for decision-makers who wonder what is the PSG in question (Nina, legal advisor). We were also told that a trans claimant may define herself as ‘gay’ because she is familiar with the word ‘gay’, while at the same time she identifies as a woman who feels attracted to men, and is thus a ‘trans woman’ according to Western LGBTIQ+ terminology (Noah, NGO social worker). Decision-makers need to be receptive to variations in the use of such ‘labels’ and not impose a simplistic application of templates (Kadir, NGO worker). Similarly, in Italy, we were told that trans claims can constitute a challenge for decision-makers:

In some countries, people do not call themselves trans, and in that case you cannot force a person to fall into a category that we ourselves have created, we have given to ourselves, which can be good for me, can be good for you, can be good for an Italian or American transgender person, but it may not be good for a trans person whom we perceive as trans, whom we identify as a trans from an African country or a Middle Eastern country (Cristina, UNHCR officer).

Fitting trans claims into a particular PSG is thus likely to require ‘cultural translation’ skills that many decision-makers lack. This is also true in the UK, where the limited information available about trans asylum claims is a challenge to decision-makers and activists alike – a challenge compounded by the absolute lack of information about intersex claims or the experiences of people claiming asylum with intersex variations (APPG on Global LGBT Rights, 2016, p. 13). To a lesser extent, trans claimants have also been underrepresented in the literature historically. An international study of transgender people’s asylum claims between 1994 and 2011 found only three trans asylum decisions in the UK (Berg & Millbank, 2013). Acceptance of gender identity claims has been even slower than acceptance of claims based on sexual orientation – not helped by the UK’s failure to opt into the recast Qualification Directive, which explicitly covers transgender people (Arnold, 2012, pp. 106 and 118). Gender identity issues are often omitted in research and reports on sexual minority asylum claims – the Vine Report did not cover gender identity cases (ICIBI, 2014) – or appear as an afterthought. At one time, UKLGIG stated that they received few requests for support from transgender claimants and thought claimants were often unaware that gender identity can be the basis of an asylum claim (UKLGIG, 2013, p. 7).

Significant issues thus remain for all SOGI claimants in relation to determining membership of a PSG. In line with our theoretical and analytical underpinnings (Chap. 3), decision-makers need to be more flexible in relation to SOGI identity variations (Hinger, 2010, p. 402) and aware of different cultural perceptions of certain SOGI identities that may be less familiar in the Western context, but more relevant in the case in question, such as ‘men who have sex with men’ (Sridharan, 2008). Only like this these identities can be tools for liberation, rather than oppression. As we heard from one of our participants, there may even be a dynamic process of self-identification throughout the asylum claim process – for example, a transition from identifying as a gay man to identifying as a trans woman – and this needs to be accommodated by decision-makers (Louis, NGOvolunteer, Germany). The same claimant may present and be perceived in different ways at different times and in different contexts: one claimant who described herself as a lesbian on arrival and would have been persecuted as such in her country of origin, identified as a trans man at the time of his (successful) appeal hearing (Upper Tier Tribunal observation, London, 2018). These variations in SOGI self-identification and the different meanings accorded to the various letters in the ‘LGBTIQ+’ acronym in different contexts and times require far greater awareness of the fluidity of SOGI self-identification on the part of everyone involved in the asylum system (Noah, NGO social worker), something that can be improved through greater investment in training (Chap. 11).

For these reasons, there have been calls to move away from what some have described as a ‘fixation’ on whether claimants are ‘truly’ LGBTIQ+ (Jules, staff member at ILGA-Europe). Accordingly, the Italian Supreme Court has affirmed that the judge is not called to ascertain if claimants are ‘truly’ LGBTIQ+, but only if they may be persecuted on that ground.Footnote 16 This has also been highlighted by the CJEU in the F case.Footnote 17 The need to focus on the basis of persecution rather than on the individual’s ‘true’ identity is obvious in relation to an ‘imputed’ SOGI, and there needs to be greater recognition in other SOGI cases that what is important is not ascertaining the claimant’s identity but assessing the harm that they may suffer (Chiara, NGO worker, Italy; Silvana, judge, Italy). As also suggested by scholars (Dustin 2018), this would shift the focus from the PSG to the notion of persecution, to which we now turn.

3 Reaching the Persecution Threshold

Besides establishing membership of a PSG, asylum adjudicators also need to determine that there is a ‘well-founded fear of persecution’. According to Article 9(1) of the Qualification Directive, for an act to constitute persecution, it needs to:

  • (a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

  • (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).

This definition still leaves much leeway to each country to determine who falls within their remit of protection.Footnote 18 Determining a ‘well-founded fear of persecution’ remains a considerable challenge in SOGI claims in some asylum systems, for example, in Germany (Gisela, lawyer).

In relation to SOGI claims, decision-makers tend to consider as relevant human rights violations such as physical or psychological violence, legal and administrative measures that are discriminatory in themselves or are applied in a discriminatory manner, and discriminatory criminal sanctions. We would however argue, in line with the framework expanded in Chap. 3, that every human rights violation can potentially lead to a well-founded fear of persecution if it leads to restricting or denying one’s SOGI, especially considering that this fear is strictly individual and any person can experience it differently. The assessment of whether there is a ‘severe violation of basic human rights’ in the claimant’s country of origin or not, is an exercise carried out with little degree of consistency across countries or even within the same country. On the contrary, it remains a subjective exercise, highly dependent on each decision-maker. In Italy, for example, there may be no consideration of specific human rightsviolations suffered in the country of origin. It is more important that the claimant is able to offer a coherent account of their experience (Sect. 7.5), combined with evidence that, at a general level, SOGI minorities’ human rights are breached in the country of origin. This goes beyond the issue of whether or not there are laws criminalising same-sex acts (Sect. 7.3.1). For instance, the Tribunal of Milan has considered the social attitudes in the Ivory Coast against SOGI minorities to be sufficient for granting refugee status to a male claimant, despite the absence of criminalising legislation.Footnote 19 In contrast, in the UK, sometimes not even the criminalisation of same-sex conduct, police violence and social stigma is enough:

Say someone is from Bangladesh [where same-sex acts are punished criminally] and a series of reports say police mistreated this person, a Pride march is broken up, then you’ve still got to pull that together. Just because someone’s been beaten up, does that mean everyone will be? (Ernest, judge, UK).

As for what constitutes an ‘accumulation of various measures’ that may give rise to persecution, although there is no international consensus, it is clear one needs to take a holistic – and intersectional, we argue – approach to claimants’ experiences:

But I think that also when you are not in this kind of situation [risking death penalty], there can be multiple discriminations that come together, because of your sexual orientation, gender identity, but also because of other aspects that actually force you to leave the country and then look for asylum somewhere else. So I think it is very important to have this more holistic image in order to take a decision in the end (Terry, member of the European Parliament).

We can again use an Italian example, this time involving the case of a gay man from Benin. While the territorial commission denied refugee status because it found there was no risk of persecution, the Tribunal of Trieste stated that the intimidations, the loss of job, and the violence suffered by the claimant after his sexual orientation became publicly known did amount to persecution.Footnote 20 On other occasions, territorial commissions themselves deemed that the existence of a homophobic environment preventing a gay man from living openly his sexual orientation was sufficient to ascertain persecution.Footnote 21 This was also affirmed in relation to claimants from Russia, especially after the adoption of the law against ‘homosexual propaganda’.Footnote 22 In Germany, however, in the case of a lesbian woman from Russia,Footnote 23 the Administrative Court of Potsdam decided that even though discrimination against SOGI minorities existed, there was no persecution of homosexuals across the country that would allow the finding that there is a ‘considerable likelihood’ of persecution of the claimant. Furthermore, the discrimination experienced by SOGI minorities in the host country – in this case the UK – may be used to argue that not every experience of discrimination can be the basis of international protection:

persecution is an extreme situation. And, frankly, people are not entitled to refugee protection unless discrimination has reached that very high threshold. And, that is where, I am afraid, people have to live with discrimination. I mean, there will be parts of the United Kingdom where gay and lesbian people will suffer discrimination… (Adrian, judge).

What often also transpires in SOGI asylum decisions is the idea that SOGI claimants should be content with a smaller scope of rights and freedom than European citizens (Allan, lawyer, UK). As Butler (2004) highlights, such views on queer lives make them less liveable, if liveable at all. Even when there is legislation protecting some SOGI minorities, such as Pakistani legislation protecting the gender identity of hijras, there may be discrimination and lack of protection by public authorities (Louis, NGOvolunteer, Germany), so the existence of formal statutory protection should not be interpreted as precluding persecution (UNHCR2012, para. 37). This affects European countries themselves, with legal protection of SOGI minorities still not fully reflected in social practices and individuals still needing to escape persecution (Titti, decision-maker, Italy).

In the UK in particular, decision-makers often placed considerable importance on the degree of visibility of claimants in the host country as the basis for determining whether or not it would be safe for them to return to their home countries, sometimes using the claimant’s lack of a ‘public profile’ to deny the risk of persecution upon return (Zena, First Tier Tribunal Appeal, London, 2018, decision paper, para. 47c). At the same time, commentators have been critical of UK Home Office decision-makers’ depictions of SOGI asylum as a claim for clubbers’ rights by people from countries without a ‘gay scene’, rather than flight from imprisonment and violence, pointing out that this discriminates against anyone who does not fit such stereotypes (Juss 2015; Millbank 2009b, p. 19). Our fieldwork confirmed that these issues persist and we will return to this in the context of our discussion on credibility (Sect. 7.5).

It is also worrying that some decision-makers seem to require persecution to have already occurred in the country of origin, rather than focussing on the future risk of persecution. This was reported by several participants in Germany (Thomas, NGO volunteer; BAMF decision appealed in Court observations, Hesse, 2018, 2019; decision regarding participant DE34 in Held et al. 2018). The lack of past persecution, even in the case of countries with well-documented widespread homophobia like Guyana, is seen to count against claimants (Leon, NGO worker, Germany). Claimants understandably react strongly to such expectation:

I haven’t faced any violence or attack. Do I have to go back to Iraq and be beaten or killed to prove that I am in danger in my country? Would you be convinced if I was attacked in Iraq? (Court observation, Hesse, 2019).

What matters from a legal perspective is the risk of persecution upon return (UNHCR 2016, paras 24–25 and 89–92), irrespective of whether persecutory acts have already been carried out or not. Decision-makers should, therefore, always make a forward-looking assessment.

Past debates about the relevance of private actors to establishing a risk of persecution in asylum claims have been largely superseded, with asylum adjudicators in the EU now being in agreement that it is possible to grant international protection when the agents of persecution are not national authorities but private agents, under Article 6 of the Qualification Directive. What is relevant is whether the country of origin’s authorities are able or not to protect an asylum claimant from private acts of persecution on one of the grounds provided by the Refugee Convention. For example, in Italy, in the case of a gay man from Ecuador who suffered violence inflicted by family members, the Court decided that ‘the general situation of impunity’ made the protection by Ecuadorian authorities illusory, thus warranting granting refugee status.Footnote 24 SOGI asylum claimants benefit from this understanding, as many of our participants suffered persecution at the hands of parents and carers (Ibrahim, Germany; William, Germany; Momo, Italy; Buba, Italy), partners (Rosette, Germany), cousins (Shany, Germany), extended families (Alain A., Italy), radical religious groups (Ibrahim, Germany), criminals and other members of the community (Ximena, UK), public mobs (Alphaeus, Germany) and, more generally, members of the public (Siri, Italy), as also explored in Chap. 5. Nonetheless, some of our participants were convinced that decision-makers were much less likely to grant protection when persecution was carried out by private actors, such as family members, which betrayed a troubling misunderstanding of the legal framework and the social mechanisms of oppression in some countries of origin (Thomas, NGO volunteer, Germany).

While the role of private actors is reasonably clear, there is little consensus across, or even within, the countries studied as to what matters when assessing the ‘risk of persecution’. Here, three themes emerged in our fieldwork, to which we now turn: the importance of criminalisation of same-sex acts (Sect. 7.3.1), the ‘discretion argument’ (Sect. 7.3.2), and the ‘internal relocation alternative’ (Sect. 7.3.3).

3.1 The Criminalisation of Same-Sex Acts

The CJEU used its judgment in X, Y and Z to assert that the criminalisation of same-sex acts does not in itself constitute an act of persecution. Although this decision was considered balanced and flexible enough by some of our participants (Helena, EASO staff member), it runs against UNHCR guidance stating that criminalisation should generally be sufficient to claim persecution (UNHCR2012, para. 26 ff). The CJEU decision also ignores scholarly recommendations (Jansen and Spijkerboer 2011), and fails to place these criminal law norms within their broader societal context of discrimination and intolerance (ICJ 2014; Markard 2013). Furthermore, it ignores the realities of countries such as the Ivory Coast, where despite the lack of actual prosecutions, the legislation is used to facilitate blackmail, discrimination and harassment, including on the part of the police (Gisela, lawyer, Germany; Damiano, lawyer, Italy). Therefore, even if the criminalisation of same-sex acts is not considered persecutory in itself, we should give greater recognition to the import that it has in the asylum context:

But the very fact that the law exists, and there is no willingness to remove it from the books… I think is a bit of a red flag. And also the very fact that they exist means that it is open to abuse. That means from today to tomorrow you can have immense problems (Jules, staff member at ILGA-Europe).

Germany, Italy and the UK have followed separate paths in this regard. In the German context, initial case law of the Federal Administrative Court focused on whether legislation criminalising same-sex acts could be justified on grounds of maintaining ‘public morality’.Footnote 25 For instance, as recently as 2006, an administrative court argued that ‘Islamic cultures’ may restrict same-sex acts because of the country’s prevailing morality without this constituting political persecution.Footnote 26 More recent case law abstains from this type of argument. BAMF instructions clarify that, in relation to the assessment of fear of SOGI-related persecution, ‘[a]n imminent persecution is always to be assumed if the applicant makes it credible to be threatened by a relevant imprisonment existing in the country of origin and if this is actually imposed there’ (BAMF2017, p. 289). Enforcement of criminalisation is thus taken seriously at a policy level, but the existence of ‘anti-homosexuality laws’ is not sufficient to prove a risk of persecution.

Refusals are often based on the reasoning that existing laws are not used, or that there is no evidence that these laws are used, or that they are used but without harsh sanctions (Barbara, lawyer; Kadir, NGO worker; Marlen, legal advisor). There seems to be an increasing number of refusals based on the idea that such cases lack ‘asylum relevance’. While courts have focused more on the ‘discretion argument’ in the past (Sect. 7.3.2), in recent years they have more often argued that the threshold for ‘asylum relevance’ has not been met. For instance, in a decision by the Administrative Court of Frankfurt am Main,Footnote 27 the appeal of a bisexual man from Ghana was dismissed with the argument that, although there were homophobic tendencies in the Ghanaian society, criminal prosecution did not take place in practice and only certain homosexual practices were prosecuted, not a ‘homosexual disposition’ in itself. Similarly, the case of a gay man from Kenya was dismissed by the Administrative Court of Potsdam,Footnote 28 with the argument that although the Kenyan Criminal Code provides for up to fourteen years’ imprisonment for homosexual acts, there is no evidence that these penalties are, in fact, imposed and executed. Other court cases, involving a gay man from Albania and a bisexual woman from Morocco,Footnote 29 offer further examples of asylum rejections on grounds of lack of ‘asylum relevance’, despite the existence of criminal laws against SOGI minorities in the countries of origin.

Our fieldwork also provided examples of this practice. In the BAMF refusal letter shared by one of our participants, it was argued that the ‘applicant’s submission of facts does not show any refugee-relevant persecution. The Federal Office has no information that homosexuality in Lebanon leads to persecution. State prosecution of homosexuals can be ruled out’ (decision regarding Ibrahim). Other participants affected by this approach are lesbian women from Jamaica, who, not being explicitly targeted by Jamaican ‘buggery laws’, are not seen as being at risk of persecution in Jamaica, despite being victims of discrimination and hate crime as are other SOGI minorities (Angel).

There are also glaring inconsistencies in decision-making with regard to ‘asylum relevance’ according to country of origin. In Germany, this appeared to particularly affect claimants from Uganda and Jamaica, where courts come to different conclusions with regard to how safe these countries are for SOGI minorities. For instance, a decision by the Administrative Court of Munich on the case of a lesbian woman from Uganda dismissed the appeal, arguing that even after tightened penalties came into force in 2014, there were no convictions for homosexual charges in Uganda and governmentagencies did not tolerate attacks by non-state actors against homosexuals.Footnote 30 In the same year, however, the Administrative Court of Frankfurt am Main decided on the case of a lesbian woman from Uganda, determining that homosexuality is criminalised with up to 14 years imprisonment, homosexuals are indeed being persecuted and they do not receive state protection against attacks by private persons because of their sexuality.Footnote 31

Inconsistencies between courts go so far as some courts considering the mere criminalisation of same-sex conduct as ‘potential persecution’ and granting refugee status in such cases provided credibility is established (Marlen, legal advisor). Some appealjudges are also more sophisticated in their analysis and understand the reasons behind a possible lack of prosecutions in countries where same-sex acts are criminalised:

the fact that Pakistan is rarely acquainted with criminal cases and homosexual convictions for consensual sexual intercourse is, in essence, due to the fact that homosexuals in Pakistan hide their sexual orientation due to legal requirements and widespread reservations among the population, and, for example, lead double lives in a forced marriage. Homosexuality is tolerated in Pakistan for as long as sexual orientation remains secret or invisible (Court observation, Hesse, 2018).

Similarly, in the UK, criminalisation of same-sex acts in itself is not sufficient to find there is a risk of persecution, if the law is not enforced. This was confirmed as long ago as 2003.Footnote 32 This is reflected in Home Office guidance, for example, the 2017 Country Policy and Information Note on Kenya, which states: ‘Sources suggest that the law on “unnatural offences” is rarely applied and there have only been two recent reported cases of its use, one of which was dismissed and the other still ongoing at the time of publication’ (Home Office2017, para. 2.3.5). This policy is also evident in the case law. For example, in a case regarding Sri Lanka, the Court found that ‘the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm’, despite the criminalisation of same-sex acts.Footnote 33 In such cases, the claim is often refused on the grounds that the individual could safely relocate to a different part of the country of origin (Sect. 7.3.3).

As argued by UK lawyers, not accepting criminalisation of same-sex acts as persecution in itself fails to recognise that ‘persecution does not begin and end with prosecutions’ and that criminalisation of homosexuality, even without enforcement, is likely to be accompanied by a climate of homophobia and impunity for attacks on SOGI minorities (Briddock 2016, p. 147). For example, the articles in the Sri Lankan Penal Code relating to ‘unnatural offences’ and ‘gross indecency’ are unenforced, yet SOGI minorities are the target of extortion and violence, would not be able to rely on police protection, and ‘one-third of the LBT interviewees [in an IGLHRC study] reported that they attempted suicide’ (IGLHRC 2014, p. 32). The requirement for homophobic and transphobic law to not only exist but also be enforced effectively creates an unjustifiable two-tier system in relation to SOGI claimants, distinguishing those from countries where the law is enforced (for example, Pakistan and Cameroon) from those who come from countries where the law is not always or clearly enforced (for example, Sri Lanka and Kenya). Such distinctions have also been challenged by lawyers in court, with claimants pointing out that it may be true that criminalisation in itself does not establish fear of persecution, but that it goes to establishing fear of persecution (Upper Tier Tribunal observation, London, 2018).

The Italian asylum system stands as an exception amongst the three countries under comparison and most others across Europe, as it considers criminalisation of same-sex acts persecution in itself. In 2007, the Supreme Court ruled that the criminalisation of same-sex acts did not amount to persecution, as such acts were an (avoidable) expression of homosexuality, so such criminal law rules did not target an identity as such.Footnote 34 Yet, following criticism by scholars (Gasparini et al. 2011; Winkler 2011) and resistance in the lower courts,Footnote 35 in 2012 the Supreme Court affirmed that the simple circumstance of maintaining criminal sanctions of this kind hampers the individual ‘fundamental right to live freely their sexual and emotional life’.Footnote 36 This makes it unnecessary to verify whether these sanctions are applied or not. It is recognised that such criminal norms constitute a serious interference with one’s private life, and therefore place people in ‘an objective situation of persecution’. This decision has been followed by Italian judicial and administrative decision-makers ever since, thus making Italy stand out in the field of SOGI asylum. Italian decision-makers, therefore, generally see criminalisation of same-sex acts as ‘obvious indication’ of persecution (Maurizio, judge). One decision-maker described this approach as follows:

This is based on information on the countries of origin and, when the information on the countries of origin says that in that country the legislation is of a certain type, or public opinion is oriented towards a certain direction, protection is granted automatically (Daniele, decision-maker).

Decisions on SOGI claims in Italy also tend to grant international protection to claimants coming from countries where there may not be criminalisation of same-sex acts but there is social oppression against SOGI minorities, such as Russia (Cristina, UNHCR officer; Livio, lawyer).

We now consider the concept of ‘discretion’ where, as with criminalisation, there is little consistency in the countries under comparison.

3.2 The ‘Discretion Argument’

The so-called ‘discretion argument’ or ‘discretion requirement’ – the idea that a SOGI claimant may be sent back to the country of origin and be ‘discreet’ about or ‘conceal’ their SOGI to avoid persecution (Dustin 2018) – has been central to the history of SOGI asylum in several countries. Although the concept was rejected by the CJEU’s decision in X, Y and Z and has been slowly set aside across Europe and beyond (Dustin and Ferreira 2017), more subtle forms of this ‘discretion argument’ (or, more accurately, concealment) persist and are not necessarily held to be incompatible with the CJEU’s ruling (ECRE 2017).

In the UK context, findings of credible risk of persecution have for long been tainted by this argument. In the period between 1999 and 2010, having been recognised as members of a PSG, SOGI asylum claimants were likely to be refused not only on grounds of credibility, but also (or in the first instance) because they could return to their country of origin and live ‘discreetly’. This was known as the ‘reasonably tolerable’ requirement, according to which the question to be asked was whether the individual ‘had adapted and would again adapt his behaviour so as to avoid persecution in circumstances wherein it amounted to his preferred way of dealing with the problem and a way which was reasonably tolerable to him’.Footnote 37 This thinking led to absurdities such as the 2005 case of an Algerian man, where the Secretary of State argued that ‘because in Algeria there are no gay rights, there are no opportunities for displaying homosexuality with those who are of a similar mind, and it will be impossible for him not to be discreet’.Footnote 38 Painfully circular thinking such as this was also found acceptable amongst UK judiciary:

It is the respondent’s [Home Office] position that self-restraint due to fear will be persecution only if it is such that a homosexual person cannot reasonably be expected to tolerate such self-restraint. Where a person does in fact live discreetly to avoid coming to the attention of the authorities he is reasonably tolerating the position.Footnote 39

In 2010, a pivotal moment took place: a Supreme Court ruling rejected the ‘reasonable tolerable’ thinking and blatant forms of the ‘discretion requirement’ were held unlawful.Footnote 40 In the case of HJ (Iran), sexual identity was accepted as being ‘a fundamental characteristic and an integral part of human freedom’, and for the first time it was recognised that ‘to require an applicant to engage in self-denial was to require him to live in a state of self-induced oppression’.Footnote 41 The Court, however, also found that if claimants ‘chose’ to conceal their sexuality for other reasons (social mores, etc.), they would not be eligible for asylum. Discretion thinking was thus reformulated in a new, cumbersome test.Footnote 42 This tortuous test has been widely criticised as unreasonable, discriminatory and unworkable by both scholars and the UK Equality and Human Rights Commission, and runs against UNHCR guidance (Dustin 2018; Held 2016; Khan 2016, p. 133; UNHCR2002a, b, p. 32).Footnote 43 As the Equality and Human Rights Commission, intervening in the case, pointed out:

Such cases [where someone can safely be returned to live “discreetly”] will be extremely rarely (if ever) encountered in the asylum system since where a claim is made on grounds of sexual orientation that will in itself require a person to “out” him or herself, at least to a limited extent and in any event a person who voluntarily wants to conceal their same-sex sexual orientation in circumstances where there was no real likelihood of it being otherwise exposed is self-evidently unlikely to claim asylum on grounds of sexual orientation.Footnote 44

In asking decision-makers to assess the reason why an individual would behave ‘discreetly’, the test creates an additional hurdle for sexual orientation asylum claimants and discriminates against them relative to other people claiming asylum, none of whom are required to provide a motive for the behaviour that results in persecution (Khan 2016, p. 133). Nonetheless, such ‘discretion reasoning’ has been replicated in most Home Office country guidance (Chap. 6, Sect. 6.5) and enshrined in the Asylum Policy Instruction on ‘Sexual orientation in asylum claims’ updated in 2016 (Home Office2010, 2016).

Several UK lawyers and advocates remained convinced that HJ (Iran) needed to be challenged, on the basis that it has been misinterpreted, applied too broadly (UKLGIG 2018), and had been intended to be used only in exceptional circumstances (Allan, lawyer). Indeed, as explored in Chap. 5, SOGI claimants often escape their home countries after having gone to great lengths to hide their sexuality but having been unsuccessful in those efforts, thus rendering ‘discretion’ a mostly theoretical debate. As Beth, a lawyer, summarises:

HJ urgently needs to be revisited… if a person is LGBT in a country which persecutes those who are, then there should be no further need to explore the way in which that person would live or express themselves. There are so many fundamental flaws in the approach inquiring into how the individual will live not least that we as humans are constantly changing in our nature and behaviour. (…) the person may come to others’ attention for a whole host of other reasons, even if living discreetly and privately. There is also an inherent unfairness in denying an individual protection on the basis they live privately. (…) This effectively creates a qualified protection – depending on how you live, protection is conditional – that fundamentally undermines the purpose of the Convention.

A setback for those arguing against any use of the concept of ‘discretion’ was the disappointing Court of Appeal in England and Wales judgment in LC (Albania),Footnote 45 where the claimant argued that, to be consistent with EU law, only the first two questions from the 2010 test should apply: ‘1) Is the applicant gay or likely to be perceived as gay’, and ‘2) If so, are openly gay individuals persecuted in the individual’s country of origin?’ This was rejected and Justice Hinkinbottom stated that the legal analysis in the 2010 case was fully in line with EU law, and that the Supreme Court distinction between concealment for fear of persecution and concealment for other reasons is ‘principled and clearly right’. The judge emphasised the clear distinction between concealment ‘in response to social pressures or for cultural or religious reasons of his own choosing’, stating that the distinction must be right because such social pressures exist everywhere, including the UK. The implication was that it is important to clearly distinguish persecution in ‘refugee-producing countries’ from discrimination in ‘refugee-receiving countries’, such as the UK.

It is also widely believed that, in an attempt to continue curbing recognition of SOGI claims, UK asylum adjudicators have simply shifted their focus from ‘discretion’ or internal relocation to credibility, tending to deny claimants’ SOGI self-identification (Ashley, psychotherapist; Amelia, NGO worker; Joseph, NGO volunteer). Indeed, the risk is that the post-2010 version of ‘discretion reasoning’ translates into a preoccupation on the part of caseworkers with how open individuals are about their sexuality and whether they are ‘out’:

The judges seem to be clear that there is a distinction between has somebody been living openly here, if they have been living openly here, then that is their life now and they could not go back and live the life that they have as an open, out, particularly when someone is a couple, person. So if somebody can show that they have been out, they have been part of the LGBT community going to Prides or they have a partner or their friends know, then often that carries a lot of weight in terms of the judge saying, “well you couldn’t go back, you shouldn’t be expected to have to go back into secrecy” (Debbie, NGO volunteer).

Our participants had experienced that first hand:

they also want to know, if you are granted refugee status in the UK, that you are going to be an out gay man, you are not going to go back in the closet. So you need to provide them with, let’s say, pictures and stuff that you have been out in London since you came. Which also doesn’t make sense, because if you are not working and you don’t have a place to sleep, the last thing you are going to think about is going out clubbing. And that was also something I found really strange (Selim).

Individuals who are not ‘out’ in the UK, perhaps because they want to retain the support of members of the diaspora community, may be refused on the basis that they are ‘discreet’ in the UK and would therefore be ‘discreet’ if returned to their country of origin (Khan 2016, p. 134). This is in clear tension with the human rights, feminist and queer theoretical and analytical underpinnings adopted in our analysis, to the extent that this scrutiny of how ‘open’ a claimant is about their sexuality relies on stereotyped, oppressive and culturally biased visions of how a ‘genuine’ member of a SOGI minority should act when living in the West.

During our fieldwork, we encountered evidence of the Home Office using the ‘discretion requirement’, stating, for example, that ‘one can be anonymous in Nairobi’ (Upper Tier Tribunal observation, London, 2018). Even claimants who are clearly ‘out’ have been expected by some judges to change their conduct and behave more ‘discreetly’, so that they can safely be deported, for example, by suggesting that it would be possible for a lesbian claimant to act in a ‘less mannish’ way (quote from First Tier tribunal decision, London 2018; this was part of the basis for the decision being overturned on appeal to the Upper Tier Tribunal, observation, London 2018). Indeed, a number of the judicialobservations we carried out in the UK were dominated by discussions about whether or not the claimant would live ‘discreetly’ upon return and, if so, for what reason. A variation on ‘discretion reasoning’ is also reflected in the way decision-makers sometimes question the risks claimants have taken in their countries of origin before fleeing (Nath, lawyer). Perniciously, claimants are thrown into ‘no-win’ situations: ‘Then there is a whole catch 22 of, if they are saying you should have been “discreet”, but if you had been, then you could carry on being so you could go back and carry on being [“discreet”]’ (Nath, lawyer). Decisions – including at a judicial level – even go beyond the test set out in HJ (Iran) and blatantly return to full-blown ‘discretion reasoning’: ‘Yes, they are saying “oh, no, you could live a secret life, you could suppress who you are, and go back to living how you were before”’ (Christina). Lesbian and bisexual claimants seem to be particularly affected by ‘discretion reasoning’ under HJ (Iran): ‘Lesbians and bisexual women are more likely to be told that they will be “discreet” for reasons supposedly not related to a [form] of persecution, such as a desire for family approval’ (S4, lawyer). Jules, staff member at ILGA-Europe, shared this concern:

if you have a person who identifies as bisexual, then you will have responses along the lines of “oh well, but if you like both the opposite sex and the same sex, you can go back home and just be with someone of the opposite sex, that simple.”

To worsen this state-of-affairs, it has become apparent that this UK judgment has influenced other European decision-makers, both at domestic and international level (Amanda, NGO worker, Brussels; ECRE 2017). This seems to be the case, for example, in the Netherlands (Jansen 2019, p. 151) and with the European Court of Human Rights, as in M.E. v Sweden.Footnote 46 This may be interpreted as the decision in HJ (Iran) having a negative influence across Europe, and emboldening decision-makers in their desire to retain at least some forms of the ‘discretion requirement’.

That might well be the case in Germany. Even before the judgment in HJ (Iran), German decision-makers made use of the ‘discretion requirement’. For instance, the Administrative Court of Düsseldorf, in a case relating to a gay man from Morocco, dismissed the appeal and suggested that ‘discretion’, combined with relocation, would protect the claimant from persecution.Footnote 47 The Administrative Court of Trier also dismissed the claim of a gay man from Algeria, arguing that the criminalisation of homosexual acts in Algeria was not the basis for refugee protection, because it was not about ‘predisposition’, but about certain sexual practices being punishable if they became public.Footnote 48 The Court argued that it was reasonable to expect the claimant to be ‘discreet’ about his ‘disposition’ in a large city in Algeria.Footnote 49 Although there has been some judicial dissidence, with several courts disagreeing with ‘discretion reasoning’ and arguing that it is unacceptable to ask a claimant to keep their sexuality secret,Footnote 50 that has not been the approach taken by the majority.

In 2010 the government formulated the ‘discretion requirement’ more carefully, arguing that the decision depends on the claimants’ expected future behaviour, but not on the reasonableness of alternative behaviour (Hempel 2014, pp. 56–75). Following higher courts’ case law, and perhaps feeling supported by the judgment in HJ (Iran), the BAMF laid out that the decision on the potential risk of persecution of sexual minorities depended on the individual’s ‘sexual disposition’, in other words, whether this ‘disposition’ was so strong that it would be likely that the authorities would find out about such a ‘disposition’. The cornerstone element here was thus the prognosis of future conduct. If the claimant had already suffered persecution, constitutional asylum or refugee status should be granted; if the claimant had not yet been persecuted, the decision on whether to grant them refugee status should depend on what sexual behaviour was to be expected from them if returned (Kalkmann 2010, p. 7). In December 2012, in anticipation of the CJEU judgment in X, Y and Z, the BAMF finally confirmed that it had changed its decision-making and had abolished ‘discretion reasoning’ (BAMF2012; Hempel 2014, pp. 56–75).

Nonetheless, in 2017, the BAMF again recognised that although SOGI claimants cannot be expected to avoid risky behaviour in order to evade persecution, if a claimant would be likely to choose to live their sexuality ‘discreetly’ on a voluntary basis, then ‘it can be assumed that he or she will accept this lifestyle for themselves. Under these conditions, refugee protection can exceptionally not be established’ (BAMF2017, p. 292). The BAMF instructions also clarify that if claimants voluntarily and without impairment to their personal identity lead a life that makes it unlikely that their SOGI would become publicly known, even after their return, then a decision that the persecution threshold has not been met is reasonable. Appealjudges also ask questions about whether the claimant is visibly ‘out’ in Germany as the indicator of whether they would behave in the same way in their country of origin and could therefore safely be returned (Court observation, Hesse, 2018, 2019). All this is akin to ‘discretion reasoning’, in the same vein as HJ (Iran).

Our participants confirmed that they still see ‘discretion reasoning’ in asylum decisions (Barbara, lawyer, Germany; Marlen, legal advisor, Germany; Sofia and Emma, NGO workers), which was also confirmed by claimants themselves (Zouhair). This is seen as sending claimants ‘back to the closet’: ‘In practical terms it means “The claimant has not lived openly as gay, so there is nothing against him continuing to live like that”’ (Thomas, NGO volunteer). This is clearly used in BAMF decisions, particularly affecting claimants who had not ‘come out’ in their home countries (decision regarding participant DE34 in Held et al. 2018) and who were also not ‘out’ in Germany or did not have an active sexual life. Yet research shows that, for SOGI claimants, ‘coming out’ processes in host countries may take many years (Shidlo and Ahola 2013, pp. 9–10). As one of our participants pointed out, this is both a reductive and racist treatment of SOGI claimants:

And there is still a bit the expectation of “discretion”, so if it was like that until the 20th, 25th year of age, then it has to go on. That’s an argument that is in several letters of refusal [of asylum]: “If the person somehow managed to carry on with their lives like that, then it is not so difficult.” (…) Be quiet and it will be fine. This suggests that homosexuality implies something you just do not have to live with, in the worst case scenario, or it is enough to live it out in silence. That means that [SOGI claimants] will not have the same claim to human dignity and human rights and freedom that you have in Germany, and if you question that, if you are shocked by it, then you do not have [those rights]. That’s a very racist outlook, because then if you’re Arab, Persian, Afghan or whatever, or Colombian, then you cannot have the same claim [to those rights] (Kadir, NGO worker).

In Italy, in contrast, there is no evidence of ‘discretion reasoning’ being used in SOGI asylum adjudication. Italian decision-makers do not attach any importance to the question (Roberto, decision-maker; Daniele, decision-maker; Cristina, UNHCR officer). According to all available data, including the extensive body of case law on SOGI asylum, no SOGI asylum claims in Italy have been refused on the grounds of ‘discretion’. This might be an indirect consequence of the stronger influence of the UNHCR in asylum adjudication in Italy, along with extensive use of the UNHCR 2012 SOGI guidelines (UNHCR2012; Chaps. 4 and 6) and a human rights approach to asylum (Chap. 3).

Indeed, all forms of ‘discretion reasoning’ are rejected by the UNHCR in its SOGI guidelines:

The question is not, could the applicant, by being discreet, live in that country without attracting adverse consequences. It is important to note that even if applicants may so far have managed to avoid harm through concealment, their circumstances may change over time and secrecy may not be an option for the entirety of their lifetime. The risk of discovery may also not necessarily be confined to their own conduct. There is almost always the possibility of discovery against the person’s will, for example, by accident, rumours or growing suspicion (UNHCR2012, para. 32).

We are far from seeing this guidance observed by asylum authorities across Europe. In fact, ‘discretion reasoning’ affects not only sexual orientation, but also gender identity-based asylum claims:

we have heard of cases where trans people who are physically “passing” are told “well, you can go back now because you pass and so even if it is not safe for trans people, you don’t look like a trans person, and so you can go back.” (…) these issues disregard the fact that, ok, maybe you are passing, but that still exposes you to a higher number of risks, you could be blackmailed, you could be exposed, what is considered safe for LGBTI people is not always really safe (Jules, staff member at ILGA-Europe).

Inappropriate consideration of the ‘internal relocation alternative’ makes the overall picture worse.

3.3 The ‘Internal Relocation Alternative’

The ‘internal relocation alternative’ refers to the possibility of asylum claimants being returned to their country of origin and moving to a different part of it where they may be able to avoid the risk of persecution. This is allowed under Article 8 of the Qualification Directive, and generally included in domestic legislation. Nonetheless, it is generally not recommended by the UNHCR in SOGI cases (UNHCR2012, para. 51 ff). This guidance, as we will see, is largely disregarded, and once again, the differences across the asylum systems in the countries under comparison are striking.

German asylum instructions refer to ‘internal relocation’ of SOGI claimants in the context of claimants who have not suffered persecution previously, and establish that it is only reasonable to expect these claimants to relocate if, should their sexual orientation or gender identity be discovered, they would not need to relocate again (BAMF2017, sec. 7.5.1). Nonetheless, when information on persecution is lacking, there is an assumption of a certain tolerance towards SOGI minorities in certain parts of the country of origin, and that internal relocation is therefore possible (Thomas, NGO volunteer; Sofia and Emma, NGO workers; Barbara, lawyer; decision regarding participant DE34 in Held et al. 2018). Yet, even if a country is large and still retains some degree of rule of law, internal relocation may not be an option. Russia is a good illustration of this:

We lived in the city, in St Petersburg, it does not work, there are problems, then we move to a village, try to live there, and many times we try to move, yes, and again same problems, and lawyer says “the reason for judge can maybe also be that Russia is a huge country and it is possible to find a safe place, somewhere, maybe in the woods” (laughs), I do not know (Veronica).

Decision-makers, however, still proceed on the basis that internal relocation is viable in Russia (decisions regarding participants D16 and D33 in Held et al. 2018), where anti-gay propaganda laws have promoted a highly homophobic environment across the country (Ramón Mendos 2019). Smaller countries may also be mistakenly believed to be safe in some parts:

In the decision they say I should move to northern Jamaica. Now, if you go on Google, northern Jamaica is the murder capital of Jamaica. Most murders per year, for straight people. So how would it be for a gay person, a lesbian person? If straight people aren’t safe there, how am I gonna be safe there? (Angel).

Besides Jamaica and Russia, we saw internal relocation used by German decision-makers in relation to countries including Turkey, Pakistan and Uganda, with insufficient consideration of the social, economic, cultural, linguistic and personal reasons that may preclude internal relocation from being a realistic solution (Louis, NGOvolunteer; Elias, lawyer; Barbara, lawyer; Oscar, judge; focus group no. 1, Hesse; focus group no. 2, Bavaria). Internal relocation has thus become known as the latest ‘trick’ to deny international protection (Gisela, lawyer).

Participants also pointed out that there is an inconsistent overlap between the areas judged to be safe for internal relocation for asylum claimants, and the areas that countries’ own nationals are advised not to visit by their own governments, for example, in Jamaica (focus group no. 1, Hesse).

The lack of consistency between different courts in this respect is noticeable (Oscar, judge). For example, in the case of a gay man from Jamaica, the Administrative Court of Giessen decided that although there was no risk of state persecution, there was a risk of persecution by private actors and therefore there was no internal relocation alternative to tourist areas in the north of the country, as the BAMF had argued.Footnote 51 Nonetheless, in the same year, the Administrative Court of Kassel suggested that another gay claimant could internally relocate (to tourist areas in the north) to avoid persecution.Footnote 52

As in Germany, in the UK, internal relocation is a common ground for refusing SOGI claims,Footnote 53 often in connection with the idea that claimants would choose to live ‘discreetly’. Home Office guidance identifies countries where relocation is an option for SOGI minorities (Home Office2016, p. 36). Albania, for example, is on the ‘safe countries’ list (Chap. 6, Sect. 6.7) and Home Office guidance states that ‘[w]here a person has a well-founded fear of persecution from a non-state actor – including ‘rogue’ state agents – internal relocation is likely to be an option to escape such risk’, also referring to the existence of human rights group that ‘operate without government restriction’ and active ‘LGBTI specific NGOs’ (Home Office2019). Yet, as the International Commission of Jurists points out, ‘[t]his approach is legally unsustainable. The responsibility to provide effective protection and ensure access to rights without discrimination rests on the relevant State and not on NGOs or ad hoc group of individuals who may themselves be under threat’ (ICJ 2016, pp. 245–246).

Our participants also experienced or had been told of claimants being denied international protection on grounds of – according to decision-makers – being able to relocate internally within their country of origin, such as Cameroon and Zimbabwe (Irma; Sean, lawyer). On a more positive note, and indicating some recognition of the intersections of gender and sexuality (Chap. 3), the Home Office guidance acknowledges that relocation is also likely to be more difficult for lesbians and women in general (Home Office2016, p. 36).

Once again Italian asylum adjudicators stand out among European states in not considering internal relocation as an alternative form of protection in the country of origin as the basis for denying recognition of refugee status.Footnote 54 This is the direct result of the Italian legislature’s earlier choice not to transpose Article 8 of the Qualification Directive. Consequently, Italian authorities have not denied international protection on the basis that in some parts of the country of origin, such as larger cities, SOGI asylum claimants may live safely (Titti, decision-maker).

Although the 2018 reform introduced the potential for using internal relocation as an alternative to protection in Italy,Footnote 55 there are as yet no public records of this happening, including in SOGI cases. However, even before this reform, some decision-makers were considering the existence of supposedly safer areas in the country of origin as a relevant factor for the purposes of deciding what kind of protection to grant – refugee status, subsidiary protection or humanitarian protection (Maurizio, judge) – a legally dubious approach made worse by the low quality of COI (Chap. 6, Sect. 6.5).

Differences between the countries under comparison are again patent, highlighting the scope for variation despite EUharmonisation efforts. This is also evident in relation to evidentiary matters.

4 Proving Claims Based on SOGI

Both membership of a PSG and well-founded fear of persecution need to be considered as ‘proven’ by asylum decision-makers. ‘To what extent’ (Sect. 7.4.1), ‘by whom’ (Sect. 7.4.1) and ‘through what means’ (Sect. 7.4.2) are key questions here. Adjudicators also need to be convinced of the overall ‘credibility’ of the claim (Sect. 7.5). Although these questions are connected, in this section we separate them for analytical reasons and explore them in the context of SOGI asylum.

4.1 Standard and Burden of Proof

The first question we consider is ‘to what extent’ SOGI asylum claims need to be proven. In other words: What is the standard of proof? The UNHCR offers some guidance in this respect, stating, in relation to persecution, that:

In general, the applicant’s fear should be considered well-founded if he can establish, to reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there (UNHCR2011, para. 42).

The standard of proof is therefore ‘reasonable degree’, also applied in the European context (EASO2018). This is acknowledged in all three countries under comparison. In Italy, for example, we were told that the ‘UNHCR manual [Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status] speaks of a reasonable level of probability, even just a 5% chance of a person being killed [means that they] must be protected’ (Roberto, decision-maker). In the UK, there is also – theoretically – a low standard of proof for SOGI asylum claims, as for other asylum claimants:

The level of proof needed to establish the material facts is a relatively low one – a reasonable degree of likelihood – and must be borne in mind throughout the process. It is low because of what is potentially at stake – the individual’s life or liberty – and because asylum seekers are unlikely to be able to compile and carry dossiers of evidence out of the country of persecution. “Reasonable degree of likelihood” is a long way below the criminal standard of “beyond reasonable doubt”, and it is less than the civil standard of “the balance of probabilities” (i.e. “more likely than not”). Other terms may be used: “a reasonable likelihood” or, “a real possibility”, or “real risk”; they all mean the same (Home Office2015, p. 11).

In practice, decision-makers often apply a higher standard of proof, whether consciously or unconsciously:

All those things combined mean that the Home Office and judges are forgetting the reasonable likelihood. Everything has to be proven to the Nth degree. It is not just a question of considering things. There are lots of plausibility issues. “This wouldn’t have happened and you wouldn’t have done this.” The law on asylum more generally is pretty clear that you shouldn’t really be using plausibility from your own perspective, whoever the decision-maker is. Just because something might seem implausible to you or I doesn’t mean it didn’t happen. I think SOGI claims are not unique with that, but they are more susceptible to that (Allan, lawyer, UK).

Even Home Office presenting officers recognise this issue: ‘Judges often use – I don’t know if this is because they are on autopilot – they refer to balance of probabilities, when obviously they mean low risk’ (Bilal).

We also found an acute neglect of the principle of the benefit of the doubt, a central tenet of IRL. On this principle, the UNHCR Handbook states that:

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. (…) it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt (UNHCR2011).

Instead of systematically applying the principle of the benefit of the doubt, decision-makers seem to be vulnerable to ‘case-hardening’ and vicarious trauma, a concern identified in relation to SOGI claims (Gray and McDowall 2013, p. 25), and also to women claiming asylum on the basis of sexual violence (Baillot et al. 2012). The intersection of a number of factors may contribute to this, including: a culture of disbelief (Sect. 7.5); a ‘hostile climate’ to all migrants (Chap. 4); the pressure that all public bodies are under to deliver more with less resources; and the self-protection and defensive coping mechanisms that caseworkers and judges develop to enable them to do their work. All these factors may make it harder, on an individual level, for decision-makers to connect with claimants emotionally and really hear their accounts of persecution on a daily basis.

Although some decision-makers made an explicit reference to the principle of the benefit of the doubt (Titti, decision-maker, Italy), at lower levels of the decision-making process we found that this principle is often disregarded, confirming a historical trend (Millbank 2009b, p. 6). As we explore in detail in Sect. 7.5, caseworkers are too often still applying the inquisitorial approach of a criminal court, where truthfulness is equated with consistency in the detail of the defendant’s narrative. In asylum claims, decision-makers tend to ignore factors such as the effect that trauma and the passage of time can have on memory of painful events (Cohen 2002; Herlihy and Turner 2007, 2009; Millbank 2009b, p. 12; Shidlo and Ahola 2013). In addition, cultural differences may make it harder to provide the details required for a coherent account according to European standards, such as dates of birthdays, anniversaries and first meetings, details which may have less significance from one country and culture to another.

Yet, at the level of policy, the principle of giving claimants the benefit of the doubt was defended:

I think we should [use more the principle of the benefit of the doubt] (…) unless you have got very, very strong sort of evidence in terms of numbers or whatever that says to you “look, this is, this is something which now is being used as sort of, I don’t know, evidence of abuse [of the system]” (…) if somebody has actually been willing to leave their country of origin, particularly if they have, they are somebody who has actually made one of the long and more tortuous journeys and has been willing to put themselves through that (…) there is no really strong reason to disbelieve it, you know, you are not being told something which just seems so incredible, or which doesn’t add up (…) then I think that that balance of credibility side of it should be coming in (Jean, member of the European Parliament).

Some decision-makers also endorsed a more systematic use of the principle of the benefit of the doubt:

when the claimant’s personal story is considered coherent, plausible and sufficiently detailed with reference to what he declares about his [sexual] orientation and also about the country from which he came, then normally credibility is accepted and if there is a doubt, the benefit of the doubt is conceded. So, let’s say, in doubt or in difficulty of establishing credibility, there is a tendency to favour the claimant. (…) protection must be recognised, even with the risk of making mistakes, granting the benefit of the doubt (Daniele, decision-maker, Italy).

The benefit of the doubt principle should be applied where there are minor ‘inconsistencies’ in claimants’ testimonies (Silvana, judge, Italy), when assessing whether the required standard of proof has been reached. The claimant’s testimony should be accepted as the ‘default truth’ – or believed in principle – unless there is evidence to the contrary.

A second question one needs to address in relation to ‘proving’ SOGI asylum claims is who should provide proof; in other words, who has the burden of producing the evidence needed to make the claimant’s case. In this regard, the UNHCR Guidelines establish that:

while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application (UNHCR2011, para. 196).

However, because of the tendency on the part of some decision-makers to view SOGI claims with suspicion, they may (wrongly) transfer the full burden of proof to the claimant (Helena, EASO staff member).

In Germany, asylum claimants have a legal duty to cooperate in the asylum procedure. This includes giving a ‘coherent’ and ‘complete’ account of the ‘events falling into his own sphere, in particular his personal experiences’.Footnote 56 Similarly, in the UK, it is the duty of the claimant to submit all material factors and the account should be ‘internally consistent and coherent’ (Home Office2015). Italian asylum authorities, however, adopt a more balanced approach, with the Supreme Court recognising that the burden of proof must be shared between the claimant and relevant authorities.Footnote 57 Decision-makers are, therefore, called upon to collect all relevant proof aimed to ascertain claimants’ testimonies (including their SOGI) and to verify the legislation on SOGI minorities in force in their home countries.Footnote 58 As affirmed by the Supreme Court, judges may not dismiss an asylum request solely for reasons of credibility, particularly so where decision-makers did not share the burden of proof with the claimant and play an active role in acquiring the necessary information to confirm the account of the claimant.Footnote 59 This does not mean that decision-makers need to support claimants’ efforts to prove their SOGI. The Supreme Court stated in a subsequent case that the judge should collaborate in collecting information when the situation of SOGI minorities in the country of origin is not fully clear, but that the judge cannot be asked to take a proactive role in verifying the claimant’s SOGI (where verification is seen to be required).Footnote 60 This approach should result in better treatment for SOGI claimants in Italy than in the other countries under comparison, but decision-makers have been critical of actual practice in Italy:

there is a reversal of the burden of proof… as if we started from the assumption that it [the testimony] is not true, of no credibility and we ask the asylum claimant to prove their homosexuality. The approach is then permeated, in my opinion, by a fairly veiled homophobic attitude (Maria Grazia, decision-maker).

However, there have been suggestions for using the reversal of the burden of proof in asylum law in a more benign way, as is the case in discrimination law (Network of Legal Experts in the Non-Discrimination Field 2015). One of our participants argued that we should reverse the burden of proof and demonstrating lack of credibility should be the responsibility of the authorities (Philippe, European Commission staff member). This would be a bold, but certainly interesting avenue of reform, which might re-balance the power dynamics in the asylum process.

4.2 Types of Evidence

Having established what standard of proof and burden of proof are in question in relation to SOGI asylum claims, we need to now consider what types of evidence can be used in this context. As the individual’s SOGI is central to these asylum claims, it is to be expected that evidence regarding that aspect of the claim is a crucial part of the process. How one proves one’s SOGI has been a conundrum ever since international protection regimes started to recognise SOGI minorities, one that may never be satisfactorily resolved. Allan described how, in SOGI claims, ‘proof’ is not always available. If people are marginalised, if they are not sociable, then ‘[t]hey don’t really have any evidence to show that they are LGBT. I think SOGI claims are more likely to suffer from that problem than other claims’ (Allan, lawyer, UK).

Let us start by considering what role SOGI self-identification plays in this process. In light of the diversity across asylum claimants in terms of cultural background, national origin, ethnic group, SOGI, etc., it would arguably be more sensible and compatible with the theoretical and analytical frameworks delineated in Chap. 3 to rely, as default, on claimants’ SOGI self-identification:

in the asylum procedure, I believe, people look for templates, to create these templates and then recognise [international protection]. (…) we somehow have people not only from the countries well known through the media, but people also come from Benin and Nicaragua, from Russia, from Georgia. And if I know that cultural expressions can be so different, even identities can be so different, then I do not try to grant [international protection] to people on the basis of a few templates, but simply according to how they describe and place themselves (Mariya, NGO worker, Germany).

Some of our participants also argued for self-identification to work as the ‘principle’ on the basis that no-one’s ‘gaydar’ is infallible (Frank S., legal advisor, Germany). A German judge put this idea across in quite simple, but cogent terms:

I cannot tell [if someone is really gay or lesbian]. If they tell me that, then that’s it. What, how should I ask now? You cannot query love! Yes! [laughs] That’s it. If someone asks me whether I love my wife, I’d say “Yes.” Whether that’s true, no one knows exactly (Oscar, judge).

Yet, relying on self-identification was not seen as sufficient by all our participants:

it presumes that the environment would be conducive to someone who would feel comfortable in self-identifying potentially. I guess by self-identifying it means proactively giving the information. (…) I think that would be welcome in the case where the person was totally cognisant of his or her sexual orientation and they felt no external pressure in which to divulge this information to an unknown person. (…) I just think that there is a stage beforehand in which the environment has to be… the individual has to be totally in the know about their rights and about… which then also relies on the legal assistance, and legal information (…) I think self-identification works if the conditions are right, but [not] for people who might, may be extraordinarily hesitant to provide the information willingly (Amanda, NGO worker, Brussels).

A more balanced approach, some participants argued, is required:

I know there are schools of thought that say it [credibility assessment] should rely purely on self-identification, and that if a person says I am… gay, I am lesbian, I am trans, that it should be accepted as such. I can absolutely see the logic and the reasonings behind that, but I can also see where the opposition would come, in that this becomes open to abuse, because if people start saying that people are coming from a certain country, who identify themselves as being LGBTI, automatically get asylum, you open up essentially the door to anyone being able to claim this. And in the long run then that becomes harmful for people who genuinely need support, because you will at some point get backlash and you will at some point essentially create mistrust that basically anyone coming and claiming “this [claimant] is not telling the truth and is just an opportunist” (Jules, staff member at ILGA-Europe).

Whether or not self-identification should be the default starting point for SOGI asylum claims, in reality this is clearly not the approach generally adopted by asylum authorities. While it is recognised that self-perception and self-identification should be at the centre of analysis (Helena, EASO staff member), officials also argue that there has to be some kind of independent standard of proof, requiring additional questions; it is not enough for a claimant to say that they are gay and from a country where there is criminalisation of same-sex acts (Philippe, European Commission staff member).

In Germany, when decision-makers assess the overall credibility of a claim (Sect. 7.5), they also consider claimants’ self-identification but have, in the past, also scrutinised the claimant on whether their sexuality is ‘reversible’, as in this case decided by the Administrative Court of Trier: ‘In the present case, on the basis of the impression made at the hearing, the Chamber of Appeal came to the conclusion that the applicant’s submission that he had been irreversibly homosexual since puberty was credible’.Footnote 61 In Italy, self-identification plays some role in the decision-making but, as already explored, decision-makers are called upon to play an active role in obtaining the necessary information to confirm the claimant’s account.Footnote 62 Finally, in the UK, caseworkers and interviewers are instructed to ensure they establish all material facts and the interview should sensitively explore the claimant’s self-identified SOGI (Home Office2016, p. 26). The Gender Identity guidance also states that self-identification should be the starting point in the process, and that individuals may not have felt able to disclose their gender identity at the screening interview (Home Office2011). SOGI self-identification remains, however, subject to scrutiny in all three countries under comparison, and self-identification is only the ‘starting point’, as defended by the CJEU in A, B and C.Footnote 63

Consequently, asylum authorities generally expect evidence to substantiate not only the claimed SOGI, but also other aspects of the claim. The nature of the evidence submitted by SOGI asylum claimants has been much debated. The CJEU took the opportunity to introduce some clarity by precluding evidence that would undermine the dignity and privacy of asylum claimants (Ferreira and Venturi 2017, 2018). These include sexualised evidence or stereotyped assessments (including medical tests such as phallometric testing and explanation of sexual practices),Footnote 64 as well as projective personality tests.Footnote 65 However, the Court has not provided positive authoritative guidance on what types of evidenceare appropriate, and accordingly, there is considerable variation between each country in this respect.

Detailed oral submissions provided by SOGI claimants in their substantive asylum interview remain the main form of evidence used as the basis of decision-making in Germany, Italy and the UK. In Germany, advisors generally warn against personal written statements, to avoid the risk that the BAMF find the claimant’s story has been carefully fabricated ahead of the interview (Marlen, legal advisor). In Italy, the focus is generally placed on the coherence and the consistency of the personal story as reported by claimants. Detailed testimonies are also the standard expectation in the UK:

They are asked things like “how did you first know that you were gay?”… and they are expected to give a detailed explanation of what their feelings were, at that time. So you can imagine somebody that is suddenly thrown into an interview, with a language barrier, with trauma, mental health problems, not knowing whether this person is going to be sympathetic and they may not be sympathetic. So there is all these barriers that make it difficult for them to say as much as they need to say, because they are expected to give a lot of detail (Debbie, NGO volunteer).

if they’ve given you more than a few lines, OK, “can you tell me more about that?” and probe to try to get as much detail out of them as possible (…). At the end of the day, if they can provide you with that detail, you can’t say them having or not having a relationship is against them, you wouldn’t, it’s not a tick box (Emily, decision-maker).

Many SOGI claimants strongly resented the need to provide detailed testimonies on intimate matters as evidence of their SOGI, pointing out the discriminatory nature of this expectation: ‘if I was straight I wouldn’t answer this question because it is feelings, it is deep down how you felt, your emotions (…) I don’t think a straight person would actually answer those questions’ (Ali, UK).

Other written evidence, such as relevant certificates and documents in possession of the claimant, should also be submitted. This is the case in Germany (Nina, legal advisor), but some claimants felt that the BAMF had unreasonable expectations in relation to evidence of persecution and discrimination in the country of origin:

[One suffers attacks] And you ask me for that evidence here? Really? It is not fair. There is no way somebody could get such evidence. No way. So it is one thing I would emphasise, BAMF should look at that the evidence that it asks for people, normally it is hard to get. Or people were not in the position of getting it. You are running for your life, you’re in big trauma, you’re in fear and now you’re taking selfie or you’re recording voices? (Alphaeus).

In Italy, claimants are also expected to bring before the territorial commissions all the information and documentation at their disposal to support their claims, even if this is not an essential requirement for the recognition of refugee status. In the UK, it was found that there was an unreasonable expectation to produce documents from the country of origin. Lubwa, for example, told us: ‘So if they expect me to produce documents from back home, it is like they literally don’t want me to go ahead with interview anyway’ (focus group no. 1, Manchester). Milton also felt strongly about this matter:

If someone claim[s] asylum, coming from Africa, or any part of the world, why did you expect such person to bring evidence? What kind of evidence am I going to bring when I am in danger? I remember the day I was coming, there is blood, I can show you my leg, blood here. So I cannot get evidence, which evidence they want me to bring, where I am in critical condition? (focus group no. 2, Glasgow).

This issue may be compounded by the costs of translation (Chap. 6, Sect. 6.6), with one participant explaining he did not submit emails in Arabic as evidence ‘because we needed to pay for translation and they [legal representatives] couldn’t afford it’ (Selim).

The testimony of supporting witnesses is accepted in all countries under comparison, and partners can also be interviewed as witnesses. Nonetheless, decision-makers’ attitude to supporting witnesses can be ambivalent. As Umar (legal advisor, UK) explained, judges will view the failure to call witnesses in a negative light, yet ‘the point about that is that you call the witnesses, and the judges ignore the witnesses, because there is no direct evidence of the person being gay because of what the witnesses have said’.

Moreover, the expectations relating to some witnesses, particularly children, can be inappropriate to the point of inhumanity:

I didn’t even make an effort to bring my son to court, because I didn’t know that him coming or not would have an impact on my case. So, in my refusal they said “oh, you didn’t bring your son to court because you didn’t want him to be questioned”. I didn’t know. I didn’t know that if I come with my son to court, I personally as a parent, I was just protecting my son because I was thinking it is a sexuality case, I don’t want this kind of things to be discussed in front of my teenage son. I didn’t want, like, because I have a teenage son who I conceived through rape, I didn’t want such kind of things to be discussed in front of people because how that will affect my son, knowing that people just know that kind of information about him. Kind of protecting him in a way (Jayne, UK).

In line with our analysis in Chap. 6 (Sect. 7.2), evidence related to NGOs also plays an important role in SOGI asylum claims, but the probative value of NGO statements may be challenged. Participants in Germany, for example, reported that NGOs’ supporting statements are generally disregarded, as they are seen as ‘partisan’; this was judged as ‘absurd’ and just like ignoring ‘medical evidence’, especially in light of the dramatic consequences that asylum decisions possess (Sofia, NGO worker). Some NGOs are also conscious that supporting statements may be used against claimants, where they contain contradictions or information that decision-makers can use against claimants (Thomas, NGO volunteer). There is a concern that the more such statements are provided, the less probative value they are accorded (Sofia and Emma, NGO workers; Court observation, Hesse 2018). Decision-makers may also express scepticism about NGO supporting statements because they do not prove anything in relation to country of origin conditions (Oscar, judge).

In Italy, NGO supporting evidence has most often consisted of confirmation of claimants’ membership of LGBTIQ+ associations. Such membership has played an overly prominent role in the recognition of refugee status or some form of international protection, sometimes practically ensuring credibility (Antonella, LGBTIQ+ group volunteer; Titti, decision-maker; Celeste, social worker; Tribunal observation, northern Italy, 2018). For example, in one case involving a gay man from Nigeria, membership of a local gayassociation was deemed essential to confirm his sexual orientation.Footnote 66 The need for such ‘associative evidence’ is such that some associations have been approached by claimants who have been told by judges that they needed to obtain evidence of involvement with LGBTIQ+ associations, regardless of the claimant’s individual interests, past experience or desire to be socially or politically active in this way (Nicola and Giulio, LGBTIQ+ group volunteers). Such practices are in obvious tension with the queer theoretical approach we advocate, as they contribute to prescriptive forms of identity and ‘performance’, effectively limiting claimants’ freedom to express their SOGI as they wish. Some decision-makers are thus critical of the simplistic way in which some territorial commissions treat evidentiary requirements, such as membership cards:

you do not need to reach a full certainty of the claimant’s sexual orientation. I don’t have a gaydar to help me tell you exactly from the statements or from the demeanour [whether the claimant is LGBTIQ+]… there is no decisive proof. This is a very current debate in the Italian [territorial] commissions: “You don’t have an Arcigay [national LGBTIQ+] card”, “You don’t have relationships here”, “You don’t attend groups” or the other way around… Not in this commission, but in many commissions, for sure (Roberto, decision-maker).

We use – in addition – the fact that in Italy [claimants] attend associations for the protection of gay rights, which is not at all essential, it is not a necessary element. However, the same [UNHCR] guidelines say that this is an element to evaluate, the fact that he [the claimant] consciously chose to attend an association. So, the gay association membership card is irrelevant, but it can be significant that the head of the [gay] centre voluntarily produces a statement, makes a statement to us saying that for a year, for six months, he [claimant] attended [the gay centre] (Silvana, judge).

We found some NGOs only offered membership cards to claimants who were clearly involved in the activities of the organisation in question (Maria Grazia, decision-maker). Nevertheless, membership cards should not be seen as indispensable evidence in SOGI claims. As Giulia (LGBTIQ+ group volunteer) pointed out, ‘one is not any less gay’ for not frequenting an LGBTIQ+ organisation. We heard evidence that practice in this respect is changing:

in relation to the membership cards, for example, they [decision-makers] have come to understand that whoever has the card, that only means that a person espouses the ideals of an associative project and not that he is a gay, lesbian, bisexual or trans person. But it took [them] some time to understand this, and this led to something. It led to that reductionism, that analogy “possession of card = possession of identity” among decision-makers (Vincenzo, LGBTIQ+ group volunteer).

In place of simply establishing membership, more elaborate statements from associations, produced on the basis of several meetings with claimants where their testimonies are explored, are now routinely submitted to territorial commissions and courts (Tribunal observation, northern Italy, 2018).Footnote 67 Such lengthier declarations are deemed increasingly important and, when no other evidence is submitted, even crucial (Daniele, decision-maker). Some decision-makers, however, remain sceptical of the probative value of any declaration from such associations:

I value them as a statement from an employer… who can give me some sort of reference. Indeed, I would rate it in slightly lower terms. These [declarations] are indications, but they cannot establish an assessment of the reliability of the homosexual orientation (Maurizio, judge).

In the UK, NGO supporting statements are also often submitted by claimants, but may be dismissed by the Home Office, on the basis that it would be easy to ‘fake’ one’s sexuality for the purposes of obtaining such a statement (Upper Tier Tribunal observation, London, 2018). Judges may also find NGO testimonials unconvincing, confirmed by both our participants and our past research (Held 2017):

I wrote a letter and I said that I had seen them together and that they treated each other with affection, fondness and kindness, like lots of couples that I know. That is the wording I chose to use and that is because I didn’t want to be too explicit, didn’t want to talk too intimately about them. In the refusal even the judge said that my, the letter that I wrote could have been interpreted as just non-romantic friends. So it wasn’t explicit enough, essentially (Chloe, NGO worker).

Evidence of a (physical or mental) medical nature may also be submitted; however, the weight given to such reports, especially when diagnosing PTSD (Chap. 9), has been a matter of debate (AIDA 2017, p. 46). In Germany, reports by psychotherapists or psychologists to assess the claimant’s sexual orientation can positively contribute to the case where credibility is questioned (Zouhair; focus group no. 6, Lower Saxony, Germany). Yet, according to one participant, their probative value has diminished over time (Sabrina, NGO worker), and they can also be problematic if they are used to confirm an ‘irreversible homosexual disposition’, especially after the CJEU’s decision in the F case.Footnote 68

In Italy, territorial commissions operate on the basis of generally not requesting evidence of a medical or psychiatric nature (Daniele, decision-maker). It is, however, possible to request medical exams with the consent of the claimant where it is necessary to prove the persecution previously suffered. Claimants are also free to submit psycho-social reports, often produced by professionals at reception centres, which may discuss: the process of ‘coming out’ for the claimant; trauma associated with their life in the country of origin, departure and journey to Europe; SOGI and related therapeutic issues; and ‘vulnerabilities’ and needs. These reports are particularly useful to pre-empt possible negative assessments of credibility when claimants have not offered clear, thorough or consistent testimonies (Titti, decision-maker; Chiara, NGO worker). However, it is important to avoid any inconsistency between the content of such reports and what the claimant says during the asylum interview (Giuseppe, lawyer; Mara, lawyer).Footnote 69

In the UK, it is acknowledged that medical reports can help decision-makers, especially at appeal level, understand better elements of testimonies and demeanour that are related to PTSD or other past traumatic or violent experiences, rather than indicating lack of credibility (Ashley, psychotherapist). Yet, there are concerns that the authority of such medical reports and their authors is not sufficiently recognised by authorities (Freedom from Torture2016).

We were told that evidence of a sexual nature (such as video recordings and pictures of sexual intercourse) was no longer submitted or expected in any of our case study countries, rightly recognising SOGI claimants’ rights to dignity and privacy. Yet, while all asylum authorities may now be formally compliant with European law and guidance here, many participants reported inappropriate questioning about claimants’ sexual lives. In Germany, although detailed questions about sexual practices are inadmissible (BAMF2017), questions asked in the interview have included: ‘When did you start having sex? Why did you prefer to have a man, instead of-? How many people have you slept with?’ (Alphaeus), ‘Are you top or bottom? What apps do you use to meet men?’ (Marlen, legal advisor), ‘How did you feel when you made first time sex with him?’ (Prince Emrah); ‘Have you ever had sex with a man? How do you feel when you’re having sex with a man?’ (Jolly, focus group no. 3, Bavaria); ‘How lesbian sex looks like in practice’ (Sofia and Emma, NGO workers); what claimants ‘do with their partners’, why they ‘kissed in a car’ (Halim), and details about a rape experience (Diana). One participant even asserted that ‘[s]ome people do [submit naked pictures to BAMF]. I’ve had people that have given them when they are having sex. Pictures. Nude pictures. And they have negatives [decisions]. Someone said that “he is not [gay]”’ (Alphaeus). These reports from Germany were confirmed by our survey (C36). Similar questions were asked at appeal level (Court observation, Hesse, 2019), even in cases where judges are empathic and supportive (Court observations, Hesse, 2018, 2019). Such lines of questioning are not only a violation of claimants’ fundamental rights (Chap. 3) and illegal in the light of the CJEU’s jurisprudence, they are also traumatising:

So I was so annoyed that I even asked the lady [interviewer], I was like, “will it be okay if I asked you if you have ever slept with a man?” I know it was so negative that it maybe could have contributed to maybe 70% of my negative that I received. Because some of the questions were so annoying. (…) And I’m still traumatised. I’m still thinking of how I am supposed to align myself. I mean, yes, I will be open, I will tell you everything, but when you tell me “there are certain questions we do not ask you on your interview about [your] life”, remember I lost my partner. And some of my friends are still on the run (Amis, focus group no. 2, Bavaria, Germany).

Trans claimants in Germany also reported feeling particularly disturbed by very intimate questions about the degree of gender-affirming interventions they had undergone (Bebars; Diana).

Similarly, in Italy, we heard reports of questions of a sexual nature, such as ‘how was your first [same-sex sexual] experience?’ (Silver, Italy), and a judge asking a claimant ‘were you bottom or top?’, after the claimant described a sexual encounter (Nazarena, lawyer). Giuseppe, a lawyer, also reported that:

More than anything else, there is this insistence on purely personal aspects of one’s sexual life, obviously they do not ask what you do in terms of sexual practices, but they are rather insistent on questions about what you did, where you were, how many boyfriends you had, how many boyfriends you have had sex with, have you had sexual intercourse for money, has it ever happened to you, that is, rather invasive questions.

For the most part, however, decision-makers seem to have abandoned questions of a sexual nature: ‘Here is a question not to ask: “tell me about your first sexual relationship”; “It happened when I was twenty years old”; “So what happened exactly?”’ (Titti, decision-maker). More generally:

expecting that these people, in face of a stranger, who is sometimes even a female stranger – which, in my opinion, for a migrant who comes from Africa can constitute a further issue – can, in a free and uninhibited way, tell us about their sexual adventures, frankly, it seems quite ridiculous to me (Filippo, senior judge).

Italian decision-makers now focus more on questions related to the ‘discovery’ of one’s sexual orientation. The questions that recurred were related to when the claimant found out they were gay and how that made them feel. Some decision-makers have highlighted the need to understand the cultural differences that affect sexual experiences and identities:

I have met homosexual people who come from Pakistan, who live homosexuality in a very different way from how they live in the West. I don’t know if they call themselves homosexuals… they spoke of having had a homosexual experience and, because of that homosexual experience, having experienced social condemnation, a form of persecution… very different from how homosexuality would be lived by a person from Western countries. And so it is also different in Africa (Maria Grazia, decision-maker).

Social workers also confirmed this, underlining the culturally biased nature of some questions:

They were very Western questions (…) I remember a girl from Cameroon who was asked: “What does it mean for a young Cameroonian woman to be homosexual?” It is not an easy question. It is a very complex question, which presupposes that a person is self-aware, has accepted [their sexuality], and is not traumatised and has the logical ability to formulate a thought and say what “for me” is to be as they are (Celeste, social worker).

In the UK, evidence of sexual nature has had a particularly turbulent history. In 2013, there were reports of gay asylum claimants filming themselves having sex to prove their claim (Elgot 2013; Hall 2013). The same year, UKLGIG found that despite improvements since 2010, Home Officecaseworkers were continuing to ask inappropriate questions about sexual activities (UKLGIG 2013). Highly inappropriate questions being asked in some asylum interviews were also highlighted in the media, including ‘When x was penetrating you did you have an erection?’ and ‘What is it about the way men walk that turns you on?’ (Taylor and Townsend 2014). In response to all these problematic practices, the government commissioned an independent report by the Chief Inspector of Borders and Immigration on the handling of claims based on sexual orientation (but not gender identity) (ICIBI2014). The Vine report found that more than 10% of the questions asked in SOGI claims were ‘unsatisfactory’, such as ‘[w]hat sexual activities did you do with your girlfriends?’ (ICIBI2014, p. 24) A leading barrister in this field has also cited a case from the same year in which a Court of Appeal judge indicated that he would view a DVD with evidence of sexual behaviour (Yeo 2016). The Vine report recommendations included improved training to avoid stereotyping in interview questions, ensuring that caseworkers do not ask sexually explicit questions and equipping them to cope with sexually explicit responses. The government accepted all of the recommendations. In line with the CJEU judgment in X, Y and Z, sexually explicit questioning is now explicitly forbidden in Home Office guidance, which goes so far as to provide a script for caseworkers in situations where they are presented with sexually explicit material, a script beginning ‘Stop please. I am not going to ask you any detailed questions about sex’ (Home Office2016, p. 29). This has been confirmed to us by a decision-maker:

a lot of people want to tell you, I think they feel, they want you to know, sexually explicit details, and you have to say straight away “that’s not an aspect you need to tell me about, that’s not something I’m going to consider” (Emily, decision-maker).

Yet, like in Germany or Italy, there is no independent complaint office that SOGI claimants can approach if interviewers ask personal, intrusive questions. Furthermore, Beth, a lawyer has highlighted that:

POs [Home Office Presenting Officers in appealhearings] are still asking intimate, unnecessary questions which do not respect our clients’ dignity and do not further the issues, there also is still a real emphasis on actual sexual experiences, which is contrary to the guidance – sometimes the questioning almost appears gratuitous or prying, which is unwarranted and a misapplication of the law.

Another demeaning and humiliating form of evidence we heard was expected, while not routinely required, was for claimants to display scars. In Germany, showing scars during the interview with the BAMF is unexceptional according to one participant (Trudy Ann), violating the claimant’s right to privacy and human dignity, and potentially causing re-traumatisation. Ibrahim told us of an instance of this practice:

The other question which he [interviewer] did – and he is not allowed to do it, because I gave him pictures of my scars, pictures from my surgery and everything – he told me “is this your scar?” I told him “yes, this is my scar”. He told me “let me see it”. And this is not his right, but at some point, to be honest… I knew this was not his right, but I did not realise it, because you are in a moment to prove your right to stay. So you will feel weak, to be honest. You feel weak, you do what they want you to do, just to prove that you have to stay here. So I had to take off my trousers and let him see my scar.

In Italy, too, we were told of instances where territorial commissions asked claimants to undress to show their scars: ‘I have some scar on my back owing to my story, I was asked to undress to see; I undressed, they looked, they really confirmed’ (Fred). This has rightly been criticised by a judge that we interviewed:

The judge, in my view, should not even look at the scars, because that is an act against [the claimant’s] human dignity. They [claimants] often want to show you their scars, but this is certainly an invasive thing that is absolutely not necessary (Silvana, judge).

More generally, claimants are routinely asked about past and current relationships, as well as questions of a ‘romantic’ or ‘sentimental’ nature, implying an expectation that claimants should be sexually active and in (or seeking to be in) an intimate relationship. This was the case across all our case study countries (Kadir, NGO worker, Germany; Leon, NGO worker, Germany; Nicola and Giulio, LGBTIQ+ group volunteers, Italy; Jayne, focus group no. 4, London, UK). In Italy, for example, Susanna, a social worker, told us of a claimant who was quickly granted international protection despite having children in his country of origin (which could have been seen to damage his credibility), mainly on account of evidence he gave of Facebook conversations and relationships with several men during the three-month period he had been in Italy. In situations where this kind of evidence is not available, territorial commissions explore other aspects of claimants’ narratives:

In fact, very recently, I’m noticing that they [territorial commissions] are asking different types of questions. No longer connected to “coming-out”, of which they [some claimants] have no awareness, but linked to the way they were discovered when they were with one person rather than another, [the commissions being] aware of the zero level of schooling and lack of awareness, of the young age that makes it impossible for one to tell of a conscious experience (Silvana, judge).

This is more in line with the CJEU decision in F,Footnote 70 which emphasised the assessment of risk of persecution on account of one’s – real or perceived – SOGI rather than ascertaining one’s actual SOGI. In the UK, asylum authorities also expect evidence of relationships, which may then be disregarded:

I put in pictures, they wanted, when I went for the interview they said they wanted pictures of me and my ex-girlfriend and I presented, they didn’t want in their words anything explicit. So I took some holiday pictures and put it in there, and the judge said, they are just two women on a beach (Jayne, focus group no. 4, London).

Evidence may also include indications of the claimants’ willingness to integrate, any signs of successful integration, and overall ‘good character’. This is more clearly the case in Germany (Noah, NGO social worker) and in Italy, where the degree of integration in society is increasingly a factor mentioned in NGO supporting statements (Anna, LGBTIQ+ group volunteer), as it may contribute to a positive decision (Tribunal observation, northern Italy, 2018).

Decision-makers also rely on evidence from the internet, but this may not be appropriate or sensitive to different contexts. In Germany, for example, we were told that Google Maps may be relied on as a source, although the data is not always up-to-date or may include changes that occurred some years after the claimant left their country of origin (Alphaeus). In Italy, participants told us of commissions’ often unrealistic expectation that relevant events will be reported by news agencies and on the internet. However, in any country (of origin or reception) there will be many incidents of violence or abuse that are not reported, especially when they take place in remote areas or areas controlled by non-governmental forces, where there is no internet connection, or where information is not made available on the internet for fear of persecution (Kennedy). Giulia, an LGBTIQ+ group volunteer, also shared with us what she had heard at an appeal hearing in this respect:

The judge said, ah, that the guy, that it was not possible for him to have set up this LGBT anti-discrimination group because there was virtually no online record, because there is no evidence, and actually [claimant] said, “but how can I put that stuff online, if they arrested me is because I distributed flyers”.

While asylum authorities expect to be given extensive evidence, they often dismiss it when they have it. For example, in Germany, SOGI claimants are asked about their involvement with LGBTIQ+ groups, but when pictures and videos of participation in Pride parades are submitted, they are often dismissed, for example, on the grounds that ‘anyone can go to the Pride parade’, ignoring the courage and risk involved in ‘outing’ oneself in this way (Gisela, lawyer; Elias, lawyer; decision regarding participant D33 in Held et al. 2018). The UK Home Office also adopts a selective approach to the way it considers evidence. For example, in the case of Lutfor, although both his statement and the report produced by the Helen Bamber Foundation stated that his father gave him money and told him to leave the country and not come back, the Home Office said: ‘It is also noted that your father, brother and 4 sisters remain in Bangladesh, and there is no reason to suggest that they would not adequately support and assist you on return’. Joseph, an NGO volunteer, confirmed this selective approach to evidence by pointing out that:

often I notice with the Liverpool office, that letters from partners are ignored in the decision when it comes back. “We received this, this, this, this and this”, and then no comment is made on the supportive bits and that is very common.

There is, therefore, much scope for improvement in relation to the types of evidence required, accepted and used by asylum authorities in all three countries under comparison. This has important implications for the outcome of the asylum adjudication process in contributing to the assessment of the credibility of the claim.

5 The Assessment of Credibility

Credibility assessment remains the single most contentious and problematic issue in the field of SOGI asylum. Despite endless debates, recommendations and reforms, consensual and good quality practices seem to be difficult to achieve (Gyulai et al. 2013; UNHCR2013). According to UNHCR Guidance, ‘[c]redibility is established where the applicant has presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore is, on balance, capable of being believed’ (UNHCR1998, para. 11). This includes internal credibility (consistency within the testimony) and external credibility (consistency between the testimony and publicly known information). The UNHCR adds that ‘credibility should be assessed through individualized and sensitive questioning, using both open-ended and specific questions that are crafted in a non-judgemental manner’ (UNHCR2012, p. 62 ff).

This still leaves much leeway to domestic authorities as to how to use all the evidence collected to reach a decision on the credibility of SOGI claims, and decision-makers themselves are acutely aware of the risk of getting it wrong, both by refusing to grant international protection to someone who was entitled to it or by granting it to someone who was not entitled (Emilia, judge, Germany). The lack of resources prompts decision-makers to ignore the requirement for individualised credibility assessment and resort to ‘staple’ decisions:

there are three, four page forms, they are all copy-and-paste. That means that besides the individual rejection reasons, which are derived from the interview, one also finds copy-and-paste reasons. (…) Copy-and-paste answers that completely bypass the reality of life (Noah, NGO social worker, Germany).

Credibility is the basis of all asylum applications, but particularly difficult to ascertain in SOGI and gender-based claims, where persecution is likely to be undocumented, take place in private and often at the hands of family and other non-state actors. It is also worth pointing out that credibility is sometimes used to refer to the claim, and other times to refer to the claimant, even within the same document (UNHCR2011). A legitimate claim is a credible claim, and a credible claimant is perceived to be a truthful claimant (Khan 2016, p. 217), but this imposes unrealistic expectations on claimants who will almost inevitably have had to use deceit of some kind to reach European soil. SOGI minorities will, by definition, have had to live covertly to some extent in their country of origin and have generally endured such traumatic experiences that they are unable to present their case to the standard required (Chap. 5).

Experiences may vary for different SOGI minority claimants. We were told that authorities:

tend to find it easier with trans people, particularly trans people who are in some stage of medical transition, because there is a visible presentation… when it comes to sexual orientation that is extremely difficult (…) there is not necessarily any visual cue about the person’s sexual orientation unless you start to rely on stereotypes. And stereotypes can never be consistent and that’s where I think the bigger issue is at the moment (Jules, staff member at ILGA-Europe).

This was confirmed by our participants in different countries. In the UK, Allan, a lawyer, told us that ‘generally with trans people there will be some sort of transition which will be visible so it’s less likely that the decision-maker will disbelieve them on that’. Similarly, in Italy:

for trans asylum seekers or in any case on the basis of gender identity, it is simpler than working with people who instead made the request on grounds of sexual orientation. Because, paradoxically, the medicalisation and the pathologisation of trans bodies allows us to demonstrate that we are indeed trans, with a lot of medical and psychological certificates, so when we reach the Commission, the road is open. In reality, paradoxically, trans people find no difficulty when applying for asylum. Instead, homosexual people have the difficulty that there is no scientific method to prove whether a person is homosexual or not. We must trust the story that a person presents (Valentina, social worker, Italy).

Trans claimants also acknowledge this trend:

Fortunately, when I went to the [territorial] commission, I already had a beard, I had already started hormonal therapy a year and a half before… and how I dress, how I speak, so there is no doubt of what I said in that respect (Kamel, Italy).

Both SO and GI asylum claims, however, are subject to an assessment of credibility in all three countries under comparison, as even trans claimants only have an ‘advantage’ ‘[u]ntil a point that you are passing which, in which case it can become… something [of] a point against you’ (Jules, staff member at ILGA-Europe; Sect. 7.3.2).

All three countries under comparison offer decision-makers some sort of guidance as to how to assess a claimant’s credibility. In Germany, although such guidance is not publicly available, it is clear from BAMF decisions what decision-makers expect in order to consider a testimony credible: testimonies should be coherent, specific, detailed and vivid, ideally peppered with ‘unnecessary, unusual and original details, which are usually hard to make up’ (Decisions on case of participants DE17 and DE40 in Held 2018). Claimants’ credibility is often challenged because of implausibility, inconsistency or lack of detail (BAMF decision appealed in Court observation, Hesse, 2018; Hübner 2016; Kalkmann 2010). Indeed, several of our participants in Germany saw their asylum claims refused on grounds of lack of credibility (for instance, William, Tina, Zouhair, Winifred, Veronica and Julia). The BAMF appears unable to deal with the complexity and variety of people’s lives:

through the glasses of BAMF, just how drastic the narrative is, so… because not too many things must have happened… There is a woman who has, or there are now several women, but the most blatant case, one who has experienced forced prostitution in China, so from Uganda to China, then she had different [experiences], then fled to other African countries, where she was raped, and then [fled] again to Germany, where she has been almost forcibly prostituted. And… she is also lesbian, and with her partner, so to speak, and different things… escaped, and so, for the Federal Office, this is so blatant that it cannot be credible, such things. That’s just too much, but it should not be too little either, so really you have to stop [at the point where] you really lose your partner, or you yourself almost got killed (Sofia and Emma, NGO workers).

Besides being expected to reach a ‘perfect’ degree of ‘dramatic narrative’ (something which may vary from decision-maker to decision-maker), the level of detail and consistency required of claimants is often also unreasonable in light of their personal circumstances: ‘I can explain the suffering I went through because it happened to me. But it’s the exact… these small, small things. (…) Sometimes you lose the dates. (…) Because of stress’ (William).

In Italy, it has fallen to the high courts to offer some guidance. In a case related to a gay man from Nigeria, the Supreme Court established that the evaluation of an asylum request should be based on clear steps and objective criteria statutorily established. The evaluation should be made in light of the individual situation of claimants, including their social class, life experiences, sex, age, and the social context of their home country.Footnote 71 This should correspond with an intersectional approach to decision-making (Chap. 3), but whether it does is another matter. The Court also stated that contradictions related to secondary aspects of the claimant’s account should not be given weight if the main event on which the claim is based is deemed credible. This should help to eliminate stereotyping and culturally-specific expectations from the Italian asylum system, but in practice that has not always happened. In relation to the notion of time, for example, commissions may have expectations based on Western conceptions that are damaging to claimants:

It is very important for an Italian, “what did you do on the fifteenth of January this year?”, “What happened to you on the sixteen of January last year?” That, for an African man, is unthinkable to be able to understand, to have the same time line as a European. For them, time does not exist as we understand it. I often noticed that with the men [claimants], I give them an appointment at four, of course, for him, at four it means that day, it does not mean at four o’clock that day. So it is very complicated, it is very difficult to succeed, in the Commission, to be linear as they wish (Valentina, social worker).

Elsewhere in this section we see how Western stereotypes affect SOGI claims in other ways (Sect. 7.5.1).

In the UK too, the existence of good guidance does not necessarily lead to high-quality credibility assessment. Both the 2016 Sexual Orientation guidance (Home Office2016) and the 2011 Gender Identity guidance (Home Office2011) emphasise many of the issues that campaigners and advocates have raised, including in relation to credibility assessment. For example, they stress that the claimant’s credibility is not necessarily undermined by having had opposite-sex relationships or children. The Gender Identity guidance points out that where there is intolerance of non-conformity in gender behaviour, there is also likely to be intolerance of trans people (Home Office2011, p. 15). However, these guidance instruments are not adequately applied. Credibility assessment in the UK has been found to be ‘particularly poor’ in relation to SOGI claimants (House of Commons Home Affairs Committee 2013, p. 27). Although after 2010 there seemed to be better protection for individuals fleeing persecution on the basis of their SOGI owing to the limitations imposed on the ‘discretion requirement’ (Sect. 7.3.2), in practice, claimants found credibility had become the new obstacle to recognition of their claims. 2010 has thus come to be seen as the year when the message to SOGI asylum claimants changed from ‘be discreet about your sexual orientation’ to ‘prove that you are gay’, similar to experience in Australian SOGI asylum law (Millbank 2009a). This has shifted the assessment of credibility towards elements related to membership of a PSG, rather than persecution. The Vine report found an almost complete correlation between whether a claimant was accepted as LGB and whether they were granted international protection (ICIBI2014, p. 34). Time and again refusal letters and subsequent rejections at appeal are based on decision-makers not believing claimants’ SOGI. Current practices also seem to reflect a medical and pathological notion of non-heterosexuality:

The Home Office approach seeks answers, rather than understanding. An interrogative approach that addresses the curiosity of the questioner is framed from their perspective (and consequently, their assumptions and prejudices). By seeking factual verification, this empirical approach, in my experience, is founded on a perception of homosexuality that is deeply rooted in a medical model, and seeks evidence of it as a pathology (Fletcher 2017, p. 230).

The existence of administrative or judicial guidance is thus not a guarantee that credibility assessment is carried out to an appropriately high standard. This can be seen in the persistent use of stereotypes regarding what it means to be a member of a SOGI minority (Sect. 7.5.1), expectations about how a member of a SOGI minority should express and experience their SOGI publicly (Sect. 7.5.2), and the way that asylum authorities often deny claimants the right to provide clarification of their narrative, thus promoting a culture of disbelief (Sect. 7.5.3).

5.1 Stereotyping ‘Gayness’

Individual prejudices and Eurocentric understandings of SOGI still plague asylum adjudication systems, polluting credibility assessments, as confirmed by Helena (EASO staff member) as well as Jules (staff member at ILGA-Europe): ‘when it comes to sexual orientation, I think there is still an expectation of performance. Of performing certain stereotypes’. The use of inappropriate, culturally-biased and even offensive stereotypes in RSD has been extensively documented. As most decision-makers have a Western, heteronormative outlook on the world, claimants need to comply with certain norms in order to be perceived as credible (Gartner 2016). These stereotypes and norms include expectations of a ‘coming out’ narrative, identification with the opposite/another gender, involvement with LGBTIQ+ activism, attendance at LGBTIQ+ social and nightlife spaces, familiarity with LGBTIQ+ culture, being sexually active according to the self-identified SOGI, and not ever having had heterosexual partners or children (Bennett and Thomas 2013; Fernandez 2017, p. 202). Failure to meet all or most of these stereotypes may be punished with failure to recognise PSG membership or, more generally, denial of credibility. Conversely, meeting all these stereotypes too neatly may be seen as a sign of fabrication or dramatisation, which may also mean the claimant is found not credible (Batchelor 2018). For the claimant, it can feel like a no-win situation.

Our fieldwork confirmed that many of these stereotypes are still pervasive, as well as unearthing other stereotypes that affect credibility assessment. Across all our country case studies, decision-makers’ personal attitudes and prejudices impact on findings of credibility (Court observations, Hesse, Germany, 2019; Nicola and Giulio, LGBTIQ+ group volunteers, Italy; Valentina, social worker, Italy; Gary and Debbie, NGO workers, UK; Oliver, NGO worker, UK). Our participants also spoke about decision-makers having various degrees of sympathy towards claimants and the impact that this has on credibility assessment (Emilia, judge, Germany). Our findings relating to the use of stereotypes by decision-makers correspond to those of a survey conducted in North Rhine-Westphalia, Germany: 22.5% of the 40 respondents who had claimed asylum on SOGI grounds met stereotypes in their interviews (Held et al. 2018).

We heard that many decision-makers are influenced by their first ‘visual impression’ of the claimants and their stereotypes of what an LGBTIQ+ person looks like (Frank S., legal advisor, Germany; Noah, NGO social worker, Germany; Louis, NGOvolunteer, Germany). Clothes and demeanour play a critical role here, with decision-makers sometimes being more inclined to believe ‘camp’ male claimants and ‘butch’ female claimants (Thomas, NGO volunteer, Germany; Kadir, NGO worker, Germany; Sabrina, NGO worker, Germany; focus group no. 6, Lower Saxony, Germany; Gary and Debbie, NGOvolunteers, UK; Oliver, NGO worker, UK). One participant reported being told by the interviewer that ‘[y]ou don’t look so gay’. He was aware that members of an LGBTIQ+ group which he frequented had a 100% success rate where claimants attended the interview wearing make-up and female clothes; conversely, gay claimants with a ‘mannish’ appearance were less likely to obtain a positive decision (Zouhair, Germany). Fares (Germany) also expressed his worries about decision-makers’ stereotypes:

My best friend, he’s totally gay, but at the same time his situation is really hard. He came from Iraq, and they didn’t accept that he’s gay. They told him “no, you are not”. Just, he don’t look like a gay. Should he wear make-up or something like that? This is the problem here. They didn’t believe that he’s gay, because he went like this, like me now. He doesn’t have any make-up, just go there.

In the UK, we found that some decisions analyse at length the claimants’ build, haircut, use of make-up and overall (more masculine or feminine) manner (Zena, First Tier Tribunal Appeal, London, 2018, decision paper). Such stereotypes can also be found in the judiciary:

since then [2016] I think the bog-standard stereotypes have come back. That is more at a judicial level rather than at Home Office level. The Home Office level are a bit better at not saying the bog-standard stereotypes. I recently saw an appeal where a judge said that the client staying in contact with their children was not the actions of a genuine lesbian. They are coming back quite often in judicial (Allan, lawyer).

Such reliance on stereotypes when considering claimants’ demeanour struck our participants as unfair:

I would not consider your physical appearance and then evaluate it: “Hm, but you are not heterosexual enough. But you could let the hair grow longer and so on. And you don’t have enough make-up and you can wear more earrings and skirts, please.” I would never do this, so why is the opposite allowed, and say whether someone is LGBT enough or not on the basis of their physical appearance? (Kadir, NGO worker, Germany).

The intersections between sex, gender, sexuality, cultural and ethnic background possess a significant influence in this context, which is often overlooked by decision-makers despite its importance from the perspective of our feminist and queer theoretical underpinnings (Chap. 3). Lesbian claimants may struggle to convince decision-makers, as many of the most concrete SOGI stereotypes relate to gay men, while ‘lesbian sexuality is either invisible or it is treated in a manner verging on the pornographic’ (Lewis 2014, p. 966). An example of this was shared with us by Sean, a lawyer in the UK:

she [claimant] was found lacking in credibility, that [according to Home Office] “she is not a lesbian and the information you provided doesn’t change our mind”. And we say “well, that is ridiculous, because you have got 11 witnesses who believe that she is gay, three ex-partners who know that she is gay, and all attesting to their relationships with her”.

Female SOGI claimants also seem to be affected by particularly ludicrous stereotypes and crude lines of questioning:

In court, Home Office representatives occasionally suggest that gay women cannot really have sex. They suggest or imply that female partners cannot discern each other’s sexual orientation and therefore cannot give reliable evidence (S4, lawyer, UK).

Trans participants are also defined by stereotypes, with Diana (Germany) told by the interviewer: ‘you don’t look like a trans’. Witnesses are also expected to conform to stereotypes, with judges often expecting ‘typical’ LGBTIQ+ people to appear in support of claimants (Bilal, presenting officer, UK).

Unfortunately, but unsurprisingly, as SOGI claimants become aware of the power of SOGI stereotypes, they may find it expedient to adapt their behaviour to conform to those stereotypes when attending interviews and hearings, for example, wearing rainbow flag motifs when otherwise they would not do so (Tribunal observation, northern Italy, 2018; Selim, UK; Joseph, NGO volunteer, UK). In this way, SOGI asylum systems foster ‘homo-cultural essentialist paradigms’ (Hinger 2010, p. 389). This leads to situations such as the one described by Allan, a lawyer in the UK:

My client, I wouldn’t describe him as stereotypically gay, but he had a busload of friends who all were. It was high camp at the back of court and it was all very hilarious. He had, I think, four people give evidence that he had had sex with. I’m like, what is the point in doing this case? It is completely ridiculous.

Yet, not all claimants are able, even if they wish, to conform to decision-makers’ stereotypes:

Recently I have come across many cases of LGBT+ people seeking asylum had been dispersed to areas which are not diverse and there is no LGBT+ community and that has had an enormous impact on their me[n]tal health and in proving their case and Home office want to know if they had been to any LGBT+ bars or clubs since coming to UK (S145, community development worker, UK).

Stereotypes also relate to the frequent assumption by decision-makers that religious beliefs are incompatible with belonging to a SOGI minority. In Germany, for example, we observed this dialogue in an appeal hearing:

Judge: How can you be religious and gay at the same time?

Claimant: My religion was given at birth, I grew up with it. I decided to convert later. But now I don’t mix my sexuality and religion together. I don’t think of sex with men when I am praying to God. And I don’t think of God when I am having sex with men.

Judge: So you believe in God when you are not having sex and when you have sex with men, suddenly God doesn’t exist anymore. Is that what you are telling me? (judge laughs) (Court observation, Hesse, 2019).

In Italy, there were similar accounts. Antonella, LGBTIQ+ group volunteer, stated that:

A question that the Commission may ask: “but how can you, as a believer, still manage to be homosexual even if you are a believer, a Muslim” and … those are questions that are, I consider them a bit idiotic because you cannot ask someone why they are homosexual. You just are, full stop.

Giulia, an LGBTIQ+ group volunteer, also offered an example of such stereotypes:

But then he [claimant] came here [to Italy] and the first ones who spoke to him in English, who were able to communicate with him, were these Jehovah Witnesses. He goes there, spends some time with someone, has some company, has a network of contacts, that is, this somehow helps him, but he does not realise what Jehovah Witnesses say about the LGBT population, what the Witnesses’ ideas are. (…) Yet, for the judge it was a cause of inconsistency [but for] the claimant this did not even go through his mind. He likes to be there [with Jehovah Witnesses], they do the meetings, and he likes to come to meetings with us because he’s gay.

This problem is particularly evident in the UK. Home Office questions often require Muslim and Christian SOGI claimants to explain an assumed tension between their religious and SOGI identities (UKLGIG 2013, p. 15, 2018), assuming both that certain world religions have a single position on these issues and also that individual believers are able to reconcile different aspects of their identity in a tidy package:

Given your awareness of the treatment that lesbians receive in Pakistan, along with the fact that your own religion condemns same sex relationships, it is inconsistent to suggest that you would have felt “blessed” and thanked God when you discovered you were a lesbian (Mary, Home Office decision, 2016).

Another example can be found in a Home Office refusal letter dated July 2018: ‘Given that you are a practicing Christian, your failure to raise any potential conflicts in relation to your behavior and faith raises doubts concerning your credibility’. NGOs have also confirmed this approach by the Home Office:

he [claimant] was really shocked when they confronted him about how can you be gay and Christian. He was, he said “I was completely upset and thrown by that question”, because he had always been a Christian and he has always been gay and so for him it’s simply how it is, the fact that it is difficult to reconcile with what people tell you, is just, it is just the way it is (Debbie, NGO volunteer).

Legal representatives are understandably concerned: ‘Then there are other stereotypes about religion. That is really starting to grow. “This is not compatible with your religion.” Even asking the question, “How is this compatible with your religion?” and then not accepting what the person says’ (Allan, lawyer). Failure to offer an explanation that satisfies decision-makers may further undermine credibility. This approach by the Home Office is in clear tension with the anti-cultural essentialist and anti-homonationalist approach we adopt in our analysis (Chap. 3), to the extent that it reflects a reductive and stereotypical understanding of the relationship between culture, religion, ethnicity and sexuality, and presumes the decision-makers’ own culture deals with such matters more convincingly. Decision-makers also display stereotypes and Western or Eurocentric values in their expectations that claimants be ‘out’ about their SOGI.

5.2 Be ‘Out and Proud’ – The Western Way

Across all countries under comparison, we encountered an expectation on the part of decision-makers that claimants be ‘out and proud’ in ways conforming to Western cultural perceptions. This expectation relates both to how claimants live their daily and personal lives and to whether they take part in community initiatives and events.

For example, having a same-sex partner was invariably beneficial for credibility assessment purposes, even if this was simply a sexual partner willing to confirm the claimant’s alleged sexual orientation.Footnote 72 This expectation was most evident in the UK:

[I feel] Very scared because I don’t know how to prove my sexuality. They said they don’t believe me because I’m not in a relationship now and have no proof that I have been in a same sex relationship in my home country (C54).

UK decision-makers often had precise expectations of what such relationships should be like, which they often expressed insensitively. Relationships were expected to be based on trust and full disclosure of past experiences:

It is not conceivable that the allegation of the rape and the account of her [claimant’s] experiences in Malawi would not be shared with an intimate partner and I draw the conclusion that it was not referred to because the appellant and [her ex-partner] were not in an intimate relationship at all (Jayne, First Tier Tribunal decision, Birmingham, 2017).

Relationships were expected to last for a minimum amount of time:

People may rely on partnerships in the UK to attest to their sexuality and there are heteronormative expectations on what those partnerships should look like, therefore a person with a number of short relationships may not have someone willing to provide a witness statement because they are no longer together. There are heteronormative expectations regarding the length and longevity of relationships (S147, barrister).

Partners should share a strong emotional connection as well as a physical attraction:

Aside from stating that [X] had a nice body and smile and was beautiful and handsome (…), you do not describe any emotions around your relationship with him. Given that you had been together for ten years prior to him passing away in a car crash (AIR Q107), it is considered that some description of your emotional connection to him would be reasonable to expect, however you purely describe your relationship as only being sexual (Vincent, Home Office decision).

Partners should be able to remember what decision-makers viewed as critical dates in a relationship:

When asked why she was unable to remember the date, she stated that neither she nor [X] remembered this and did not pay any attention to it. I do not find it credible that the Appellant… would not be able to recall basic details about when in 2013 they met and how and when in 2014 their relationship developed into more than friendship (Mary and Zaro, appeal decision, 2016).

Legal representatives confirmed – and were critical of – such expectations:

[Another problem] It’s conflating sexuality with sex. It is saying, “You are not sexually active, therefore you are not gay.” They [decision-makers] don’t literally say those words, but if you go to court and you haven’t got a partner, you have never had a partner, it is so much harder for them to accept your sexuality. It is, “You don’t have a boyfriend now” or “You don’t have a girlfriend now”. Yes, but so what? That doesn’t make you not gay or lesbian (Allan, lawyer, UK).

Even claimants who had endured traumatising experiences, such as slavery and trafficking, were expected to be in relationships (Zena, First Tier Tribunal appeal, London, UK, 2018). This fails to recognise how difficult it is to establish and maintain any such connections while going through the stressful and often lengthy process of claiming asylum:

when I started asylum [in] 2015, I was in a relationship, but the process got me into so much depression, it affected [me], I lost the relationship. I just made my mind since then that I don’t think I am in a right state of mind with this process to be in love with anyone, I don’t think I can be able to, if I can’t put up with myself, I don’t think I would be able to look after somebody’s emotions (Jayne, focus group no. 4, London, UK).

The expectation to have a partner is understandably perceived as unfair by claimants: ‘Because it is normal for someone who is not seeking asylum to be single, but it is not normal for an LGBT asylum seeker to be single, you understand?’ (Jayne, UK). Supporters see this expectation as a source of increased risk for claimants: ‘the systems are institutionally bias on many levels anyway – there is much unconscious bias. People are expected to provide evidence which pressures them into unsafe relationships or situations…’ (S57, NGO volunteer, UK). It is also an unacceptable interference with claimants’ personal choices of when and how to develop romantic relationships (Harriet, focus group no. 2, Bavaria, Germany; Alphaeus, focus group no. 3, Bavaria, Germany). The expectation of a ‘romantic’ or ‘emotional’ narrative can also be inappropriate because it may be absent from some claimants’ accounts (Roberto, decision-maker, Italy). For example, a judge in Italy told us that:

now they arrive very young – like 18 year olds – who are not homosexual at all, but were forced into prostitution and, therefore, were perceived as homosexuals by the state authorities, but who have zero awareness of their sexuality. They conceive it purely as a physical action, so they cannot express anything related to their awareness and this is often seen as a factor of non-likelihood and non-credibility. This is therefore a huge problem, of course (Silvana).

As the accounts above show, credibility assessment in Germany, Italy and the UK eventually lead to some kind of exploration of the claimants’ sexual consciousness and experiences: ‘that initial bit of the interview where you are talking about their realisation of their sexuality… that is the key core’ (Qasim, decision-maker, UK). There is a lack of awareness that claimants’ lives – like those of everyone else – are multi-dimensional and cannot be reduced to their SOGI and related experiences (Chap. 3).

In Italy, this exploration often concentrates on the claimant’s journey of sexual self-realisation and the expectation that this would be ‘extremely troubling’ to them (Titti, decision-maker) or, at the very least, that there be a clear journey of (non-heterosexual) sexual awakening (Vincenzo, LGBTIQ+ group volunteer). To find claimants credible, asylum adjudicators seem to expect them to somehow prove the emotions and suffering they endured during this self-realisation process, by providing very specific and typically Western answers, something that happens to some extent across all asylum claims (Woolley 2017). If claimants are not able to express such feelings or suffering using notions familiar in a European context, their applications risk being rejected:

they [interviewers] said in my face, they did not feel the emotion, how sad I was. I asked myself: why do they want me to be sad? If I’m already free, why should I be sad? Why do I still have to show sadness? (…) in the Italian conception, they need, perhaps, to see the tears flow, but we are not always like that. They [decision-makers] must understand that everyone is different. There are people who will cry, there are people who will not cry. Each one is different (Cedric, focus group no. 5, southern Italy).

In contrast to some territorial commissions, Italian judges have afforded significant importance to claimants’ psychological difficulties in reporting their personal story.Footnote 73Lawyers have also showed awareness of how inappropriate such expectations of emotional display are:

they [territorial commissions] expect a strong emotional participation, but in reality one needs to understand that a person [claimant] is speaking with some embarrassment and therefore the emotions can be externalised or not externalised, there is embarrassment, for them it is objectively very difficult to understand those that can be the real criteria (Damiano).

Some decision-makers are conscious of this issue as well, such as Maria Grazia:

I [very often] ask [to sexual orientation claimants] “what did you feel when you kissed a man for the first time?” I mean, I try to refer to my experience, but I realise that it is my experience, that of a Western woman.

To avoid Western conceptions of sexuality and emotion dominating credibility assessment, appealjudges have found it credible that claimants would place more emphasis on the physical aspects of their sexuality than the emotional one, overturning decisions by territorial commissions denying international protection owing to lack of credibility.Footnote 74

In the UK, as past research has identified (UKLGIG 2018, pp. 23–26), decision-makers expect the ‘journey of sexual awakening’ to be verbalised by claimants in emotional terms:

I think the majority of LGBT applicants I felt to be, I have recommended to be a refusal because… they are not able to describe any kind of… emotional internal detail about how they came to realise that they were gay, how that has in fact impacted their life, it is, they… I tell them at the start of the interview that I don’t want any kind of explicit detail, and some people tend to focus on just the sort of physical aspects on the claim. Which is a big “no, no” for us and we don’t, that is not the kind of information that we are looking for. (Qasim, decision-maker).

If they want to convince officials, claimants are expected to put their emotions on full display: ‘What struck me was that her account lacked any kind of emotional depth or detail of her journey towards her sexuality in a place where such relationships are criminalised and taboo’ (Jayne, First Tier Tribunal decision, Birmingham, 2017). The requirement to present an ‘emotional journey’ is particularly unrealistic and inappropriate for claimants who may be suffering from PTSD, who experience numbing, and who wish to avoid thinking about traumatic past events in their life (Shidlo and Ahola 2013, p. 9). One survey respondent reported that this seems to ‘trip up’ men in particular: ‘I see a number of refusals of men on the basis that they have not articulated their feelings with clarity’ (S147, barrister). An example of this can be seen in the UK Home Office decision in Vincent’s case:

You state that you first began to realise your sexuality as you would have sex with your neighbour at the age of eight (AIR Q71). It is considered that your account of this claimed experience is particularly vague, unclear and fails to actually substantiate an apparent self-realisation of your claimed sexuality based on an otherwise socially unacceptable situation with your neighbour. Therefore, concerns are raised as to this account of your realisation, due to the incoherence within it.

It is not clear why the claimant’s testimony in this regard is seen as ‘vague’ and ‘unclear’. What details was the interviewer expecting? Why did the interviewer not ask for them or seek clarification at the time? Was it deemed incoherent simply because the same standards of social acceptability are expected of everyone, regardless of culture, nationality, class and a range of other factors? Vincent’s Home Office decision goes on to state:

Aside from feeling afraid and fearful of others harming you, you make no mention of your emotions of being gay in a homophobic society. It is considered that you would have some trouble coming to terms with your sexuality given the environment you were brought up in (AIR Q76) however you make no mention of this and simply state that you felt thrilled.

It is unclear how many more adjectives the decision-maker expected from Vincent describing his feelings, or what sophisticated emotional narrative would have satisfied them.

There are records of claimants having been expected to define themselves using terms familiar to the decision-maker rather than ones that are familiar and meaningful to the claimant: one claimant was reportedly disbelieved for saying the ‘T’ in ‘LGBT’ stands for ‘Trans’ and not ‘Transgender’ (Beresford 2016). ‘LGBT’ itself may be an unfamiliar acronym for some SOGI claimants: ‘for all different social and cultural reasons, LGBT is not a commonly used term to refer to sexual identities of persons within these categories in Afghanistan’ (ICIBI2016, p. 23). Expecting SOGI self-awareness according to Western standards and terminology is unreasonable, as one survey respondent pointed out:

Applicants are also expected to have reflected on their experiences and have a degree of insight that is unrealistic where they have never had access to any kind of support and where the only message they have received about LGBTQI+ in their country of origin is that it is wrong (S4, lawyer, UK).

It is also striking that when claimants narrate their sexual experiences, transgressing social norms and engaging in risky behaviours often damages their credibility (UKLGIG 2018, p. 32): ‘It is considered questionable that such overt and direct sexual behaviours were instigated in such a setting, given that being gay in Malawi is illegal and the punishment could be imprisonment’ (Vincent, Home Office decision).

Decision-makers in all our country case studies also based their credibility assessment to a significant extent on whether claimants were ‘out and proud’ in the community or not. Claimants were frequently asked about their experiences of frequenting LGBTIQ+ venues, membership of LGBTIQ+ associations, and attending LGBTIQ+ events such as Pride. This was the case in Germany (Shany; Barbara, lawyer; Gisela, lawyer; Nina, legal advisor; Thomas, NGO volunteer; Court observation, Hesse, 2019; William, focus group no. 2, Bavaria), Italy (Giulia, LGBTIQ+ group volunteer) and the UK (Allan, lawyer). Where claimants did not have much evidence in terms of being publicly ‘out’ and involved with the LGBTIQ+ community, they risked receiving a negative decision. Accordingly, activist claimants with evidence of their involvement with protests and parades were more ‘believable’ than those claimants who had lived their SOGI ‘undercover’ in their countries of origin (Barbara, lawyer, Germany).

Yet, being involved with the LGBTIQ+ community should not be an expectation, in light of the lack of involvement of many ‘native’ LGBTIQ+ people with those structures and groups (Sofia and Emma, NGO workers, Germany). This expectation places undue pressure on claimants to reveal their SOGI in public contexts, running the risk of exposure were they to return to their country of origin. Finally, such public engagement may be difficult or impossible for some claimants, depending on their economic resources, health condition, experiences of discrimination and reception conditions (Chap. 8 and 9; Evelyne and Anne, lawyers, Germany; Jordan and Morrissey 2013, p. 14).

The impact of this sort of expectation on credibility assessment is of great concern to legal representatives:

there is often a real “stereotypical” and wrong focus on whether the individual goes to gay clubs or particular bars or reads particular publications or is part of particular social media groups. This is treated as determinative of the individual living openly and so being at risk – which is a very narrow and restrictive approach as to how a LGBT person lives or should be required to live, and also imposes an artificial and potentially prejudiced and discriminatory expectation and projection. It is as though “one size fits all” and if you do not behave in a certain way then you should not be afforded the protection of the Geneva Convention, which cannot be right (Beth, lawyer, UK).

If claimants were given the opportunity to fully express themselves, clarify any inconsistencies in their account, and listened to with an open mind, then some of the problems highlighted above might well be resolved. However, it is clear that asylum authorities do not always give claimants the time and space they need, instead, using any inconsistencies to cast doubt on claimants’ credibility, reflecting and reinforcing a ‘culture of disbelief’.

5.3 A Persisting Culture of Disbelief

There was a clear perception amongst our participants that decision-makers use inconsistencies and contradictions to deny international protection, rather than seeking clarification from claimants through further and more sensitive questioning. In Germany, we heard that small misunderstandings are used to undermine claimants’ credibility, for example, asking claimants about their participation in ‘CSD’ (Christopher Street Day), which is how Pride parades are known in Germany but which is an acronym that is likely to be unfamiliar to claimants, who then answer that they have not participated in such events, even when they have (Frank S., legal advisor; Nina, legal advisor). In Italy, one of our participants – Odosa – told us his asylum claim had been denied simply on account of a perceived inconsistency in his testimony (regarding how his hand had been hurt), without the interviewer taking the time to seek clarification. Other participants had similar experiences (Buba). Similarly, in the UK, both at administrative (UKLGIG 2018, p. 18) and appeal level, minor discrepancies and the failure to recall certain details or people are portrayed by the Home Office as evidence that SOGI claims are fabricated (Upper Tier Tribunal observation, London, 2018).

Yet, some decision-makers are conscious of their obligation to ask for clarification and further detail, (Oscar, judge, Germany), and some are also conscious that small inconsistencies may in fact demonstrate that events have been experienced, not simply memorised (Court observation, Hesse, Germany, 2018). Some also recognise that minor inconsistencies do not undermine a claimant’s credibility where they do not relate to material points in the asylum claim (Court observation, North Rhine-Westphalia, Germany, 2019). Importantly, there is some awareness that claimants should have the opportunity to comment on elements of the testimony that the interviewer may find non-credible. In Italy, for example, Daniele, a decision-maker, told us that:

if I have a claimant who gives me elements that from my point of view, to ascertain sexual orientation, are implausible, I don’t keep them for myself. I tell him: “Look, you are telling me that you have a homosexual orientation that you have become aware of in this way, but I must point out to you that this statement of yours is very difficult to believe on the basis of how one can generally think that a sexual orientation is matured”. (…) This is always done, because we know that the interview must have a cooperative character. (…) [but] Basically not everyone [amongst the commission’s members] does that (laughs). I mean, if some non-plausible elements are offered, it is not the case that this non-plausibility assessment is generally shared with the claimant, but in my opinion it should be done in this way and I generally do so, ok?

In the UK, as well, Emily, another decision-maker, said that ‘[i]t’s quite good to be able to put that [inconsistencies] to them [claimants] at the time, so that they can [clarify them], there might be a reasonable explanation, so it’s good to be able to put that to them’ (Emily, decision-maker). However, this awareness by some decision-makers of the need to offer claimants the opportunity to clarify any apparent contradiction or inconsistency was not evident in most interviews and appealhearings.

Overall, we have found that there is a persistent culture of disbelief affecting all aspects of SOGI claims, resulting in negative credibility assessments for many of our participants. In Germany, for example, the BAMF sometimes doubts the claimant’s ethnic origin or nationality without good cause (Ham). We also heard about the BAMF disbelieving that a claimant’s landlady had an extra key of the apartment and was thus able to enter the apartment and find the claimant having sexual intercourse with a same-sex partner (decision regarding participant DE16 in Held 2018). Similarly, the BAMF was unable to believe that a claimant distributed flyers regarding SOGI matters despite the danger that entailed (Veronica and Julia). This culture of disbelief permeates German asylum adjudicators’ assessment of credibility, all the way up to appeal courts:

We have an advantage over the Federal Office: we already have a narrative, namely the narrative of the Federal Office, which has been produced relatively short after arrival [of the claimant]. And the probability that this [narrative] is true, of course, is greater, and it is not uncommon for maybe one [claimant] or other to come up with something during their time here in Germany to increase their chances. One may hear: “Oh, here, I have been recognised with this and that story. Then try it”. So, the falsest thing you can do. Then you do not believe anything anymore, but that’s the right thing to do (Oscar, judge, Germany).

In Italy too, some of our participants have suggested that a culture of disbelief affects the asylum system (focus group no. 4, northern Italy; focus group no. 5, southern Italy), although seemingly to a lesser extent than in other countries. This may increase following the 2018 reform. On many occasions, judges have reversed negative decisions by territorial commissions where claimants have, according to judges, provided a coherent account that was factually in line with the information collected by the tribunal about claimants’ countries of origin.Footnote 75 However, in light of the limited scope for appeals in the reformed Italian asylum system (Chaps. 4 and 6), SOGI claimants will inevitably suffer without the opportunity to establish their credibility in person before a judge (Palermo 2018). The non-verbal aspects of interviews are often lost in audio and video recordings, detracting from the authenticity of the account and negatively affecting the credibility assessment (Puumala and Ylikomi 2017).

In the UK, too, it is clear that a ‘culture of disbelief’ still harms SOGI claimants, as pointed out by several NGO participants:

And what they [Home Office] tend to do is start off with a great deal of scepticism, and refuse on the basis that the person hasn’t provided information or details even when they don’t ask for the details (…) The general things [to refuse a claim] would be the same, “we don’t believe you because…”, well the thing is because of anything. (…) they pick on very small parts of the interview, ignore the rest of the interview, they pick on one or two lines, or the standard one (…) is “too vague” and “too inconsistent”, without defining what the vagueness or the inconsistency was (Denise and Umar, legal advisors).

Chloe, an NGO worker, also said: ‘I have never worked with a gay asylum seeker who has been granted it [asylum] and had their sexuality not been disputed by the Home Office’. Yet another NGO participant believed that a ‘fundamental problem is that the asylum seeker is routinely treated as a liar (…) [and there are] lengthy interviews which seem intended to catch them out’ (S130, NGO volunteer). Asylum claimants made the same assessment:

They believed one thing, that I am from Bangladesh, I came here in 2009, because I came in legally with passport. Apart from this, they said I am pretending to be gay, the social media, this chatting I am doing, the copy they had, “it doesn’t make any proof that he is gay, anybody can do this”. Then Helen Bamber [Foundation] report[ed] the scars I had when I was in Bangladesh, [but Home Office argued that] it could [be] from a crime, maybe he did had fight with someone, this kind of, the beating is not about, could be sexuality. And, I mean, they tried to make everything that I am lying. And, it really drove me, pushed me to the edge. That I almost lost hope (Lutfor).

The interview started from 11 until 6.30 in the evening. (…) Then, when the decision came, they didn’t believe anything. None of the things that I said they believed. Not even one. I don’t know how many questions I had, I think I had 300 and something questions, none of them [were believed], they just believed that I am from Zimbabwe. The rest, nothing (Meggs, focus group no. 1, Manchester).

Bisexual people claiming asylum are particularly likely to be disbelieved:

Bisexuals, forget it. It is so difficult for a bisexual to prove they are bisexual. I think that is the hardest category. It is not just about proving it. Say it is a bisexual male and they have had a relationship with a woman, it will be, “You are not bisexual because you had a relationship with a woman.” I think that is the definition of bisexual! There is a real culture of disbelief with bisexuals generally, which manifests itself in the system (Allan, lawyer).

A case in point is that of Orashia Edwards, a bisexual Jamaican man, who spent three and a half years battling attempts of the Home Office to deport him to Jamaica and was detained a number of times, after authorities claimed he was heterosexual and had just been ‘experimenting’ with men (Duffy 2018). Another claimant was told by the Home Office barrister: ‘You can’t be a heterosexual 1 day and a lesbian the next day. Just as you can’t change your race’ (Dugan 2015). As a leading barrister in SOGI appeals stated: ‘The Home Office has just about understood there’s such a thing as a gayidentity, but just doesn’t understand there’s a bisexualidentity’ (Allan Briddock, quoted in Morgan 2018). To avoid scepticism on the part of decision-makers, it is not surprising that some bisexual individuals misrepresent themselves as gay or lesbian (Khan 2016, p. 172).

The Home Office sometimes depicts claimants as plotting their asylum claim strategy years ahead of time, in a way that appears far-fetched under any circumstance: Diamond saw his asylum claim refused by the Home Office, which discredited his claim to be HIV positive as a ploy to claim asylum on sexual orientationgrounds at a later date.

At the end of the day, some are left feeling at an impasse:

it is very much down to “damned if you do, damned if you don’t”. “Why didn’t you have a girlfriend, why did you, how could you now have a girlfriend when it is so dangerous” (…) which then damages the credibility of the whole of the case (Amelia, NGO worker).

The problems with credibility assessment in SOGI claims are pervasive across all countries under comparison. This is also the conclusion reached by European-level NGO workers and policy-makers. The anger and frustration of not being believed, especially in relation to an aspect of someone’s identity that is likely to be so important to SOGI claimants, is enormous:

No [they didn’t believe me], then how can I? Should I go and put my ass, they fuck my ass to prove that I am gay? That’s the question they said, “No, you have to prove us that you are gay”. Can I get my boyfriend and go and have sex in front of the court for them to know that I am gay? If they want that, then I will do it (Amis, focus group no. 2, Bavaria, Germany).

you’re asking me deep, deep question, which you expect me to answer. And you are asking me irrelevant dates. I told you I’m running from my country, and you’re asking me dates. So you expect me running, I’m sick on the way, I spent, in fact I witness here, you are expecting me to answer the questions I ought to forget. And then you determine which that if I’m right or I’m qualified to get your visa or not, your documents, that is bullshit, it’s wrong. Forgive me for using that word, it’s very, very wrong, it’s not good. You cannot assess a man or a woman just by looking at the person and asking the person a question based on a piece of paper (Nice Guy, focus group no. 1, northern Italy).

Expectations regarding the narrative required from SOGI claimants thus need to change: bearing in mind how differently SOGI is legally regulated and socially experienced throughout the world, European decision-makers need to stop neglecting the specificities of countries of origin, go beyond a Euro-centric lens of what ‘homosexuality’ means and be open to different narratives. As Dina Nayeri (2019, p. 233) puts it, at the end of the day:

[e]very true story has strangeness, things that can only happen to those people at that time – the unbiased listen for it, trying to imagine an unknown world. But the biased look only for familiar oddities, the ones that match and validate their own story.

Nor should one overlook the discriminatory and often demeaning nature of this intensive probing of individuals’ SOGI, a probing that is unimaginable in relation to heterosexual and cis-gendered asylum claimants, and which would be seen as highly offensive and inappropriate outside the asylum context:

I do not go to a judge and say, “Well, I do not think you’re heterosexual. Prove it to me!”. “Yes, I have two children and built a house and have a German shepherd dog.” “Oh, well, that’s not the standard now.” “What do you expect, then?” It could be like that (Noah, NGO social worker, Germany).

Until a social and cultural revolution of sorts takes place in asylum adjudicators’ minds, it will very often be the case that:

[t]he law may have adapted, but the nuances of coming out haven’t sunk in for the individual asylum officers. Until they do, you can’t be a quiet, bookish lesbian. Forget about being questioning, bi, celibate, heartbroken and not in the mood for new love, culturally beaten down or too afraid to act. Every gay person has to be a flamboyant scene-kid, out at clubs and fashion shows and on Grindr texting strangers at a nightclub (Nayeri 2019, p. 252).

The lack of belief in stories that do not fit asylum adjudicators’ conceptions of what an LGBTIQ+ person is, reflects the homonormativity that permeates the European legal and political institutions, in general, and asylum systems in particular (Duggan 2002). In the process, we inflict violence on SOGI asylum claimants, and the principle of the benefit of the doubt and the fairness of the European asylum system are shredded to pieces.

6 Outcomes of the RSD Process and What Lays beyond SOGI – Through an Intersectional Lens

In light of the experiences of claimants described in Chap. 5 and the analysis above, refugee status or, at least, some form of international protection would seem the only legally appropriate and humane decision in many SOGI asylum applications. Yet, SOGI claimants receive international protection in a relatively small number of cases and, even then, are often not given full refugee status, depriving them of the degree of permanency needed to move on with their lives. According to our survey with SOGI claimants, claimants see their claims rejected because the decision-maker does not believe they were persecuted or at risk of persecution in their country of origin (40%), the decision-maker does not believe in the claimants’ stated SOGI (32%), there is allegedly an ‘internal relocation alternative’ (14%) and claimants can return and be safe by living ‘discreetely’ (9%).

In Germany, refugee status is often granted to SOGI claimants when claims are found to be credible. Yet, there are cases, such as Ibrahim’s, where although the claimant presents a credible claim, the authorities only grant subsidiary protection. Moreover, in the case of Syrian claimants, authorities generally only grant subsidiary protection if they only claim to be escaping conflict (ECRE, AIDA & Asyl und Migration 2019, p. 65). Syrian nationals who are members of SOGI minorities may not mention their SOGI during the asylum process to secure the speedy recognition of some form of international protection and avoid disclosing their SOGI, as in the case of Fares. That has as a consequence only being granted subsidiary protection instead of refugee status, despite the SOGI of those claimants putting them at risk of individual persecution.

In Italy, as well, some judicial decision-makers tend to either confirm administrative decisions denying SOGI claimants asylum,Footnote 76 or grant a lesser form of international protection than refugee status, such as subsidiary protection or humanitarian protection.Footnote 77 This has led one decision-maker to talk of some members of territorial commissions seeing international protection as a sort of ‘reward’, which should be given only rarely, resulting in more decisions of humanitarian protection than subsidiary protection or refugee status (Maria Grazia, decision-maker). A lawyer also explained that decision-makers sometimes see humanitarian protection as a compromise in cases of doubt about the claimant’s credibility (Mara). This trend seems to depend both on the (disputable) understanding of the different forms of international protection (for example, from assertions we heard from a participant judge), but also on the human right at stake. In the case of a Ukrainian citizen who could not enjoy family life with her partner because of social attitudes, the Tribunal of Brescia only granted her humanitarian protection. The reason was based on the fact that the claimant was deprived of the enjoyment of the right to respect for family life, which is not a non-derogable right for the purpose of granting refugee status, and the right to family life could be secured through the issuance of a humanitarian permit.Footnote 78 When it comes to gender identity, although international protection is generally granted, the recognition of refugee status can also constitute a challenge. For example, in a 2011 case related to gender identity, the claimant was granted humanitarian protection, although a careful reading of the case could have led to the recognition of the status of refugee.Footnote 79

In the UK, the number of refused SOGI asylum claims is also high and there are regularly internet and social media campaigns – some of which appear to be successful – to prevent deportation of SOGI asylum claimants on charter flights, such as Jimmy Kyesswa, whose deportation to Uganda was postponed in December 2016 following an online petition (Butterworth 2016). It has been suggested that gender identity applications tend to be more successful than sexual orientation applications (Berg and Millbank 2013). This likely higher acceptance rate is attributed to the fact that ‘trans applicants were accepted as credible when their bodies conformed to a visual typology and their narratives to accepted western tropes of gender dysphoria’ – that is to say, when decision-makers could identify the classic transsexual ‘wrong body’ narrative (Berg and Millbank 2013, pp. 128–129).

The intersectional and feminist approaches informing our analysis make it clear, however, that decisions on SOGI claims are about much more than the claimants’ SOGI. Our survey with people who work with or support SOGI claimants confirmed that, besides their SOGI, SOGI claimants’ country of origin (62%), cultural background (53%), demeanour (clothes and mannerisms) (49%), educational background (46%), religion (45%), and gender (44%) are key factors in decision-making. These, along other factors such as socio-economic status, age and disability, are overlooked or subsumed by a focus on SOGI. Many decisions refusing international protection to SOGI claimants reflect a poor understanding of the intersectional nature of the harm suffered and feared by these claimants. This problem can be seen, for instance, in the failure to recognise how sexual orientation and gender come together for women claiming international protection. In the UK, for example, in the case of a 19-year-old Belarusian lesbian woman, gang raped along with her girlfriend, the Tribunal judge in the case said that ‘[t]he appellant appears to have been targeted only because of her sex and vulnerability rather than her sexuality’ (reported in UKLGIG 2013, p. 26). Gender also affects the kinds of harm experienced, with research suggesting that lesbian and bisexual female asylum claimants experience the most severe psychological harm and UK Home Office guidance not adequately recognising that (Khan 2016, p. 127). Several women claimants we interviewed in the UK had experienced gender-based violence, such as rape and forced marriage, and it was not clear that these intersections were adequately recognised by decision-makers. In the German context, as well, we were told that:

she [lesbian claimant] has to be outed first as a woman, to understand her rights as a woman, to be first [able] to speak about her sexuality. (…) They have these issues of not being taken seriously, or the fear of speaking about their sexuality (Ibrahim).

Socio-economic status is another significant factor that SOGI asylum adjudication needs to consider, particularly in the way harm is risked and one’s SOGI identity is experienced:

[In Pakistan] Some people say that they have relatives in the police and politics and the government and they are particularly worried because not only will they be known by everybody, but their family has got this extra kind of concern about honour and one person said to me “my parents wouldn’t have any fear about killing somebody, getting rid of somebody and no one would know, because of their status” (Debbie, NGO volunteer, UK).

Socio-economic status is often intertwined with one’s educational level:

Class and cultural and educational background all affect how able an applicant is to provide the kind of self-reflective narrative the Home Office is looking for. They also play a part in stereotypes. People from more conservative nations and ethnicities appear to face more scepticism from the authorities, and people from poorer nations and ethnicities are more likely to be labelled “economic migrants” (S4, lawyer, UK).

Some decision-makers willingly recognise that claimants’ educational background has an impact on the quality and cogency of their testimony – for example, in relation to claimants’ ability to speak about their journey of sexual awakening – thus influencing their credibility:

the tools, the culture, the capacity, even the school background is fundamental [to be able to establish one’s credibility]. A person who has never studied, who has always been a shepherd since he was ten, will have difficulty talking about himself because he has never done it before (Titti, decision-maker, Italy).

This consciousness, however, seems to be insufficiently reflected across all SOGI asylum decisions. That is also clear at appeal level, with ‘middle class’, articulate claimants being able to present their cases much more cogently and confidently than claimants from more disadvantaged socio-economic backgrounds with lower literacy (Court observation, North Rhine-Westphalia, 2019; Court observation, Hesse, 2019). Elias, a lawyer in Germany, also asserted that ‘we often deal with people who have little education. That means they do not know how to spontaneously respond to criticism’. One judge in the UK also suggested that appeals may be more successful when claimants have a better educational background:

I think in general, the sort of people we would tend to have… before us will by and large have some level of education and sophistication and so normally will perhaps with a little bit of help… be able to open up and just explain what it is (Adrian, judge, UK).

Less cognitively able gay men may find it more difficult to articulate their case in terms that resonate with European decision-makers than other SOGI claimants. An example of this is a gay claimant in the UK who was denied asylum because the Home Office did not believe that someone with learning difficulties could be gay, finding that ‘you have failed to show that you are a homosexual man’ (Strudwick 2018).

Educational achievement is often intertwined with social class, religious, national and cultural backgrounds in inextricable ways, as legal representatives are aware:

You cannot clarify being LGBTI as a ground for persecution without mentioning racism and class issues. Yes? So, if a gay man, White, academic, comes and could talk concretely about what happened to him, then he gets a handshake after that and two days later he has his positive decision. If a Cameroonian who has been to school for four years comes from somewhere, you do not believe him. Since he cannot talk about it at all, because he cannot express it at all. He has experienced an environment that is (…) he has a very different kind of repression, that is, a very different inner [life] and outer community. No one is able to understand that. He talks in a quite different manner. And he does not even know how to say “how I realised that”, yes? (Barbara, lawyer, Germany).

If one has done nothing but two years of Koranic school in a poor country, he only answers the questions that are asked and says things that seem miserable… This is, however, something that I have noticed over the years: wealth and oral ability count for a lot, those who are able to speak and those who are not (Livio, lawyer, Italy).

Educational attainment is also, however, sometimes used perniciously to undermine credibility:

all they could say to me was “well, you seem like an educated person”, but what does my education have to do with knowing legal things? I have never been in a situation where I needed a lawyer even back home, so all of this is new, I am sure even somebody who had a PhD in that situation, you can’t think straight, you are confused, you don’t even know what is going to happen to you (Stephina, UK).

Similarly, educational attainment can be used to deny risk of persecution: ‘And after he [interviewer] told me “you seem educated. An educated woman in Africa can survive anywhere”’ (Julian, focus group no. 5, Bavaria, Germany).

Strong individual and community religious beliefs also often play a role in the nature and virulence of persecution and lack of protection by public authorities, in particular if the claimant’s family holds a position of responsibility in the religious community (Siri, Italy). More generally, socio-economic factors such as education, class and caste may intersect with religion and SOGI to render places more or less safe. Religion and ethnicity also intersect with gender, relevant to understanding why some women of a certain religion may find it difficult to talk about their SOGI if the interpreter or legal representative is also of the same religion (Jivraj et al. 2003, para. 8.8; Chap. 6).

Although generally neglected, age may also play a role in SOGI claims, with older claimants potentially being more experienced and self-confident in their dealings with asylum adjudicators, or being more resilient and resourceful during the asylum process. Thomas, an NGO volunteer in Germany, told us, for example, of a 20-year old claimant who felt intimidated and was ‘systematically challenged’ during an appeal hearing that lasted for three and a half hours, to the point of speaking lower and lower and having to be told to speak louder during the cross-examination. Conversely, older age may also decrease a claimant’s credibility, with a survey respondent stating that the ‘Home Office [is] less likely to believe someone is gay if older for some reason’ (S155, solicitor, UK). This was confirmed by another participant, who stated:

when I was in court, I was about 35 thereabout or so, “oh, you can go back to Jamaica because you are getting old now, you are up in age, and you are single, so you won’t need a partner” (SGW, focus group no. 4, London, UK).

‘Older’ claimants – especially women – are thus expected to return to their home countries and live alone because no-one will question their lack of children (as they could have grown up) or a partner (as the claimant could be widowed or separated). Youth may also benefit claimants in other ways, albeit by relying on equally inappropriate stereotypes. For example, in a case involving a Nigerian gay claimant in Italy, the territorial commission made a negative assessment of credibility on the basis that the claimant, amongst other things, had offered a ‘generic’ testimony and focused on the physical aspects of his relationships. The judicial instance of appeal rejected the commission’s stereotypical assumption that relationships are about emotional engagement. Instead, the Tribunal used the stereotype that younger people are ‘understandably’ more focused on sex than emotions, as if young people value sexual activities more than older people.Footnote 80

Yet another often neglected factor in this field is disability. A claimant’s disability may be misunderstood to the point of hurting their credibility and, consequently, the RSD process outcome:

They think that we people who are moving with crutches, who are disabled, we cannot move. They do not understand how I came to Europe from Africa, they think that we disabled people do not move, but there are people who have empathy and who help. (…) I can move, and somebody helped me to get my ticket to get here, I did not come by foot (Betty, Germany).

An understanding of the diversity within SOGI claims, but also of the intersectional nature of identity, is critical to the development of an asylum system that is responsive to claimants’ experiences, rather than one that imposes a single model of SOGI identity based on Western stereotypes. Genderdifferences must be recognised to understand the different experiences of male-to-female and female-to-male transgender claimants, and a variety of religious, ethnic, social, educational and cultural differences need to become ingrained in the minds of asylum adjudicators if we are to move towards a more socio-culturally sensitive, appropriate and fair system.

7 Concluding Remarks: Assessing the Assessor

Much has been written about SOGI asylum legal adjudication. Yet, some crucial issues have been the object of only limited research or, despite having been discussed widely, remain under-theorised or inadequately explored. In this chapter, we have scrutinised matters relating to: the failure to consider Refugee Conventiongrounds other than PSG for SOGI minorities, despite the difficulty some SOGI claimants face in ‘fitting’ into a PSG; inconsistencies in the consideration of criminalisation of same-sex acts and the internal relocation alternative; the persistence of the ‘discretion argument’ in more subtle forms than previously; the standard of proof applied in violation of the principle of the benefit of the doubt; the failure to apply the burden of proof according to UNHCR guidance; the continuing culture of disbelief; and the ongoing inadequacy of credibility assessment. Trust in the SOGI asylum decision-making systems across Europe has been repeatedly questioned in this research. Our fieldwork brought to light good reasons to doubt the quality and fitness of current systems. Some of our participants in Germany went so far as describing the system as ‘horrible’ (Fares, Germany), ‘unfair’, a ‘betting game’ and a ‘lottery’ (focus group no. 1, Hesse, Germany). Others call it ‘absurd’:

So there are such things as “It is well known that in Uganda gay men are being persecuted and threatened with jail, but that, it does not contradict that the refugee [claimant] settles in another part of the country.” Although there is police threat, so in his case and although his family is after him and Uganda is not USA or something, Uganda is Uganda. So completely absurd (Thomas, NGO volunteer, Germany).

Moreover, political pressures and limited resources mean that decision-makers often lack the capacity to make decisions sufficiently in light of claimants’ individual circumstances. For decision-makers, it is also a daunting task to deal with the amount and nature of claims lodged. Emilia, a judge in Germany, described deciding on SOGI asylum claims as ‘poking in the fog’. As lawyers told us: ‘there is also a lot of copy and paste. (…) we had thousands of grotesquely poorly written, template-decisions in recent years. (…) [false positives are] a joke compared to the whole false negatives [issue]’ (Elias, lawyer, Germany). This was confirmed by claimants themselves: ‘Even the grounds they gave us on why you’re rejected are the same for 15 people’ (Julian, focus group no. 5, Bavaria, Germany).

Ostensibly, the Italian system appears to be the most ‘friendly’ towards SOGI asylum claimants, compared to Germany and the UK, based on the facts that the ‘alternative approach’ is adopted in relation to the notion of PSG, criminalisation of same-sex conduct is considered persecution in itself, and internal relocation is not considered in asylum claims. The overall picture is, however, much more complex. From a legal perspective, the latest Italian reforms (Chaps. 4 and 6) have introduced elements that are likely to be highly detrimental for SOGI asylum claimants, in particular the removal of a second degree of appeal and the replacement of a hearing in person with a video-recorded administrative interview. Furthermore, the broader SOGI legal framework and social environment in Italy is arguably far less welcoming than in most other EU countries.

Nonetheless, whichever country is dealing with a SOGI claim, there are risks for claimants. Often there is also the sense that ‘in becoming an asylum officer, you relinquish all imagination and wonder’ (Nayeri 2019, p. 158). Even worse, there is a fear that decision-makers can – if they so wish – distort the evidence submitted in order to deny international protection:

that is the crux of the matter, because people who come from Georgia are rarely doubted about being queer. For people who come from Cameroon, however, it is much more often doubted that they are queer. And of course, the impression I have is that, in Georgia, there is no persecution, no prosecution, even if there is massive social [discrimination]. So one can calmly say, “the person is homosexual, but there is no persecution.” On the other hand, in Cameroon, the people have to explain their sexuality very… yes… credibly, so to speak (Sabrina, NGO worker, Germany).

Elias, a lawyer in Germany, confirmed this by saying that ‘[i]f a judge really wants to discredit a client, then they succeed’. This happens both at administrative and judicial levels, as reported to us in Germany: ‘The whole [judicial] hearing was about looking for reasons to reject’ (Thomas, NGO volunteer).

Although we found no evidence of this, the high levels of refusals make some NGOs and claimants believe decision-makers are given quotas for acceptance and refusal rates (Sofia and Emma, NGO workers, Germany; S130, NGO volunteer, UK). Even if that may not be the case, it seems that decision-makers search for the weakest element of the claim (PSG, persecution, credibility, etc.) and reject the claim on that basis. As explained by Kadir, an NGO worker in Germany, the question decision-makers ask themselves is not whether they should grant international protection, but whether there is any groundsnot to grant international protection. For this purpose, we present a hypothetical ‘charter of denial’. A cynical view of the system – collecting all the flawed aspects of decision-making explored in this chapter and applied in different ways to each country – might characterise the worst kind of decision-making mind-set in the following way:

  1. (a)

    You are not who you say you are [gay/lesbian/bisexual/trans/queer/etc.] and/or your testimony is not credible, because [not enough evidence, claim submitted a long time after arrival, evidence submitted is staged/self-serving, etc.];

  2. (b)

    [If a religion applies] You cannot be LGBTIQ+ because your religion frowns upon such identities/behaviours;

  3. (c)

    Even if you are who you say you are, you can go back to your country because there is no law affecting you;

  4. (d)

    Even if there is a law criminalising same-sex acts (or LGBTIQ+ identities / behaviours), it is not enforced or not enforced systematically;

  5. (e)

    Even if the law is enforced, you would be ‘naturally discreet’ or ‘discreet’ through your own ‘choice’, so you would not run any risk upon return;

  6. (f)

    Even if you were to run a risk, you can always relocate to another part of the country to avoid it;

  7. (g)

    Even if the country may be dangerous for SOGI minorities, you lied about x or were inconsistent about y, so we cannot believe you in general;

  8. (h)


In short, when there is the will to discredit a claim, there is a way. As Fernandez puts it, ‘even when the credibility of both identity and persecution is reasonably established, immigration officials are often inconsistent in their interpretation of case law and can be surprisingly inventive in their contorted counter-explanations justifying the denial of eligibility for asylum’ (Fernandez 2017, p. 205).

SOGI asylum thus becomes a striking illustration of the broader issue of the epistemic injustice produced by asylum systems: asylum systems are designed and operationalised in a way that privileges adjudicators’ epistemic resources over claimants’ resources, in order to legitimise the prerogative decision-makers have to ‘arbitrarily and ambiguously misinterpret asylum applicants’ experiences, cultures, and countries’ – the so-called ‘institutional comfort’ enjoyed by decision-makers (Sertler 2018, p. 3). This is particularly evident in testimonial injustice (which includes denying claimants’ experiences, ignoring available information, and deciding which information/criteria to use) and contributory injustice (which consists in knowingly and voluntarily employing prejudiced hermeneutical resources to undermine the epistemic agency of the claimants) (Sertler 2018, pp. 2 and 16). All these phenomena apply to SOGI asylum, as seen in this chapter, and the result is an excessive and inappropriate use of autonomy in decision-making by asylum adjudicators.

It may be beyond the power of asylum law and practice to completely overcome such testimonial and contributory injustices in SOGI claims. The task may simply be too complex and insurmountable in size and nature. The economic, resource and logistic pressures on current asylum systems are recognisably very significant. And they are not likely to diminish to any significant extent, so asylum adjudicators need to be supported in developing the necessary skills and competences that will allow them to offer decisions of better – even if not perfect – quality, more aligned with our theoretical and analytical underpinnings (Chap. 3), avoiding to a great extent the pitfalls discussed in this chapter. Recommendations to this effect will be explored in Chap. 11.

More generally, a claimant’s life is not reduced to ‘obtaining papers’, no matter how important those ‘papers’ may be. In fact, for many LGBTIQ+ people we met during our fieldwork, their accommodation (Chap. 8), health, education and employment (Chap. 9) were greater priorities. We now turn to those areas of concern.