This blog is authored by Ambika Gupta from the Vivekananda institute of professional studies.
The LGBT+ community has always faced discrimination and marginalization in numerous socioeconomic domains, but 'queer migration' owing to persecution based on their identification is a relatively new issue. Throughout the asylum application procedure, LGBT+ applicants confront a number of legal, societal, and procedural challenges. Generally, the experiences of LGBT+ people are often homogenized, and assessing authorities neglect to consider aspects like ethnicity, religion, and nationality, which all have a role in the persecution they encounter. A disproportionate emphasis is placed on demonstrating their sexual/gender identity, rather than their historical persecution, highlighting the necessity of paying particular consideration to concerns of credibility. The 1951 Convention Relating to the Status of Refugees (Convention) grants refugees a variety of rights; yet, the actual situation of LGBT+ refugees in host nations is somewhat distinct. They endure prejudice whether seeking housing, work, or medical support, among other things. They are doubly stigmatized because of their sexual orientation and gender identity (SOGI) along with their refugee status, and therefore deprivation of their socioeconomic rights is tantamount to a breach of their basic human rights. Such a refusal undermines the fundamental goal of refugee law, which is to provide refugees with alternative protection. To underline the necessity for structural reforms in their asylum regimes, the author has examined reports of LGBT+ migrants. Due to their basic differences from and vulnerability compared to typical refugees, special measures are required to protect their interests.
SOGI as a Ground for Persecution
Although there is no agreed description of persecution, the UNHCR Guidelines(Guidelines) have specified the number of actions that constitute persecution for the purpose of awarding refuge, including violence, incarceration, torture, and other serious human and civil rights abuses. Unfortunately, according to the Guidelines, persecution in the past is not a criterion for receiving refuge. However, as argued by Aaron Sussman, there are specific patterns or practices of discrimination based on SOGI in a nation, and the existence of these elements fosters an environment in which LGBT+ people are more prone to experience discrimination.
Theoretically, refugees and asylum claimants are empowered with fundamental, non-discriminatory human rights. A particular social group (PSG) has the right to apply for asylum when they are being persecuted abroad, including where such persecution is motivated by their SOGI, according to Yogyakarta Principle 23. In practice, for the LGBT+ community, these rights are consistently abused in the form of rapes, torture, arbitrary incarceration, discrimination in access to public facilities, etc.
Interestingly, there have been many interpretations of the word PSG in the past; the "immutable characteristic" notion is the most prominent. The Matter of Toboso Alfonso, in which a gay asylum seeker was given asylum because he was being persecuted because of his orientation, was the initial case to acknowledge homosexuality as an innate feature. In Amalfi v. Ashcroft, the court confirmed that SOGI persecution might be carried out on the ground of an imputed or observed orientation. That brings up the issue of whether it is reasonable to expect someone to hide their identity or to be less forthcoming than they would want in order to avoid being targeted or harassed. In this context, the UK Supreme Court in HJ(Iran) and HT (Cameroon) v. Secretary of State for the Home Department, resoundingly ruled that LGBT+ people should not be required to hide their individuality in order to flee or avert persecution in their homeland because doing so would violate cardinal tenets of international human rights, including privacy, dignity, and equality.
Analyzing the Refugee Status Determination (RSD) Process
Compared to other migrants, LGBT+ refugees and asylum seekers experience significant difficulties during RSD. Profound social stereotypes make it challenging to properly examine and evaluate asylum seekers, even though they are given rights under the Convention. The applicant's credibility and the supporting evidence are the two considerations the RSD employs when assessing the claims. A thorough examination of the RSD procedure reveals its terrible truth.
Credibility
Regarding the issue of credibility, the Guidelines specify that a considerate and individualized system should be used to evaluate the applicant's claim. Though there is no set procedure to establish the validity of the applicant's SOGI claim, the Guidelines suggest plausible markers; for example, if the applicant describes himself as LGBT+ or has "come out" to others. These signs are merely helpful in determining the veracity of the claim; they are not decisive. The issue here, however, is that demonstrating one's SOGI is given undue weight compared to establishing the persecution one experienced as a result of their SOGI.
First, the candidates depart their native nation owing to persecution from their group or state, making them traumatized and defenseless. Mental trauma, as well as intrinsic prejudice, have an impact on the interview, rendering the candidate uncomfortable or incapable of accurately retelling the experience, resulting in discrepancies and obfuscations in the facts presented.
Second, while the Guidelines specify that the applicant's statement is adequate substantiation of his SOGI, in practice the officials do not follow this rule. When it comes to assertions predicated on SOGI, there is an attitude of skepticism. Due to their lack of belief, officers now often request corroborating proof from applicants in addition to their statement, which applicants are not always able to provide because, like other asylum seekers, they rarely have the freedom to compile documentation prior to leaving their homeland.
Thirdly, the authorities ultimately decide the RSD of the claim, and they do so with preconceived notions and assumptions in mind. The officials frequently conduct unethical and lewd interrogations. As the applicant's claim in the In Re Soto Vega case was dismissed since he did not exhibit stereotypically homosexual outward traits, it becomes pertinent in this respect.
Evidence
On the evidential front, the Guidelines declare unequivocally that the applicant's testimony should be considered primary evidence, as they frequently experience harassment from their community. Medical evidence such as sex-change procedures, hormone therapies, and so on may be presented as corroborative evidence to support the applicant's claim. Although the Guidelines expressly forbid any sort of medical examination to determine the applicant's sexuality, many nations use penile and vaginal plethysmography. Such procedures not only violate human dignity, but they also lack scientific justification.
Post Status Determination: An Analysis
Besides the RSD procedure, LGBT+ asylum seekers experience bigotry because of their sexuality. They remain among the most marginalized segments in the community even after receiving refugee protection in the host nation. The rehabilitation procedure is also quite difficult for them. Inherent homophobia and transphobia, verification problems, and intersectional repression all add to the difficulty of providing them with sufficient safeguards and lead to the deprivation of their human rights. In order to research the treatment of LGBT+ refugees, the author analyzed the asylum administrations of Turkey, Canada, and the European Union. These nations vary in their acceptance of the LGBT+ community and in their economic growth, providing a better knowledge of the standard of living of LGBT+ refugees following the RSD procedure. LGBT+ refugees are extremely ostracised, with little access to jobs, healthcare, housing, and monetary support. They are publicly secluded and frequently confronted with physical, psychological, and sexual abuse, with no legal redress. As a result, even in countries that appear to be LGBT+ inclusive, there is a need to build LGBT+-friendly environments.
Some Final Reflections: Queering the System
Considering the intimate relationship between refugee law and human rights, it is presently necessary to design a comprehensive strategy to address the refugee issue that fully recognizes the fundamental human rights of refugees. While we must fight relentlessly to improve the preservation of LGBT+ people's cardinal rights, we must equally be aware of and cognizant of the truth that occasionally they have no alternative except to migrate and find refuge beyond their own nations.
But regrettably, LGBT+ refugees and asylum seekers also encounter a variety of challenges. In the refugee mechanism, they are most susceptible to prejudice, harassment, and sexual assault; nonetheless, they are accorded the lowest attention. Because the claims of LGBT+ refugees and asylum seekers present specific obstacles, they demand distinct measures to protect their rights. As a result, the authors present specific proposals to make the refugee process more diverse and responsive to LGBT+ refugees' challenges and requirements.
The Convention ought to have the signatures of every nation. To guarantee the security of LGBT+ refugees, they should incorporate the Convention's principles into their national legislation.
The prevailing refugee regulations must be re-examined in order to develop a tailored strategy for each individual of the LGBT+ group.
Every interrogating officer should be required to complete a training course that acquaints them with topics such as sexual orientation.
In order to facilitate assimilation into the community, LGBT+ refugees should be transferred to areas with native LGBT+ groups that are welcoming of them.
The urgency of taking these actions is increased by the fact that LGBT+ asylum seekers are extremely vulnerable to losing their security, which might have catastrophic effects on their dignity.