International and European Law: Public international law
MASTER THESIS
SEXUAL ORIENTATION TRAPPED BETWEEN
PERCEPTABILITY AND IMMUTABILITY:
THE LIMITS OF OBJECTIFICATION IN LGB
ASYLUM PROCEDURES
Edith CHAMBRIER-LE CORRE
July 2016
Supervised by Maarten den Heijer
ABSTRACT
Refugee Status can be obtained if the claimant as a “well-founded fear of persecution” based on one of the five grounds of the 1951 Convention relating to the Status of Refugees, namely race, religion, and nationality, membership of a particular social group or political opinion. The vagueness of the signification of “membership of a particular social group” has led to different interpretations of the term in the jurisprudence of national courts. The main approaches of it are the protected characteristic approach and the social perception approach. Applying them to cases of well-founded fear of persecution on account of sexual orientation has developed criteria of immutability or perceptibility of sexual orientation: This is however particularly restrictive considering the subjective nature of sexual orientation. Those criteria are on-going views of sexual orientation. It has therefore also influence on the persecution and credibility assessment in refugee status determination. This paper argues that there is a need to shift away from an objective assessment of sexual orientation as either immutable or perceivable. It is moreover especially important to access credibility subjectively considering the fact that it is the cornerstone of the refugee status determination.
TABLE OF CONTENTS
1. Limits of considering sexual orientation as innate ... 7
1.1.
Particular social group: the protected characteristics approach ... 7
1.2.
Innateness and immutability in the credibility assessment procedure ... 9
1.2.1. Previous methods of credibility assessment: a picture of on-going vision of sexual orientation as fixed... 10
1.2.2. Current methods of assessing credibility: presumption of sexual orientation as fixed 13
2. Limits of considering sexual orientation as perceivable ... 17
2.1.
Particular social group: the social perception approach ... 17
2.2.
Perceptibility in the assessment of well-founded fear of persecution: the
discretion requirement ... 19
2.3.
Perceptibility in the credibility assessment: the use of western
stereotypes ... 21
3. Shifting away from a binary vision of sexual orientation ... 24
3.1.
Gap of protection in the UNHCR alternative approach ... 24
3.2.
The difficulties of assessing persecution ... 28
3.3.
The subjective assessment of credibility ... 30
INTRODUCTION
In international law, the protection of refugees is governed by the 1951 Convention relating to the Status of Refugees1, often called the “1951 Convention”. It defines the concept of refugee, their rights under the Convention as well as the legal obligations of States. The article 1(A)(2) of the Convention considers a refugee as any person who, “owing to
well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.
Since a few years, a new issue seems to grow in the field of Refugee Law, namely asylum claims based on sexual orientation. In fact, it goes hand in hand with a general concern on sexual minorities. Homosexuality is still criminalized in 75 countries, and sentenced by death penalty in five of them.2 In the larger picture, sexual minorities are often the target of violence coming from the community, their family or even police officials. However, the drafters of the 1951 Convention hadn’t given a thought about this issue. In fact, the Convention is drafted after World War II in the wake of the Holocaust. The emphasis given at that time was to prevent a remake of the atrocities of World War II. It is easy to see that the grounds purported by the 1951 Convention definition are much influenced by the events that occurred during that time and wish to protect race, religion, nationality and political opinion, groups particularly persecuted during the war.
The last ground, “membership of a particular social group”, is often seen as a will of the legislator to create an open-list. However, nothing in the preparatory work of the Convention or anywhere else let us think that they had given a thought about the protection of Lesbian, Gay and Bisexuals (LGB) at that time.
In this paper, we are going to focus the analysis on asylum claims based on persecution on account of sexual orientation. Other groups like gender will not be included for the purpose of this research. In fact, in one of its guidance notes, the UNHCR choose to gather “refugee claims relating to sexual orientation and gender identity”3 together. However,
1
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations
2
Free & Equal, Fact Sheet- Criminalization, United nations for LGBT equality
3
UNHCR, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender
Identity, 21 November 2008
4
the LGB group raises some particular considerations and concerns peculiar to it. Those considerations and concerns will be the focus of this paper.
Moreover, we choose to analyze only homosexual’s asylum seekers, men and women, as well as bisexuals but not the traditional association “LGBT” (Lesbian, bisexual, gay and transsexual). In fact, we wish to exclude transsexuals from the analysis since we consider that transsexualism is about sexual identity and not sexual orientation, which raises different questions and concerns. However, an analysis on transsexual asylum claim will surely reveal some cross paths with the present analysis on LGB.
Lastly, we will analyze homosexual’s asylum claims for persecution based on membership of a particular social group. In fact, because of the absence of “sexual orientation” ground in the Convention, national courts have struggled in order to include this category into the definition of the Convention. While earlier cases have first attempted to include it on the basis of political opinion or religion4, it has become extremely rare in the past fifteen years. Their claims are now based on the fifth ground of the Convention namely, “membership of a
particular social group”.
The 1951 Convention’s definition of refugee raises different legal issues in the refugee status determination. For the purpose of this paper, we will analyze only three of them, namely “particular social group”, “well-founded fear of persecution” and credibility assessment. While those legal issues are distinguishable, they still remain particularly connected. In fact, one can hardly work without the others.
Homosexuals have been largely recognized as constituting a “particular social group” who may be persecuted on account of their sexual orientation. This has been the findings of the European Court of Justice in 2013 in the case X, Y, Z v Minister voor Immigratie en Asiel.5 The UNHCR also issued in its Guidelines that “States have recognized […] homosexuals, as
constituting a particular social group for the purposes of the 1951 Convention”.6 However, they still face considerable challenges in the assessment procedure of “well-founded fear of persecution” and credibility.
4
Tim SahliuBraimah, Divorcing Sexual Orientation from Religion and Politics: Utilizing the
Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims,
International Journal of Refugee Law, 2015, Vol. 27, No. 3, 481–497
5
CJEU, X, Y, Z v MinistervoorImmigratie en Asiel , C‑199/12 - C‑201/12, 7 November 2013
6
UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION: “Membership of a particular social
group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/02, 7 May 2002, §1
5
Those challenges are, among other things, based on a narrow vision of homosexuality and sexual orientation in general. Those visions are related to the interpretations made of “particular social group”. In fact, it is not anodyne if those interpretations of “particular social group” have some repercussion in the later assessment procedure of asylum claims based on sexual orientation. It can be argue that the grounds cited in the Convention, including membership of a particular social group, are at the root of the definition of a refugee. In fact, in the definition, well-founded fear of persecution has to be based on one of the five grounds of the Convention. Therefore, it can be argued that the grounds exist before the persecution arises. Particular social group being one of the grounds of the Convention, the reasoning applies in the same way. A quick analysis of French jurisprudences, for example, shows us that the judge will first evaluate the existence of “particular social group” before assessing the “well-founded fear of persecution”. Moreover, the credibility assessment cannot exist before the existence of the particular social group. In fact, membership to a group doesn’t exist when there is no group. It is thus important to understand how “particular social group” has been understood and interpreted by States because it is an indication of a vision of sexual orientation used by adjudicators in the refugee status determination. It has therefore influence on the credibility and persecution assessment.
However, the 1951 Convention doesn’t provide us with a definition of “membership of a
particular social group”. In fact, the UNHCR, in its Guidelines on international protection
about “membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugee7, recognizes that “membership of a particular social group is one of the five grounds enumerated in Article
1A(2) of the 1951 Convention relating to the Status of Refugees (“1951 Convention”). It is the ground with the least clarity and it is not defined by the 1951 Convention itself. It is being invoked with increasing frequency in refugee status determinations”. Thus, States had to
interpret this ground in their jurisprudence. The interpretation given to “membership of a
particular social group” by national jurisdictions has varied greatly. However, two main
interpretations have emerged from States’ jurisprudence: the “social perception approach” and the “protected characteristics approach”. The UNHCR offers us a definition of those two approaches based on a summary of those jurisprudences. According to the social perception approach, as defined by the UNHCR, “membership of a particular social group” exists when “a group shares a common characteristic which makes them a cognizable group or sets
7
UNHCR, Guidelines “Membership of a particular social group, see above 6.
6
themapart from society at large”.8 On the other side, the protected characteristics approach “examines whether a group is united by an immutable characteristic or by a characteristic
that is so fundamental to human dignity that a person should not be compelled to forsake it”.
According to the UNHCR, sex and thus sexual orientation fall within the immutable and innate characteristics.9
Thus, while homosexuals have been recognized in most countries as forming a “particular social group” in accordance with those two interpretations, two distinct visions of homosexuality emerged. On the one side, homosexuality and therefore sexual orientation is seen as innate and immutable, on the other side it is seen as something perceivable by society. Those narrow visions of homosexuality have an influence on the assessment of “well-founded fear of persecution” as well as “credibility”.
Therefore, the research question of this paper will be to evaluate the consequences of an innate and/or perceivable vision of sexual orientation on the LGB asylum claims.
The analysis will subsequently be directed towards the consequences on LGB asylum claims of an innate/immutable vision of homosexuality (1.) and of sexual orientation as a perceivable characteristic (2.). Lastly, we will analyze solutions proposed to tackle this issue (3.).
1. Limits of considering sexual orientation as innate
The protected characteristics approach has based its interpretation of particular social group on an innate and immutable vision of homosexuality (1.1.). It has a particular importance in the credibility assessment of LGB asylum seekers because every conception of sexual orientation as fixed is rejected (1.2.).
1.1. Particular social group: the protected characteristics approach
The protected characteristics approach focuses on “internal factors”, unlike the social perception approach merely focusing on “external factors”. In fact, the group is not defined by its perception by the surrounding society. It is based on a vision of homosexuality as innate and immutable. 8 Ibid. §7 9 Ibid. §6 7
The jurisprudence Matter of Acosta10 by the Board of Immigration Appeals (BIA) is leading in that matter. It defines the protected characteristics as “a common, immutable
characteristic, i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed”.11 This interpretation is coming from the “ejusdem generis” principle which means that the interpretation should get along with the other five grounds to determine Refugee Status.12 All of these grounds are based on immutable characteristics and therefore the BIA interprets “membership of a particular social group” as created on the same basis.
In the Ward Case13, the Supreme Court of Canada also upheld this interpretation. It held that according to the protected characteristics approach, there exist three possible categories that can form a particular social group:
(i) groups defined by an innate or unchangeable characteristic;
(ii) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(iii) groups associated by a former voluntary status, unalterable due to its historic permanence
Those categories have been further elaborated. It states: “The first category would embrace
individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person”.14
Thus, the protected characteristics approach excludes “groups defined by a characteristic
which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights”.15
10
Board of immigration Appeals (BIA), Matter of Acosta, A-24159781, 1 march 1985 (United States)
11
Ibid. §10
12
James C. Hathaway and Michelle Foster , Membership of a Particular Social Group Discussion
Paper No. 4 Advanced Refugee Law Workshop International Association of Refugee Law Judges Auckland, New Zealand, October 2002, International Journal of Refugee Law, 15(3), 2003
13
Supreme Court of Canada, Canada (Attorney General) v. Ward, 2 S.C.R. 689, 30 June 1993
14 Ibid. 15 Ibid. 8
The Refugee Status Appeals Authority of New Zealand also largely relied on the protected characteristics approach. In the ReG.J16Case, the Court criticized the social perception approach as being to encompassing.
The Islam and Shah17 Case of the United Kingdom was about two married Pakistani women who were subjected to serious physical abuse by their husbands and forced to leave their homes. The House of Lords considered them as being “members of a particular social
group”. It has however long been discussed whether the court used one or the other approach.
In a later decision, in Montaya18, the Court made it clear that the criteria to determine “membership of a particular social group” lies in the protected characteristics approach.19
The protected characteristics approach is thus resting the recognition of “particular social group” for homosexuals on the innate and immutable nature of sexual orientation. This conception of homosexuality and sexual orientation is very narrow. It has an impact on the refugee determination process and especially in the credibility assessment. Since homosexuality is considered as fixed, every fluid concept is rejected.
1.2. Innateness and immutability in the credibility assessment procedure
The protected characteristics approach acknowledges homosexuality as an innate and unchangeable characteristic. It is a vision largely shared in western society. This vision has a large impact on the burden of proof of the claimant and especially on the credibility assessment.
16
Refugee Status Appeals Authority of New Zealand, Re GJ ,Refugee Appeal No. 1312/93, 30 August 1995
17
House of Lords, Islam (A.P.) v. Secretary of State for the Home Department Regina v. Immigration
Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals),25 March 1999 (United
Kingdom)
18
Immigration Appeal Tribunal, Montoya, Appeal No. CC/15806/2000, 27April2001(United Kingdom)
19
T. Alexander Aleinikoff, Protected characteristics and social perceptions: an analysis of the
meaning of “membership of a particular social group”, Cambridge University Press, June 2003 p.274
9
1.2.1. Previous methods of credibility assessment: a picture of on-going vision of sexual orientation as fixed
Previous methods have tried to assess homosexuality on medical testing and psychological assessment. Those methods are an old-fashioned way of considering homosexuality as genetic and purport a vision of homosexuality as innate and immutable. An extensive analysis of all those methods will not be done in this paper because it doesn’t serve the purpose of the research. However, in order to understand the all picture, we will rest on a decision of the European Court of Justice of 2014 that prohibits some of those methods. The A, B and C v
Staatssecretaris van Veiligheid en Justitie20case prohibits most of the methods used to assess the sexual orientation of the applicants because of violations of human rights obligations and the lack of probative value of it. While the methods analyzed have been prohibited by the Court of Justice, it is still a picture of an on-going mentality of certain adjudicators.
The ECJ held that self-identification is the starting-point of any assessment by States of the sexual orientation of an asylum seeker.21 The Court makes it clear that “assessment must take
account of the individual situation and personal circumstances of the applicant”.22 According to Article 4 of the 2004 Qualification Directive23, Member States are able to subject self-identification to an assessment procedure. However, such assessment must not violate human rights obligations and in particular the Charter on Fundamental Rights of the European Union. Therefore, some practices are strictly prohibited.
In that regard, the Court prohibits any questions regarding details of sexual practice of the claimant.24 In February 2014, The Observer, a British newspaper, published extracts of an asylum interview to determine the sexual orientation of a claimant25. The applicant had been interviewed during five hours with questions about his/her sexual practice judged “shocking
20
CJEU, A, B and C v Staatssecretaris van Veiligheid en Justitie, Grand Chamber, Joined cases C‑148/13 to C‑150/1, 2 December 2014 21 Ibid. §52 22 Ibid. §57 23
Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L. 304/12-304/23; 30.9.2004, 2004/83/EC, 30 September 2004
24
CJEU, A, B and C v Staatssecretaris van Veiligheid en Justitie. See above 20. §64
25
Diane Taylor and Mark Townsend ,Gay asylum seekers face humiliation, The Observer, 8 February 2014
10
and humiliating”. The article also noticed a particular stereotyped understanding of sexual
orientation. Questions like “Did you put your penis into x’s backside? When x was penetrating
you? Did you have an erection? Did x ejaculate inside you? What is it about men’s backside that attracts you? What is it about the way men walk that turns you on?” have been asked to
the claimant.
This article provoked indignation and pushed the Home office of the United-Kingdom to conduct an independent study on the subject. The study, published in October 2014, revealed that still 10% of the questions asked are “intrusive and unsatisfactory”.26
The ECJ, in a single paragraph held that questions specifically relating to sexual practices are contrary to the fundamental rights guaranteed by the Charter “and, in particular, to the right
to respect for private and family life”.27
The ECJ further prohibits any documents where homosexual acts are performed, it held that “the submission of the applicants to possible ‘tests’ in order to demonstrate their
homosexuality or even the production by those applicants of evidence such as films of their intimate acts does not necessarily have probative value, [moreover] such evidence would of its nature infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter.”.28
This practice was especially used in the Czech Republic between 2008 and 2009.29 It consists of the evaluation of the reaction of a person to same-sex pornography. Such a test was required as additional evidence when the statement of the person was considered as contradictory or unconvincing. It was part of a complex “sexodiagnostic examination”, and included an interview with a sexologist and the so-called “phallometric testing”.30 This test was thus only a part of the evidence put in front of the adjudicator, however it was decisive. While the execution of the test rested on the written consent of the person, the consent was pretty biased. In fact, if the person refused to submit himself/herself to the test, it could be taken as negative evidence by the adjudicators. This practice was not only unnecessary since
26
Independent Chief Inspector of Borders and Immigration, An investigation into the Home Office’s
Handling of Asylum Claims Made on the Grounds of Sexual Orientation: March – June 2014, 23
October 2014
27
CJEU, A, B and C v Staatssecretaris van Veiligheid en Justitie.See above 20. §64
28
Ibid. §65
29
VrijeUniversiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation
and Gender Identity in Europe, September 2011
30
VrijeUniversiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation
and Gender Identity in Europe, September 2011, p52
11
different procedures in order to “establish homosexuality” could be used but also contrary to the prohibition of inhuman and degrading treatment and the right to privacy. Therefore it has received a strong criticism from the international community including a comment of the UNHCR31 but also the Fundamental Rights Agency of the European Union32, and other human rights organizations and institutions.
It is in that sense, it seems, that phallometric testing has been stopped since 2009 in the Czech Republic. However, it has been used at least once in Slovakia in 2005.33
In a larger sense, any kind of expert opinions of sexologists, psychologists or psychiatrists are forbidden. The Fleeing Homophobia project’s final report34 revealed that many Central and Eastern European countries have used that kind of expertise. However, also western countries like Germany have used it. For example, a German Court based its favorable decision on the interview of the claimant but also on the sexological-psychological expert opinion. Those tests are particularly inconclusive regarding the veracity of it. Therefore, the Fleeing Homophobia Report notices that in a Hungarian case of a 16-year-old Iranian applicant, three medical examinations were made. One of them declared the applicant heterosexual, the second declared him homosexual while the last one said that it was too young to determine the sexual orientation of a person. Thus, the life of those people rests on tests that seem particularly unreliable.
Moreover, any test or video provided with the “consent” of the applicant has been prohibited in this decision. According to the ECJ, it does not necessarily have probative value and it would “incite other applicants to offer the same and would lead, de facto, to requiring
applicants to provide such evidence”.35
Those practices have thus been prohibited by the European Court of Justice. At the international level, it also contravenes UNHCR’s guidelines which state that officials should
31
UNHCR, Comments on the practice of Phallometry in the Czech Republic to determine the
credibility of asylum claims based on persecution due to sexual orientation, April 2011
32
European Union Agency for fundamental rights, The practice of phallometric testing for gay asylum
seekers, 9 December 2010
33
VrijeUniversiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation
and Gender Identity in Europe, September 2011
34
Ibid.
35
CJEU, A, B and C v Staatssecretaris van Veiligheid en Justitie.See above 20. §66
12
rely on the applicant’s statements alone where there is a lack of Country of Origin Information.
Thus, there seems to be a common consent of international organizations that those practices are not only contrary to human rights but also irrelevant. While those prohibitions are an uncontestable progress for LGB rights, it also has its downsides. In fact, given that no material evidence can exist in sexual orientation determination, the decision will be essentially based on the intimate conviction of the adjudicator.
1.2.2. Current methods of assessing credibility: presumption of sexual orientation as fixed
It is important to evaluate the current methods used in the assessment of credibility of the asylum seekers and the impact of an innate and immutable vision of homosexuality. This assumption leads to a denial of the fluid nature of sexual orientation.
First, sexual orientation has been recognized by most countries as constituting a particular social group. While there is no strict definition of sexual orientation, it seems to encompassed lesbians, gay and bisexuals. However, a lot of studies around different countries have shown that the successful rate of asylum claims based on bisexuality is much lower.36 It is really difficult to fully have an overview on this phenomenon since not all decisions are published. However, in Sean Rehaags’ report on bisexual data in asylum37, the conclusion was that while the success rate for sexual minority claims was approximately the same as the one of all refugee claims, it was much lower for bisexual claimants. He noted a success rate by the Immigration Refugee Board (IRB) in Canada of around 50% for both sexual minority and other claimants but only 39% for bisexual refugee claimants. The same conclusion has been drawn for the United-States and Australia.
According to Rehaag, the main explanations of it are lying in the fact that bisexuality is invisible. Therefore, society in general and adjudicators tends to see sexual orientation as a binary concept, between homosexuality and heterosexuality. Secondly, the troubling views
36
Sean Rehaag, Bisexuals need not apply: A comparative appraisal of refugee law and policy in
Canada, the United States, and Australia, International Journal of Human Rights, Volume 13, No.2,
p415, 2009
37
Ibid.
13
about bisexuality would play against them. For example, the article draws the comments made by the Refugee Review Tribunal (RRT) in Australia: “by stressing at the hearing that he is
bisexual, the Applicant has not satisfied the Tribunal that he is reconciled to homosexual activity, lifestyle or even social association, or that he has any kind of preternatural homosexual identity or tendencies.It seems to the Tribunal that if this casewere about political opinion, it would be as if the Applicant were saying that, at heart, hewas a little bit disposed towards democracy but also eager to support authoritarianism; if itwere about religion, it would be as if the Applicant, at heart, were a little bit Christian anda little bit atheist”.38 It must be reminded that several refugee tribunals have accepted bisexuality as a basis for refugee claims. However, those comments are not infrequent.
We can therefore argue that there is an on-going vision of sexual orientation as fixed. In that context, bisexuality is considered as a fluid sexual orientation. It can play often against the claimants.
A second difficulty arises in the credibility assessment of homosexual asylum claim when the applicant has a “past of heterosexual conduct”. Having had other relationships with the opposite sex before creates a culture of disbelief. Since homosexuality is considered as innate, it is nearly impossible to accept that a homosexual could have had a past of heterosexual. In that view, the IRB in Canada rejected, in Re X, the application of a homosexual Nigerian on the fact that he had a spouse with whom he had two children. The Court found that it was “highly improbable that a homosexual would father two sons”.39 While this decision has then been overturned by the federal court on the basis that the IRB had ignored the evidence of the homosexuality of the individual40, it still shows us a general way of the adjudicator of thinking.
The same Court rejected a claim of a gay man who had had a brief relationship with a woman after arriving in Canada.41
Similarly in a British case, a woman from Sierra Leone claimed that after her sexual orientation was revealed in her community, she was forced to marry and rape by her husband. She could flee her country and arrived to the United Kingdom. However, she was pregnant.
38
Ibid.
39
IRB, Re X, RPDD 80026 (QL), 2006
40
Federal Court of Canada,Lekev. Canada (Citizenship and Immigration), FC 848 (QL), 22 August 2007
41
Federal Court of Canada, Khrystych v. Canada (Minister of Citizenship and Immigration) RPDD 339, 12 April 2004
14
This weighed heavily against her during credibility assessment, when the immigration judge could not believe that she could be pregnant as a lesbian.42
The assumption that homosexuality and sexual orientation in general is immutable plays against the more complex reality of homosexuality. It is in fact rare to find gay men and lesbians who have not had some sexual contact with the opposite sex, by will or because of social pressure. In some cases, gay men and lesbians may have been married, again in part due to social pressures. This should not have an impact on their claim. Barry O’Leary named one of its articles after a sentence of an immigration judge “We cannot claim any particular
knowledge of the ways of homosexuals, still less of Iranian homosexuals”.43 This is a clear summary of a too often forgotten reality. To the fact that adjudicators often have no knowledge about what homosexuality really means and how fluid it can be, we can add that they also have a difficult time putting the situation in the context of another culture where often the social pressure is higher.
Lastly, applicants who exhibit uncertainty about their sexual orientation have also encounter problems in the credibility assessment. A lot of immigration tribunals’ decisions have rejected claims because the applicant seemed unsure of its sexual orientation. However, once again, claims should be taken in a different cultural context. A lot of factors are playing for a person to ask for Refugee Status because he/she is persecuted for its sexual orientation. Once of them lies in the fact that many applicants have lived during years in a homophobic context, as a result they have internalized such idea.44 It is even more accurate in countries where homosexuality is criminalized, it gives a legal basis to homophobia. Those applicants can thus be reluctant to consider themselves as homosexual. Often, those people will identify with an alternative sexuality that they believe for acceptable in their countries of origin. Therefore, homosexuals will often describe themselves as bisexual in order to maintain the possibility of family values that have been culturally instilled in them.45 By internalization,
42
Barry O’Leary, “We cannot claim any particular knowledge of the ways of homosexuals, still less of
Iranian homosexuals…”: the particular problems facing those who seek asylum on the basis of their sexual identity, Fem Leg Stud, 16:87-95, 2008
43
Ibid.
44
Laurie Berg, JenniMillbank, Constructing the Personal Narratives of Lesbian, Gay and Bisexual
Asylum Claimants , Journal of Refugee Studies, vol. 22, n° 2, p.195-223, 2009. p198
45
Clarwen Ann Sykes O’Hara, The gap between immutability and perceptibility : issues experiences by
sexual minority asylum seekers in the context of the « membership of a particular social group » ground, Monash University, April 2005
15
social pressure, and fear, the applicant can easily get confused by arrival in another country, another culture.
Secondly, asylum seekers may experience difficulties regarding terminology used in a western cultural context. The UNHCR states in its Guidelines that “not all applicants will
self-identify with the LGBTI terminology and constructs…or may be unaware of these labels”.46
However, in another case by the IRB an Indian man originally claimed to be bisexual before identifying himself as homosexual. He claimed confusion about the two terms, thinking that it meant the same. Nonetheless, the IRB drew a negative interference as to the credibility of the claimant and his assertion of his homosexuality.47
Those tendencies have been greatly reported by Berg and Millbank in a transcript of a judicial review where the applicant seems unsure about its sexuality and the terminology to use. 48
We can therefore conclude that the innate and immutable vision of sexual orientation as advocated in the protected characteristic approach is also visible in the credibility assessment phase. Every fluid conception of sexual orientation is left outside. Therefore, a number of person having a well-founded fear of persecution based on their sexual orientation are denied refugee status because of lack of credibility.
46
UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION NO.9: Claims to Refugee Status
based on Sexual Orientation and/or gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, 23 October
2012. §11
47
IRB, Re X, RPDD 90035 (QL), 2009
48
Laurie Berg, JenniMillbank, Constructing the Personal Narratives of Lesbian, Gay and Bisexual
Asylum Claimants. Seeabove 44. p208-209
16
2. Limits of considering sexual orientation as perceivable
On the other side, the social perception approach has based its interpretation of particular social group on an external criterion, considering sexual orientation as a perceivable characteristic (2.1.). This conception of homosexuality can be observed in the assessment of well-founded fear of persecution and the development of the requirement of discretion (2.2.) as well as in the assessment of credibility relying on stereotypes (2.3.).
2.1. Particular social group: the social perception approach
The social perception approach is an interpretation of the Refugee Convention’s definition based on a sociological methodology. In fact, it puts in front “external factors”, namely whether an individual is perceived by society as belonging to a particular social group.
In the French Ourbih Case of 199749, the Conseil d’Etat fixed two important requirements for the definition of a “particular social group”, namely the existence of a common attribute between the members of the group that defines a group in the eyes of the authority and of the society at large, as well as the fact that the members of the group are exposed to persecution. This decision arose regarding the membership of a transsexual person to a particular social group.50
The other landmark decision in the social perception approach comes from an Australian Court. In Applicant A51, the High Court of Australia had to deal with the “membership of a
particular social group” in the case of Chinese couples who had a child and objected to
coerced sterilization under the country’s “one child policy”. The Court held that a particular social group is “a collection of persons who share a certain characteristic or element which
unites them and enables them to be set apart from society at large”. Later on, in Applicant
S52, the Court ruled that the general principle is not that the group must be recognized or
49
Conseil d’Etat, Ourbih, 171858 ,10 / 7 SSR, 23 juin 1997 (France)
50
Ibid. Second Considérant « constituant un groupe dont les membres seraient, en raison des
caractéristiques communes qui les définissent aux yeux des autorités et de la société algériennes, susceptibles d’être exposés à des persécutions »
51
High Court of Australia, Applicant A v Minister for immigration and ethnic affairs, 142 ALR 331, 24 February 1997
52
High Court of Australia, Applicant S v Minister for Immigration and Multicultural Affairs, 217 CLR 387, 27 may 2004
17
perceived within the society but rather that the group must be distinguished from the rest of the society. In this case, the claimant fled Afghanistan because he feared its recruitment by the Taliban since he was an able-bodied man. The first tribunal didn’t found that able-bodied men constituted a particular social group since they were not perceived by the society as such. The claimant argued that while the perception can be part of the assessment, it is not a requirement. Therefore, if the group is distinguished from the rest of the society, it can constitute a particular social group. This leads to an extensive interpretation of the group. The group is defined negatively.
The UNHCR has summarized the States’ jurisprudence and came up with a definition of “membership of a particular social group” under the social perception approach as “a group
sharing a common characteristic which makes them a cognizable group or sets them apart from society at large”.53
The social perception approach highlights the recognition and distinction of the group by the society. For example, the French Court applies the so-called “indiscretion requirement”. This means that protection will only be granted to persons that publicly claim to be homosexual and manifest it in their external behavior. This has first been held in the
Djellal54 case of the Commission des recours aux réfugiés (CRR) in 1999. The criterion has then often been reaffirmed by the Court (CNDA) and its former commission (CRR). In 2008, the Court recognized homosexuals from Algeria as forming a social group if they claimed and manifested it in their external behavior, in the Mme G55 case. Thus, as stated in the M.A.56 Case of 2004, a person cannot fear persecution when he/she has never claimed and manifested his/her homosexuality externally and when there is no criminalization of it in the country of origin, therefore the social group cannot be recognized.
In 2007, the Court held that the situation in Afghanistan can lead to the finding of a particular social group for homosexuals even when they don’t claim and manifest it externally. However, while this may seem as an abandon of the criteria of indiscretion, it had only be
53
UNHCR, Guidelines on “membership of a particular social group”.Seeabove 6. §7
54
Commission des recours aux réfugiés (CRR), Djellal, SR, 328310, 12 may 1999
55
Commission des Recours des Réfugiés (CRR), Mme G, 04039953/513547 C+, 25 march 2005.
56
CRR, M. A , 483808, 12 October 2004
18
applied when there is legislation criminalizing homosexuality in the country of origin.57 In fact, the same findings are applied for Tunisia in 200958 and for Cameroon in 2011.59
This vision of homosexuality can be found in the assessment “well-founded fear of persecution”. It also has impact on the credibility assessment by developing visible stereotypes about homosexuality. Since homosexuality is considered as perceivable, every invisible expression of one’s sexual orientation is rejected.
2.2. Perceptibility in the assessment of well-founded fear of persecution:
the discretion requirement
The discretion requirement consists of a “reasonable expectation that persons should, to
the extent that it is possible, co-operate in their own protection”.60 Therefore, LGB claimants who managed to establish both their sexual minority status and the existence of persecution in their home country can still be returned with the warning that they should avoid persecution by simply acting discreetly. In other words, they will be denied Refugee Status if they have nothing to fear in their home country by remaining discreet.
This requirement has been used by the BIA in the Re Soto Vega61 Case. The immigration judges accepted that Soto Vega was homosexual, however its application was rejected on the ground that he could remain discreet. The reasoning was that he was not stereotypically gay enough to objectively have a well-founded fear of persecution: “I didn't see anything in his
appearance, his dress, his manner, his demeanor, his gestures, his voice, or anything of that nature that remotely approached some of the stereotypical things that society assesses to gays”.62 57 CRR, Z, 589257, 23 may 2007 58 CNDA, C, 634565/08015025, 7 july 2009 59
CNDA, 09012710 Cameroun, 10 january 2011 « que dans les conditions qui prévalent actuellement
au Cameroun, la situation des homosexuels, quand bien-même ceux-ci n'auraient ni revendiqué ni manifesté leur orientation sexuelle de manière ostensible, permet de les regarder comme un ensemble de personnes circonscrit et suffisamment identifiable pour constituer un groupe dont les membres sont, en raison de caractéristiques communes qui les définissent aux yeux des autorités et de la société camerounaise, susceptibles d'être exposés à des persécutions »
60
RRT Case No. V95/03527, [1998] RRTA 246, 9 February 1996
61
BIA, Re Soto Vega, No. A-95880786, 27 January 2004
62
Fadi Hanna, Punishing Masculinity in Gay Asylum Claims, The Yale Law Journal, Vol. 114, No. 4, pp. 913-920, January 2005
19
In an Australian case, the RRT also stated, concerning a gay man from Sri Lanka, that “The
evidence is that he can avoid a real chance of serious harm simply by refraining from making his sexuality widely known – by not saying that he is homosexual and not engaging in public displays of affection towards other men. He will be able to function as a normal member of society if he does this. This does not seem to me to involve any infringement of fundamental human rights”63
However, the problems raised by this requirement are not complicated to assess. First, it puts the blame on the victim for the persecution. One could remove its “well-founded fear of persecution” by hiding or concealing its sexual orientation. Therefore, by not doing it, the blame for the persecution is put on the victim rather than on the perpetrator. This is perverse but also in total contradiction with the aim of the Convention. In fact, the Convention aims at protecting those who are persecuted because of their race, religion, nationality, membership in a particular social group or political opinion. Imposing a requirement of discretion or indiscretion is thus completely against the aim of the Convention64. Should a persecuted political opponent be held responsible for persecution on this account in its own country because he could have remained discreet on its political opinions? This reasoning is hardly in line with the Convention but also with human rights and the right to freedom of expression and freedom of association.
Secondly, and as a consequence of the reversal of blame on the victim, it pushes to homophobia and exclusion in the country. In fact, by putting the blame on the victim, it also removes it from the perpetrator. It is thus a form of acceptance or even recognition of the act. Thirdly, it shifts away the question of whether acting discreetly could not in itself amount to persecution.65
The European and international institutions have outlined the limits of the discretion requirement and ordered the States to abandon it. The UNHCR expresses that “a person
cannot be expected or required by the State to change or conceal his or her identity in order to avoid persecution. As affirmed by numerous jurisdictions, persecution does not cease to be
63
RRT Case No. V98/08356,[1998] RRTA 4841, 28 October 1998
64
Kendal, Christopher N., Lesbian and Gay Refugees in Australia: Now that “acting discreetly” is no
longer an option, will equality be forthcoming?, 15 International Journal of Refugee Law 4 (2003), p.
739-740
65
ZsoltBobis, You are not what you ought to be : Credibility assessment in Sexuality-Based Asylum
Cases, Central European University 1, 2012, p.18
20
persecution because those persecuted can eliminate the harm by taking avoiding action”.66
Moreover, the Qualification directive states in its article 10(1)(d) that “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”. Yet, the discretion requirement imposed, on LGB asylum
seekers, the obligation to conceal their sexual orientation in order to avoid persecution. It thus goes against the Qualification Directive of the European Union.
The European Court of Justice, in the X, Y, Z v Minister voor Immigratie en Asiel Case, also rejected the discretion requirement: “None of those rules states that, in assessing the extent of
the risk of actual acts of persecution in a particular situation, it is necessary to take account of the possibility open to the applicant of avoiding the risk of persecution by abstaining. […]The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect”.67 The court concluded that “when assessing an application for refugee status, the competent authorities
cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation”.68
The discretion requirement is therefore based on the idea of perception. In fact, if the claimant is not perceivable by the society, namely that he remains discreet, there exists no well-founded fear of persecution.
2.3. Perceptibility in the credibility assessment: the use of western
stereotypes
The requirement of perception has pushed adjudicators to rely on visible elements to assess the credibility of homosexuality. Therefore, it has led to the use of stereotypes about sexual orientation and homosexuality. It is also especially evaluated through criteria
66
UNHCR, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender
Identity, 21 November 2008. §12 and §31-33
67
CJEU, X, Y, Z v MinistervoorImmigratie en Asiel , C‑199/12 - C‑201/12, 7 November 2013. §74-75
68
Ibid.§76
21
applicable in western society.69 It often relies on stereotypes of how a homosexual should look like or behave.
It is extremely hard to evaluate the impact of stereotypes on the decision of the adjudicator. In immigration cases, stereotypes will often have an impact at the interview level. Those interviews are not always written which doesn’t allow us to have precise statistics about it. However, a number of studies, interviews have reported this phenomenon. The fleeing Homophobia project has list a number of stereotypes that have led to negative decisions for the asylum seekers.70 This phenomenon has also been greatly expressed in the Home office guidance on the treatment of sexual identity issues in asylum claims of the United Kingdom.71 According to the report, key considerations must be given to the fact that “caseworkers must not stereotype the behaviour or characteristics of lesbian, gay or bi-sexual
persons”. Secondly, the report stressed that “it is important to recognise that some individuals may hold a completely different perception of their own sexual identity from those implied by the term LGB, or may be unaware of labels used in Western cultures. They may be unwilling to use the labels used in their language”.72
Moreover, it is dangerous because it can easily rely on western stereotypes where men have to be effeminate and women masculine. Fernando Enrique Rivera, a gay man from Mexico applied for asylum in Canada, claiming that he was blackmailed for his sexuality and forced to live in the closet to keep his job. His application was rejected by the IRB, Immigration and Refugee Board, on the ground that he did not act effeminate enough and thus, there was no risk of persecution. The Board members concluded that “effeminate
gestures come naturally and unconsciously. If he were indeed visibly effeminate ... he would have been (un)able to easily land a job with the 'macho' police force of Puerto Vallarta”.73
69
Laurie Berg, JenniMillbank, Constructing the Personal Narratives of Lesbian, Gay and Bisexual
Asylum Claimants , Journal of Refugee Studies, vol. 22, n° 2, p.195-223, 2009. p.207
70
VrijeUniversiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation
and Gender Identity in Europe, September 2011. p.61
71
Home Office of the United Kingdom, Asylum Policy instruction: sexual identity issues in the asylum
claim, Version 5.0, 11 February 2015
72
Ibid. p.5
73
Mike King, Too butch to get asylum: the Canadian government says Fernando Enrique Rivera is
not Nelly enough to be in danger of persecution, so it's sending him home, The advocate (the national
gay&lesbian newsmagazine), 8 June 2004
22
Secondly, rejection of homosexual asylum claims have often been made on the ground that the person was not frequenting the gay or lesbian scenes. In France, a lot of articles have reported that interviews still relied on the frequentation of asylum seekers of the “Marais”, well known neighborhood of homosexuals in Paris. Alain Enam, lawyer, reports that “judges
still have troubles sometimes understanding how an asylum seeker living in Paris since a few months doesn’t know “le Marais”.74 There exists a huge gap between western culture and the country of origin. In culture where homosexuality is not accepted or even criminalized, one can imagine that going to homosexual places is not easy, if those places even exist. Thus, it is hardly acceptable to judge the credibility of someone by relying on the places he/she frequents. Moreover, there is no obligation to read gay magazine, go to gay meeting and frequent gay bars to actually be gay.
Those reasoning are based on preconceived ideas about sexual orientation and homosexuality in particular. Homosexuality needs to be out and visible. One of the main problem of it is that stereotypes on homosexuality (membership in gay organizations, subscriptions to gay publications, and participation in gay pride parades) become better evidence than the testimony of the person. It excludes LGB that refused to entrench themselves in stereotypes. It can also push homosexuals to hide away in those stereotypes75. Mohammad is coming from Iran were homosexuality is punished with death penalty. After being abused and its homosexuality being revealed by its abuser, he asked asylum in the United States. The BIA refused its application on the ground that he was not “effeminate enough”. In its appeal judgment, his lawyers advised him to employ a narrative that “resonate[s] with the values, beliefs and assumptions of' the judge by draw[ing] upon
prevailing norms and beliefs, no matter how problematic they may be.” Thus, Mohammed
had to comply with western stereotypes of homosexuality in order for his claim to be accepted.76
74
Camille Jourdin, Droit d’asile: comment prouver qu’on est homosexuel?, Slate website, 29 april 2015
75
Deborah Morgan, Not Gay Enough for the Government : Racial and Sexual Stereotypes in Sexual
Orientation Asylum Cases, Law & Sexuality, Volume 15, p.135-161, 2006
76
Ibid.
23
3. Shifting away from a binary vision of sexual orientation
The two visions purported of sexual orientation have created a gap of protection for those who do not fit in those categories. The UNHCR has attempted to increase the protection of LGB asylum seekers by proposing the so-called alternative approach. It is however not erasing the gap of protection between immutability and perceptibility(3.1.). We argue that adjudicators should focus on the persecution assessment rather than on the membership to a particular social group (3.2.). However, credibility assessment cannot completely disappear of the refugee status determination. Therefore, subjective methods of credibility assessment need to be used in order to avoid any drift (3.3.).
3.1. Gap of protection in the UNHCR alternative approach
Given the consequences of a dual view of sexual orientation as innate and immutable or perceivable, attempts have been made to reduce the gap of protection.
In 2012, the UNHCR issued Guidelines on the claims to Refugee Status based on sexual orientation within the context of the definition of Refugee in the Convention.77 Because of the divergent interpretations given by Member States of “membership of a particular social
group”, the UNHCR adopted in this document an alternative approach to those
interpretations. It thus said that Courts should apply either one or the other as alternative and not cumulative tests.78 Thus, States should determine first if there is a protected characteristic and, only if no such characteristic exists, to determine whether the group is recognized by the society.79 We will analyze the practice of States regarding the application of the alternative approach.
First, the European Qualification Directive of 200480, that incorporated the 1951 Refugee Convention’s definition of refugee into supra-nationally binding European Union law,
77
UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION NO.9: Claims to Refugee Status
based on Sexual Orientation and/or gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, 23 October
2012
78
Ibid. §45
79
UNHCR, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender
Identity, 21 November 2008, §13
80
Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as
24
adopted a cumulative approach instead of the alternative approach advocates by the UNHCR guidance note. It must however be noted that the Directive was adopted before UNHCR guidelines. Article 10(1)(d) of the Directive states that “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”. Moreover, the European Court of
Justice, on 7 November 2013 in the joined cases X, Y and Z v Minister voor Immigratie en
Asiel81,interpreted the Qualification Directive of 2004 in the context of asylum applicants
fleeing persecution on the basis of their sexual orientation. In the judgment, the Court stated that “a group is regarded as a ‘particular social group’ where, inter alia, two conditions are
met”. Thus, it also acknowledges the cumulative test approach, in contradiction with the
UNHCR Guidance note. The cumulative test is going against the purpose of the alternative approach. In fact, it is an accumulation of the limits of both the approaches. It is thus very restrictive for asylum seekers asking refugee status for persecution on the basis of sexual orientation.
The transposition of the cumulative approach of the Qualification Directive in the domestic system of the Member States has however varied between them.
In fact, some countries seem to have implemented the cumulative approach of the Qualification Directive. It has been the case of Germany which held so in the application instructions but also in the majority of its case law.82 In a more doubtful manner, some Member States have upheld the Qualification Directive and its article 10, however their practice seems to be in contradiction with the cumulative approach. It is the case of Austria, Belgium and Spain.83 Some countries have largely retained their previous interpretation without giving much attention to either the Qualification Directive or the UNHCR guidance,
Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L. 304/12-304/23; 30.9.2004, 2004/83/EC, 30 September 2004
81
CJEU, X, Y, Z v MinistervoorImmigratie en Asiel , C‑199/12 - C‑201/12, 7 November 2013
82
Michelle Foster, UNHCR, The 'Ground with the Least Clarity': A Comparative Study of
Jurisprudential Developments relating to 'Membership of a Particular Social Group', PPLA/2012/02,
August 2012, p.24-27
83
Ibid.
25
like France.84 Lastly, some have decided to follow the UNHCR guidance by applying an alternative approach, it is the case of the United Kingdom.85
Outside the scope of the Qualification Directive, it is also interesting to see how countries have applied the UNHCR Guidance. Until recently, the United-States (BIA and federal courts) weren’t focusing on the “social visibility” in defining “membership of a
particular group”. The Courts have only relied on the protected characteristics defined in the Acosta86 decision and based solely on the existence of an immutable characteristic, i.e. “one
that an individual either cannot change or should not be required to change because it is fundamental to identity of conscience”. Thus, only the internal aspect was taken into account
in the Acosta decision. Any external perception was left outside. Relying on the UNHCR Guidelines, the United States started emphasizing the importance of "social visibility" in defining a particular social group. This new trend can be seen in two major cases of the BIA, the C-A-87 Case and the A-M-E88 Case. However, as we will see, the BIA failed to truly implement the UNHCR Guidelines and relying on the social visibility approach as an alternative way to the protected characteristic approach.89
In fact, in the C-A-90 Case, the BIA diverged from the international accepted understanding of the social visibility approach. It derived from this accepted understanding by focusing on the visibility of group members rather than whether the group as a whole was recognized by society. It thus goes in contradiction with previous understanding of the term where a group must be recognized as such in the eyes of the authority and of the society in large. Each and every member forming the group does not enter in the process.
84
Ibid.
85
Ibid.
86
Board of immigration Appeals (BIA), Matter of Acosta, A-24159781, 1 march 1985
87
United States Court of Appeal for the 11th Circuit, Castillo-Arias v. U.S. Attorney General, 04-14662, 11 April 2006
88
United States Court of Appeal for the 2nd Circuit, Ucelo-Gomez v. Mukasey, 4-4184-ag(L), 04-4185-ag(CON), 21 November 2007
89
Fatma E. Marouf, The emerging importance of “social visibility” in definition a “particular social
group” and its potential impact on asylum claims related to sexual orientation and gender, Yale
Law&Review, Volume 27: Iss.&, Article 3, 2008
90
United States Court of Appeal for the 11th Circuit, Castillo-Arias v. U.S. Attorney General, 04-14662, 11 April 2006
26
Secondly, in the A-M-E91 case, the BIA also applied the social visibility test. However, it departed from the alternative approach of the UNHCR Guidance’s note. As stated before, the UNHCR emphasized that applying the social visibility test only follows when the proposed group has been rejected on the basis of the protected characteristics approach. However in the present case, the BIA failed to examine the existence of particular social group under the protected characteristic approach. It rejected the group through the social visibility approach directly and thus pushed away the protected characteristics approach.92
Thus, while the United States has long applied the protected characteristics principle, it now introduces a new compulsory element into social group analysis, namely “the extent to which
members of a society perceive those with the characteristic in question as members of a social group.”93
The alternative approaches put forward by the UNHCR have not always been acknowledged in domestic systems. Some scholars have argued that however, it would be a better understanding of “membership of a particular social group”. In fact it would encompass more claims. If the criterion of one of the approaches is not meet by the claimant, he/she can still rely on the second approach. There is however still a “gap between immutability and perceptibility”94. It is highly possible that an applicant doesn’t meet the criteria to qualify for any of those two approaches to “membership of a particular social
group” and is however still persecuted in its home country on account of its sexual
orientation. For example, an applicant can have a particularly obscure sexuality that renders it socially imperceptible as a group and have a particularly fluid sexuality which failed the immutability test. Therefore, the applicant will not be considered as a member of a particular social group and be left outside the scope of protection of the convention.
91
United States Court of Appeal for the 2nd Circuit, Ucelo-Gomez v. Mukasey. See about 88.
92
Fatma E. Marouf, The emerging importance of “social visibility” in definition a “particular social
group” and its potential impact on asylum claims related to sexual orientation and gender. See above
89, p63-68
93
James C. Hathaway and Michelle Foster, The Law of Refugee Status, second edition, Cambridge University Press, 2014, p 430
94
Clarwen Ann Sykes O’Hara, The gap between immutability and perceptibility : issues experiences by
sexual minority asylum seekers in the context of the « membership of a particular social group » ground, Monash University, April 2005
27
One of the solutions to remedy the gap of protection of the alternative approach would be to understand sexual orientation in the context of the protected characteristic approach to particular social group as “groups whose members voluntarily associate for reasons so
fundamental to their human dignity that they should not be forced to forsake”.95 In fact, while sexual orientation has been considered in the category of “groups defined by an innate or
unchangeable characteristic” in the Ward Case, there were other categories of groups.
Therefore, it would be more accurate to reconsider the very nature of sexual orientation to include it as fundamental to human dignity rather than innate and immutable.
3.2. The difficulties of assessing persecution
Sexual orientation can hardly be considered as fixed. The assumption that individuals have one sexual identity which is fixed for life must be forgotten by adjudicators in the decision process. A binary approach, homosexual or heterosexual, of sexual orientation is too narrow when compared with the reality of sexual orientation. Therefore, retaining an assumption of sexual orientation as fixed is denying the protection of an all range of LGB claimants. What should be important in the refugee context is whether someone is persecuted on account of its sexual orientation rather than assessing if he/she is “really gay” or could “function heterosexually”. If the person move in or out of the social group should not matter.96 Thus, the criteria of persecution should override particular social group.
However, the assessment of the existence of persecution is in itself very fluid. States have applied criteria to the assessment of persecution that are questionable. It has been especially the case with the question of whether criminalization amount to persecution.
First, some countries have imposed a criterion of enforced criminalization to recognize persecution. The Fleeing homophobia report97 draws up the list of European countries where this requirement is applied. It is, among others, the case in France, Belgium, Sweden, the United Kingdom, Ireland, Germany, the Netherlands.
95
Supreme Court of Canada, Canada (Attorney General) v. Ward, 2 S.C.R. 689, 30 June 1993
96
Kristen L. Walker, Sexuality and refugee status in Australia, International Refugee Law Journal, Volume 12, No.2, 2000
97
VrijeUniversiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation
and Gender Identity in Europe, September 2011
28
Secondly, some countries go even further in the assessment of persecution and consider that even enforced criminalization is not enough to amount to persecution. Claimants have to show that the prosecution will take place in their specific individual case. According to the same report, it is the case of Denmark, Norway, Bulgaria, Spain, Finland and Norway.
The European Court of Justice, in X, Y, Z v. Minister voor Immigratie en Asiel, has developed a criterion of severity to amount to persecution. In fact, it held that “for a violation of fundamental rights to constitute persecution within the meaning of Article 1(A) of the Geneva Convention, it must be sufficiently serious”.98
Lastly, it is hard to evaluate the persecution in a State. While no criminalization can exist in the country of origin it doesn’t necessarily mean that the country is not homophobic in itself. In France, a number of case law shows that persecution is not only linked to criminalization. Persecution can still be found where a country is generally homophobic. It comes from the findings that persecution does not only arise from the State.
Thus, in the M.B. case, the Conseil d’Etat stated “the circumstance that the membership of a
social group is the object of no specific repressive penal arrangement is without incidence on the appreciation of the reality of the persecutions because of this membership which can, in the absence of any specific penal arrangement, rest either on capacities of common law wrongly applied to the considered social group, or on behavior emanating from authorities, encouraged or favored by these authorities or even simply tolerated by them”.99 The complete lack of criminalization should not be regarded as meaning that the country is safe. Homophobic climate, persecution by non-State actors may still exist in those countries. The social perception is thus too narrow to evaluate the persecution on the account of homosexuality. Persecution can be more or less invisible to the naked eye.
Thus, we have seen that the assessment of persecution can be very multifaceted. Moreover, an assessment of credibility of the claimant is still necessary. In fact, not assessing credibility about sexual orientation amount to the fact that refugee status would be open to
98
CJEU, X, Y, Z v MinistervoorImmigratie en Asiel , C‑199/12 - C‑201/12, 7 November 2013.§53
99
CE, M.B., n° 349824, 27 july 2012 « La circonstance que l'appartenance au groupe social ne fasse
l'objet d'aucune disposition pénale répressive spécifique est sans incidence sur l'appréciation de la réalité des persécutions à raison de cette appartenance qui peut, en l'absence de toute disposition pénale spécifique, reposer soit sur des dispositions de droit commun abusivement appliquées au groupe social considéré, soit sur des comportements émanant des autorités, encouragés ou favorisés par ces autorités ou même simplement tolérés par elles »
29
