GRADUATE SCHOOL OF SOCIAL SCIENCES
“The only thing you can do is tell your story”
How Dutch NGOs support LGBTI(Q+) asylum seekers to develop a credible narrative
Lotte van Liempd (13289462) Research Master International Development Studies Supervisor: Esther Miedema Second Reader: Maggi Leung Amsterdam, 26th of May 2022 Contact: lottevanliempd@gmail.com Word count: 30.075 words
i. Abstract
Dutch migration authorities assess the credibility of LGBTI(Q+) asylum seekers’ identities by scrutinizing how they narrate their experiences. However, applicants who cannot adhere to the narrative demands are (wrongfully) rejected. Dutch non-governmental organizations (NGOs) for undocumented migrants prepare people for a repeated asylum claim. Research exists on credible narrative expectations and how lawyers co-create an asylum narrative. Nonetheless, little is known about the role of NGOs in shaping these narratives. Further, existing literature addresses the expectation for LGBTI(Q+) asylum seekers to fit into ‘Western’ sexuality norms, but not the
narrative expectations through which they must convey their identities. Addressing these gaps, this study asks how NGO workers support LGBTI(Q+) asylum seekers to develop a credible narrative when preparing for a repeated asylum claim. Combining interview and participant observation data with government publications and court cases, I provide an ethnographic account of the credibility expectations for LGBTI(Q+) asylum seekers and the ways NGO workers support applicants to align their stories with these expectations. I found that Dutch migration authorities expect applicants to fit normative LGBTI(Q+) subjectivities, and present their experiences as a ‘good story’ to be considered ‘credible.’ NGOs prepare clients for a repeated claim by eliciting relevant information, helping clients present their experiences in the right narrative format, and by practicing their narrative performance. I conclude that NGO workers co-construct ‘credible’ asylum narratives and act as a mediator between applicants’ experiences and the legal-intuitional context to make clients’
LGBTI(Q+) identities ‘readable’ for decision-makers. This research contributes to the literature by outlining narrative demands for LGBTI(Q+) asylum seekers and demonstrating what role NGOs play in creating credible asylum narratives. Further, it can provide valuable information for NGOs to reflect on their practices and improve them. Lastly, it allows critical reflection on the credibility expectations placed on LGBTI(Q+) asylum seekers.
Key words: LGBTI(Q+) Asylum Seekers, Narrative, Credibility, NGO, The Netherlands
ii. Acknowledgements
I would first like to thank all the people that made time for me to interview them for this research. I especially extend gratitude to my colleagues at SUM for telling me their experiences and for their guidance and kindness during my internship. Thank you for helping me understand the realities and legal aspects of being undocumented in the Netherlands.
Secondly, I would like to thank my supervisor Esther Miedema for her frequent, useful feedback and for her support throughout the writing process. I thank Courtney Vegelin for her comments on my research proposal and my second reader, Maggi Leung, for her time. I would also like to thank Irma for the great collaboration, for the inspiring insights, and for our conversations about everything that is wrong with the world.
Lastly, I thank the people I love for always having confidence in me. Thanks especially to Laurens for giving me insightful feedback and unfaltering support.
iii. Table of contents
i. Abstract ... 1
ii. Acknowledgements ... 2
iii. Table of contents ... 3
iv. Tables ... 5
v. Figures ... 5
vi. List of abbreviations ... 5
v. Glossary ... 6
Chapter 1: Introduction ... 7
1.1 Introduction ... 7
1.2 Problem statement... 8
1.3 Research aim, questions, and scope ... 9
1.4 Real-life and scientific relevance ... 11
1.5 Thesis setup ... 11
Chapter 2: Theoretical framework ... 13
2.1 Introduction ... 13
2.2 LGBTI(Q+) asylum seekers ... 13
2.3 The concept of credibility and its establishment in asylum procedures ... 16
2.4 The roles of migration practitioners ... 20
2.5 Research gap... 22
2.6 Conclusion ... 22
Chapter 3: Context ... 24
3.1 Introduction ... 24
3.2 The Dutch asylum procedure ... 24
3.3 Migrants without legal residency ... 28
3.4 Conclusion ... 31
Chapter 4: Methodology ... 32
4.1 Introduction ... 32
4.2 Theoretical basis ... 32
4.3 Research design ... 34
4.4 Reflections on the research ... 38
4.5 Conclusion ... 40
Chapter 5: The IND’s demands for a credible narrative ... 41
5.1 Introduction ... 41
5.2 The IND credibility assessment ... 41
5.3 The normative content applicants need to discuss ... 42
5.4 The shape of the narrative ... 47
5.5 Frame of reference ... 50
5.6 The context: an institutional culture of disbelief ... 54
5.7 Conclusion ... 55
Chapter 6: The NGO preparation process ... 57
6.1 Introduction ... 57
6.2 The preparation process in practice ... 57
6.3 Improving a client’s story ... 62
6.4 NGO workers’ roles ... 69
6.5 Conclusion ... 70
Chapter 7: Discussion and conclusion... 71
7.1 Introduction ... 71
7.2 Answering the research questions ... 71
7.3 Theoretical reflections ... 74
7.4 Policy recommendations ... 79
7.5 Limitations and suggestions for further research ... 80
7.6 Reflections and concluding remarks ... 81
References ... 83
Appendices ... 90
Appendix A: Operationalization of key concepts ... 90
Appendix B: Interview guide for NGO employees ... 93
Appendix C: Interview guide for NGO supervisors ... 95
Appendix D: List of documents used ... 97
iv. Tables
page 37 - Table 1: Overview and characteristics of participants page 90 - Appendix A: Operationalization of key concepts
v. Figures
page 32- Figure 1: Conceptual model
page 78 -Figure 2: Updated conceptual model
vi. List of abbreviations
DT&V Dienst Terugkeer en Vertrek (Repatriation and
Departure Service)
IND Immigratie- en Naturalisatiedienst (Immigration and
Naturalization service)
LGBTI(Q+) Lesbian, Gay, Bisexual, Trans, Intersex (Queer, and including space for other or no categories). See page 10 for a detailed discussion.
NGO Non-governmental Organization
UNHCR United Nations High Commissioner for Refugees
v. Glossary
Asylum seeker/applicant A person who is seeking international protection whose claim for protection has not yet been finally decided on by the country in which the claim is submitted (the host country).
Article 3 of the European Convention on Human Rights (ECHR)
Prohibits torture and inhumane or degrading treatment or punishment. Can be used as an
alternative to the Refugee Convention framework as it protects against (forcible) return to countries where individuals could be subjected to torture, inhumane, or degrading treatment.
Herhaalde Asielaanvraag (HASA)
(repeated asylum claim)
An asylum claim submitted by a person who has submitted at least one previous application. Most commonly happens after a previous claim has gotten rejected, or when Refugee Status has been withdrawn.
Refugee A person whose claim to international protection has
been accepted under the eligibility criteria in Article 1 of the 1951 Refugee Convention or who is protected under Article 3 ECHR.
Refugee Convention United Nations Convention relating to the Status of Refugees (1951), the legal framework most commonly used for the protection of refugees. Article 1
establishes eligibility criteria as to when people can be recognized as refugees, and thus enjoy corresponding rights.
Refugee Status Determination Legal and administrative procedures carried out by states to determine whether an asylum seeker should be recognized as a refugee.
Undocumented migrant Migrants who does not have legal authorization to enter or stay in a country.
This glossary is largely based on terminology and definitions from the United Nations High Commissioner for Refugees (see UNHCR, 2005).
Chapter 1: Introduction
1.1 Introduction
“And that’s why I think it’s often difficult, a first asylum claim, because there’s very little preparation.
And that’s really a shame because, in the end [someone’s claim] often does succeed. So if someone would have been better prepared, then maybe it would have succeeded way earlier. And […] the biggest proof that the preparations are important is that most people in the end do actually get a residency permit.”
(Sophie, social-legal worker, SUM)1
Same-sex relationships or sexual acts are criminalized in 69 countries (Mendos et al., 2020).
In various other countries, LGBTI(Q+) people are strongly discriminated against or not explicitly protected by the law (ibid.; Equaldex, 2022). While there are no definitive numbers on how many LGBTI(Q+) people flee their countries of origin to request protection, it is estimated that each year thousands of asylum claims based on sexual orientation or gender identity are submitted in Europe (Jansen & Spijkerboer, 2011). Under the 1951 Refugee Convention, LGBTI(Q+) asylum seekers can receive international protection as belonging to a ‘persecuted social group’ (ibid.). However, receiving protection depends on whether asylum applicants can ‘prove’ that they belong to this persecuted social group (Jansen, 2018; UNHCR, 2008).
As there is no objective ‘proof’ for someone’s sexual orientation2, the assessment is based on whether an applicant can make their sexual orientation ‘credible’ in the asylum hearing (Jansen, 2018). In their 2011 study, Jansen and Spijkerboer found large differences in how the credibility of LGBTI(Q+) asylum seekers is determined in different European countries. Some countries even used medical or psychiatric ‘reports’ to ‘test’ whether an applicant was LGBTI(Q+). They found that many European migration authorities relied on stereotypes to examine the credibility of LGBTI(Q+) asylum applications (ibid.). In 2014, the European Court of Justice ruled3 that the establishment of asylum seekers’ sexual orientation could no longer be based on stereotypical notions about homosexuality (Jansen, 2018). Furthermore, European migration authorities could no longer ask about sexually explicit details, require video or photo evidence of sexual acts, nor could they administer (invasive) ‘tests’ (ibid.). In another judgment,4 the Court ordered that migration
1 All data in this thesis were originally in Dutch, all translations are mine.
2 See page 10 of this thesis for a discussion on terminology.
3 Court of Justice EU, 2 December 2014, A, B and C versus Staatssecretaris van Veiligheid en Justitie, C-148/13, C-149/13 and C-150/13. ECLI:EU:C:2014:2406
4 Court of Justice EU, 7 November 2013, X.,Y. and Z. versus Minister voor Immigratie en Asiel, C-199/12, C-
authorities could not force LGBTI(Q+) applicants to ‘be discrete’ about their identity, which was a reasoning states had previously used to return applicants to their countries of origin (ibid.).
In the Netherlands, the assessment of an LGBTI(Q+) asylum seeker’s claim of persecution is largely “focused on assessing the credibility of the sexual orientation or gender identity [of the applicant]” (Jansen, 2018, p.27). After the two judgments by the European Court, the Dutch migration authorities, the Immigratie- en Naturalisatiedienst (IND), started basing their
assessments of the credibility of applicants’ sexual orientations largely on the credibility of their stories (ibid.; IND, 2019). The IND assesses the credibility of LGBTI(Q+) asylum claims based on the
‘authentic stories’ applicants tell during the asylum hearing (IND, 2019).
Jansen (2018) argues that in recent years, Dutch migration authorities have increasingly been using the supposed ‘incredibility’ of applicants’ LGBTI(Q+) identities as an excuse to reject their claims. In Jansen’s (2018) sample, out of the 85 examined LGBTI(Q+) asylum cases in the
Netherlands that were rejected on case-based grounds, 76 were rejected because the IND did not believe the sexual orientation of the applicant (ibid.). This is a higher number than Andrade et al.
(2020) found, as out of all people they surveyed who saw their application refused, only a third (32%) was not believed by the decision-maker to really have the sexual orientation or gender identity based on which they claimed asylum. These researchers looked mostly at cases in
Germany, Italy, and the UK, which might explain the difference in outcome. Throughout Europe, but especially in the Netherlands, it is clear that credibility of applicants’ sexual orientation plays an important role in determining the outcome of LGBTI(Q+) applicants’ asylum claims.
1.2 Problem statement
Andrade et al. (2020) found that among the surveyed LGBTI(Q+) applicants that had ultimately been granted asylum status in Europe, 31% initially saw their first application refused but were later granted protection. These figures show that solely based on the asylum assessment procedure, people can be (initially) wrongfully rejected. While for these cases it was later in court decided that the assessment was wrong, there are no numbers on how many people remain wrongfully rejected.
In the Netherlands, no government data exist on sexual orientation-based asylum claims or their rejection rate. Out of Jansen’s (2018) sample of 267 LGBTI(Q+) cases in the Netherlands, only 63%
were granted asylum. From stories in the media, however, it becomes clear that among rejected applicants, there are a number of people who are ‘really’ LGBTI(Q+) who are wrongfully rejected because their sexual orientation is deemed ‘not credible’ (see for example De Vleeschhouwer, 2020;
LGBT Asylum Support, 2018).
Once an applicant’s first claim is rejected and there are no more options for appeal, they could file a repeated claim. Thousands of people a year file repeated asylum claims, but it is unknown how many of those requests are based on sexual orientation (see Ministry of Justice and Security, 2019, 2021). Different than in first claims, for a repeated claim applicants need to find their own legal representation (IND, n.d.-b). However, finding a lawyer can be complicated because the state subsidies for lawyers in repeated cases can be substantially lower (Ministerie van Veiligheid en Justitie, 2013). This makes lawyers hesitant to take these cases or to spend much time on them.
NGOs for undocumented migrants5 fill the gap left by social lawyers: they provide rejected asylum seekers with the legal aid necessary to prepare for a repeated claim. For LGBTI(Q+) asylum seekers, NGO workers try to help applicants ‘prove’ their LGBTI(Q+) identities by helping them practice telling their stories for the next asylum interview (see e.g. LGBT Asylum Support, n.d.). However, how NGOs support clients in presenting their stories credibly for their repeated claims is unknown.
This is the knowledge gap I address in this research.
1.3 Research aim, questions, and scope
1.3.1 Research aim
While NGOs in the Netherlands regularly provide LGBTI(Q+) asylum seekers with legal aid to prepare for a repeated asylum claim, little is known about how this support influences
applicants’ credibility. In this thesis, I aimed to explore how NGO workers make LGBTI(Q+) applicants’ sexual orientation credible, by looking at how they shape their clients’ narratives. To this end, I investigated the IND’s demands for a credible narrative and the practices NGO workers engage in to make their clients’ narratives ‘credible’ within these demands.
1.3.2 Research questions
In this research I addressed the following question:
How do NGO workers support LGBTI(Q+) asylum seekers to develop a credible narrative when preparing for a repeated asylum claim?
5 I use ‘undocumented’ not to mean ‘without identifying documents’ but rather ‘without state-issued residency documents’ for the Netherlands (see also Bauder (2013) for a useful discussion on terminology relating to undocumented migrants). Having their asylum claim rejected is one of the reasons why people can
To answer my main research question, I used two sub-questions to gain a deeper understanding of the topic:
Sub-question 1: What are the IND’s demands for a credible LGBTI(Q+) asylum narrative?
Sub-question 2: How do NGO workers prepare LGBTI(Q+) clients for a repeated asylum claim?
1.3.3 Scope
I combined various qualitative research methods to answer my research question. I researched the IND’s demands of credible LGBTI(Q+) asylum narratives using on-topic IND working instructions, court case reports from LGBTI(Q+) cases that had been rejected based on a lack of credibility, and views from NGO workers gathered from interview data. I explored the practices of NGOs that prepare LGBTI(Q+) asylum seekers for a repeated claim through participant observation and interviews. Data collection took place between September 2021 and February 2022. I interviewed fourteen NGO workers from five different NGOs in three Dutch cities and conducted five months of participant observation at Solidarity with Undocumented Migrants (SUM, a pseudonym), a relatively small organization for undocumented migrants in Utrecht. The scope of this research is limited to organizations that provide legal aid to undocumented migrants.
While LGBTI(Q+) asylum claims can address both gender identity and sexual orientation, my data is limited to how asylum seekers can make their sexual orientation credible, as there was little discussion, both in interviews and during participant observation, about how people can make their gender identity credible. I use the abbreviation LGBTI when presenting my empirical data because this was the term most commonly used by participants and the IND. I use the abbreviation LGBTI(Q+) in other chapters to demonstrate that while most applicants might generally identify as Lesbian, Gay, Bisexual, Trans, or Intersex, others see themselves as Queer, or as falling into other or no categories. Some scholars use the word ‘Queer’ as a general term when discussing asylum applications based on sexual orientation or gender identity, to demonstrate the intersections between sexuality and bordering practices (see for example Lewis, 2014; Luibhéid, 2008; Murray, 2014). I use LGBTI(Q+) to demonstrate the categories through which asylum seekers requesting protection in ‘Northern’ states must identify themselves, while leaving space for other subjectivities (see also McGuirk, 2018 for a discussion on using ‘LGBT’).
1.4 Real-life and scientific relevance
1.4.1 Societal relevance
My thesis contributes to an understanding of how the asylum procedure for LGBTI(Q+) applicants works. I show how an inability to adhere to the IND’s demands makes that some people are wrongfully rejected, and I outline what is necessary to be seen as ‘credible’ in these cases. This information could provide grounds for further reflection among decision-makers and policymakers on what can be reasonably expected of (LGBTI(Q+)) asylum seekers. Furthermore, my thesis sheds light on what NGOs do to make LGBTI(Q+) narratives more credible. These insights could help NGO workers to be aware of and reflect on these practices, and provide a basis to share and learn from other NGO workers’ practices.
1.4.2 Scientific relevance
This thesis contributes to the interdisciplinary field of studies that investigates the
demands, norms, and assumptions present in the LGBTI(Q+) asylum procedure. There are several studies on the importance of providing a ‘credible’ narrative in the Refugee Status Determination process to receive protection (see for example Blommaert, 2001; Holland, 2018; Vogl, 2013). While there are various studies on how LGBTI(Q+) asylum seekers must present their identity to be perceived as credible (see for example Akin, 2017; Berg & Millbank, 2009; Lewis, 2014), few scholars discuss how narratives could be crucial tools to convey credible LGBTI(Q+) identities.
Furthermore, while there is some previous research on how lawyers shape their clients’ asylum narratives to be seen as ‘credible’ (see Jacobs & Maryns, 2021), there is little research on how NGOs do this. This thesis thus operates on the intersection of law, migration studies, queer studies, linguistics, anthropology, and development studies to outline how NGOs play a role in making LGBTI(Q+) asylum seekers’ sexual orientations credible by helping them present credible narratives.
1.5 Thesis setup
In this chapter, I outlined the background of this study and set out the research aims and questions with which I conducted this research. In the second chapter, I outline theories that are relevant to understand my topic. I draw on existing research that discusses credible asylum narratives, the role of migration practitioners, and LGBTI(Q+) asylum cases. The third chapter outlines the context in which my research took place. I describe the asylum procedure in the Netherlands and the NGO support context for undocumented migrants. In the fourth chapter, I
describe the qualitative research design I have used to investigate this topic and discuss
methodological considerations. These include the theoretical basis of my chosen methods, my data collection methods, ethical considerations, and a reflection on the quality of my research. In the fifth chapter, I outline my empirical findings with regards to the IND’s demands for a credible LGBTI(Q+) asylum narrative. The practices in which NGO workers engage to strengthen their clients’
narratives are described in the sixth chapter. In my final chapter, I answer my research questions.
Connecting my findings to existing literature, I argue that NGO workers co-create their clients’
asylum narratives to make them be perceived by the IND as ‘credible’. They do this from a
‘mediator’ position, in which they are positioned in-between the legal-institutional context of the asylum procedure and the life-as-lived experiences of their client. Ultimately, I argue that they engage in these narrative strengthening practices to make their clients’ LGBTI(Q+) identities
‘readable’ for decision-makers. I outline the contributions this research makes to existing literature, and provide recommendations for policy and practice. Finally, I reflect on how my thesis
demonstrates that the IND’s demands for a ‘credible’ LGBTI(Q+) asylum narrative are simply not attainable to all ‘real’ LGBTI(Q+) applicants.
Chapter 2: Theoretical framework
2.1 Introduction
In this section, I outline existing literature and concepts that informed my analysis. I focused my literature review on the asylum procedure in ‘Northern’ countries, as my research took place in the Netherlands. My research is embedded in scholarly works that discuss the making credible of LGBTI(Q+) identities within asylum applications. Furthermore, I draw on works that explore credibility in asylum applications more broadly, and I discuss ‘narrative’ as a useful theoretical tool to understand how credibility can be communicated in the asylum context. Subsequently, I outline previous research on the role of migration practitioners in communicating credible asylum stories.
Lastly, I offer a more detailed discussion on the research gap that this study addresses.
2.2 LGBTI(Q+) asylum seekers
There is a large body of scholarship on asylum procedures based on applicants’ sexual orientation, ranging from their legal to social and gendered aspects. This literature is often situated on an intersection between queer and migration scholarship. In this section, I look specifically at how scholars have previously discussed the ‘making credible’ of LGBTI(Q+) identities in the asylum procedure. For LGBTI(Q+) applicants, there is no ‘objective evidence’ of their sexuality. Credibility in LGBTI(Q+) asylum cases, therefore, becomes the crux of the Refugee Status Determination:
LGBTI(Q+) asylum seekers must make their sexual orientation ‘credible’ to prove that they belong to a persecuted social group and thus fall under the Refugee Convention (Murray, 2014).
Consequently, Selim et al. (2022) found that a lack of credibility is an often-cited reason to reject claims based on sexual orientation. One of the reasons why the authors found people to be perceived as untruthful is because decision-makers have certain assumptions about ‘true’
LGBTI(Q+) subjectivities (ibid.). Similarly, Berg and Millbank (2009) describe how “in the refugee context, it is always the decision-maker and not the applicant who has the power to name, the authority to decide who the applicant ‘really’ is and what sexuality ‘really’ means” (p.208). Because decision-makers decide whether someone receives asylum, their views on sexuality and credibility become the benchmark based on which LGBTI(Q+) applications are judged (ibid.). Brennan (2016) describes two assumptions underlying the asylum procedure for LGBTI(Q+) applicants: that decision-makers’ views on sexuality and persecution are universally applicable, and that decision- makers are able to recognize ‘real’ LGBTI(Q+) refugees when presented with them. However,
scholars found that various normative assumptions can prevent decision-makers from recognizing
‘real’ LGBTI(Q+) refugees.
2.2.1 The normative assumptions underlying (LGBTI(Q+)) asylum procedures
McKinnon (2009) argues that “asylum seekers who fit the normatively desired identities for citizen-subjects because of their race, gender, sexual orientation, education, linguistic fluency, or political clout are more easily recognized as viable political refugees and potential future citizens”
(p.206). In queer and feminist studies on migration, the process of bordering and allowing some to enter while refusing others is understood to be constituted by gendered, racialized, sexualized, and classist notions of who is ‘allowed in’ and who is not (see for example Luibhéid, 2002). Luibhéid (2002) describes how the hierarchical classification of bodies, who is ‘worthy’ to enter, originated in host countries’ histories of imperialism and nation-building. Perego (2017) argues that this classification creates normative conceptions of ‘acceptable’ refugees and citizens, making it harder for those falling outside the norm to become ‘understood’ as credible. These normative conceptions of ‘real’ refugees underlie the assessments and decisions made by both individual decision-makers and the assumptions made by the asylum system as a whole (Herlihy et al. 2010). These gendered, racialist, and classist assumptions also underlie what is seen as a credible asylum story. For
example, Herlihy et al. (2010) describe how “[t]he mother who leaves her children behind when she flees persecution is not readily believed” (p.354), because abandoning her children does not fit into decision-makers’ assumptions about ‘logical’ feminine behavior.
In this context, those who approach the norm of the cisgender, male, heterosexual political activist fleeing violence have a higher chance of having their stories understood as grounds for refugee status (Lewis, 2013; Perego, 2017). However, other researchers argue that ‘genuine’
refugees in media and political representations are often women, who are portrayed as vulnerable and in need of protection (Amores et al., 2020; Ticktin, 2011). Conversely, the dominant image of the ‘fake’ asylum seeker is usually male (Griffiths, 2015). McGuirk (2018) states that these gendered notions about who is ‘really’ deserving of protection “feminize LGBT asylum seekers, and in
particular gay men – who in governmental spaces are often seen as lacking credibility if they do not display suitably effeminate vulnerabilities” (p.9). LGBTI(Q+) asylum seekers thus find themselves in a double bind: they must present themselves as agentic enough to experience individual
persecution based on their sexual orientation, while also being vulnerable enough to ‘deserve’
protection.
Normative standards are especially dominant in LGBTI(Q+) asylum cases. Lewis (2014) argues that decision-makers’ image of a ‘real’ LGBTI(Q+) person is based on “neoliberal ideologies
of sexual citizenship that are racialized, classed, and gendered”; namely “Western stereotypes of male homosexual behavior based on visibility, consumption, and an identity in the public sphere”
(p.966; 962). From the literature, it emerges that a ‘credible’ LGBTI(Q+) subjectivity must be publicly displayed and an ‘immutable’ part of an applicant’s identity, which applicants ‘accepted’
after a linear ‘coming out’ and ‘self-acceptance’ process (Akin, 2017; Berg & Millbank, 2009;
Greatrick, 2019; Lewis, 2014). Berg and Millbank (2009) describe how this image is based on the (supposed) experiences of white gay men in the United States and does not necessarily apply to people from different backgrounds or with different experiences.
2.2.1.1 Performing credible LGBTI(Q+) subjectivities
As the credibility assessment is often based on these norms, it becomes necessary for LGBTI(Q+) applicants to ‘perform’ their sexuality to fit within decision-makers’ expectations (Brennan, 2016; Murray, 2014; see also Butler, 1990;). Akin (2017) found that LGBTI asylum seekers in Norway try to make their LGBTI(Q+) identity ‘readable’ for the decision-maker to be considered worthy of protection. She describes how applicants try to ‘translate’ their identities into one that might be considered credible by estimating what decision-makers deem a credible sexual identity (ibid.). She describes how applicants, to be recognized as LGBTI(Q+), start performing their sexualities publicly and visibly (ibid.). Similarly, Jordan (2009) outlines how applicants experience and negotiate more or less subtle pressures to present themselves ‘stereotypically’ in the asylum hearing, to improve their chances of being perceived by the decision-maker as ‘really’ LGBTI(Q+).
Miller (2005) summarizes the complexity of the LGBTI(Q+) asylum procedure as she describes how it is required to present a coherent identity to be perceived as ‘credible,’ while in reality sexuality is often a complex and incoherent experience, with different meanings for different people. Greatrick (2019) describes that people do not always define themselves as ‘LGBTI(Q+),’ but might still face persecution based on their sexual practices. To be granted protection in ‘Northern’ states, applicants must still present themselves as fitting into an LGBTI(Q+) identity that is in line with decision-makers’ expectations (ibid.).
Another way for asylum seekers to become ‘readable’ is done through what Luibhéid (2008) called “generating a racialist, colonialist discourse that impugns the nation-state from which the asylum seeker comes” (p.179). In this discourse, applicants must present their country of origin as
‘barbaric’ and the host country as ‘saving them’ (ibid.). In LGBTI(Q+) cases, scholars have argued that to be perceived as credible, applicants must reproduce a ‘homonationalist’ discourse in which the host country is ‘saving’ them (Bracke, 2012; Murray, 2014; see also Puar, 2007). Bracke (2012) describes how especially Dutch national identity has become constructed around homonationalism:
the idea that the Netherlands protects LGBTI(Q+) minorities, both citizens and refugees, against mostly Islamic ‘threats.’ However, Greatrick (2019) touches upon the deadly tension that exists when ‘Northern’ states want to protect LGBTI(Q+) refugees, while securitizing and policing their borders. The intensification of border control and securitization of Europe’s outer borders means that LGBTI(Q+) asylum seekers regularly risk their lives to reach Europe (Fargues, 2017; Greatrick, 2019; Vollmer, 2017). Once in the host country, they are subjected to an intense scrutinization of whether they are a ‘real’ refugee. As I discussed in this section, LGBTI(Q+) asylum seekers must present themselves as ‘credibly’ LGBTI(Q+) during the asylum procedure to actually receive protection. In the next section, I discuss research into the role of credibility in the asylum system.
2.3 The concept of credibility and its establishment in asylum procedures
Credibility in asylum cases has been often researched by legal and migration scholars. In asylum cases, the victims of persecution are required to convince decision-makers that their experiences, of which they often have little proof, constitute grounds for international protection (Kagan, 2015). In my research, I draw on two main aspects of credibility that emerge from the literature. The first aspect of credibility denotes an inherent property of a person or their story.
This is for example discussed by Kagan, who uses a 1988 handbook by the United Nations High Commissioner for Refugees (UNHCR) to describe the credibility of an applicant’s story as to whether it is “capable of being believed” (Kagan, 2015, p.127). The second aspect is evaluative:
credibility is always judged by someone else. This comes back in descriptions such as by Thomas (2006) and McKinnon (2009), who state that the assessment of the truthfulness of the story presented by the applicant is always done by asylum decision-makers.
Research on credibility within asylum procedures often focuses on how credibility is assessed. Thomas (2006) describes how in the legal procedure, decision-makers generally use three indicators to assess an applicant’s credibility: internal consistency, external consistency, and
“plausibility or apparent reasonableness or truthfulness of their claim” (p.81). Internal consistency refers to the absence of discrepancies within an applicant’s story (ibid.). External consistency in turn is the absence of discrepancies between the account an applicant provides and ‘objective external evidence’ such as country reports, as judged by the migration official (ibid.). Finally, plausibility is decided by the asylum decision-maker as the assumed likelihood that what the applicant narrates has happened (ibid.). Smith-Khan (2019) adds a crucial fourth dimension to Thomas’ (2006) credibility indicators: the non-verbal communication of the applicant, their
behaviors, and body language during the hearing, which must also be ‘credible.’ In the next sections
I outline research into the role of narratives in the asylum credibility assessment, as well as into the performance of that narrative during the asylum hearing.
2.3.1 The role of narrative in conveying credibility
Previous research into narratives in the asylum context, often in the fields of law and migration studies, draws on tools from the field of linguistics to understand “how and why certain stories are compelling and plausible and others are not” (Vogl, 2013, p.68). Narratives were found to be essential to convey asylum seekers’ identity and reasons for claiming asylum (Blommaert, 2001). An asylum seeker’s narrative is often the only ‘evidence’ they have, and the way they construct their narrative, and how it is perceived, is crucial for their credibility (Vogl, 2013).
Research into narratives looks at how people present their experiences. For example, Bruner (1991) distinguishes between ‘life as lived’, the events that someone experiences, ‘life as
experienced’, how someone gives meaning to these events, and ‘life as told’, how experiences are framed and conveyed to a specific audience in a specific context. This distinction is useful for understanding how asylum seekers must narrate their experiences in the asylum procedure: they must frame their ‘life as lived’ experiences in a ‘life-as-told’ way so that they are understandable to a decision-maker within the context of the Refugee Status Determination procedure (Holland, 2018). To be understood as a refugee, asylum seekers must thus choose which life experiences they discuss and convey them as having “a meaningful and coherent order” (Eastmond, 2007, p.250;
Holland, 2018). For the purposes of this research, a narrative is understood as the way applicants (try to) convey their ‘life as lived’ experiences in a ‘life as told’ manner, to be recognized as a refugee in the context of the asylum hearing (Holland, 2018). ‘Narrative’ as a concept is useful as it highlights how an asylum story is constructed and context-dependent (Vogl, 2013).
2.3.1.1 Credible narratives
Building on the discussions above on credibility and having defined narrative as a
theoretical tool, I will now describe what ‘credible’ narratives in the asylum context look like. There are a number of demands placed on asylum narratives to pass as ‘credible.’ To understand how a narrative is perceived as ‘true’, previous research has shown that what is expected in the asylum application process is a ‘good story’ (e.g. Brooks & Gewirtz, 1996; Holland, 2018; Vogl, 2013). Vogl (2013) found that an asylum narrative should be generally chronological and logically flow
between “the arbitrary points at which the decision-maker believes the story should begin and where it should end” (p.65). Similarly, Holland (2018) found that an asylum applicant needs to convey their experiences in the form of a ‘story’ that adheres to the standards of veracity in
literature: a narrative structure with a sequence of events logically following each other, which ends with a clear ‘plot’ or conclusion.
Having events ‘logically’ follow each other in a narration has also been called ‘coherence’
(Linde, 1993). From the literature, coherence emerges as an important requirement of a credible asylum narrative (e.g. Holland, 2018). Researchers found that another requirement for a credible asylum narrative is to include many details about experiences, including especially dates, names, and descriptions (Jacquemet, 2015; Shuman & Bohmer, 2004). Furthermore, credible asylum narratives must be without inconsistencies or contradictions within the story or between multiple recitals of the story, nor contain inconsistencies with external information (Herlihy et al., 2002;
McKinnon, 2009; Thomas, 2006). Discrepancies and incoherence are used as signals of dishonesty (Jacobs & Maryns, 2021). Lastly, the experiences an applicant describes must be ‘plausible’: the events described must be seen as probable and could reasonably have happened (Holland, 2018;
Shuman & Bohmer, 2004; Thomas, 2006).
A number of scholars describe that the cultural and legal-institutional context in which decision-makers evaluate applicants’ narratives is not the same as the one in which the narrative is told. Jacquemet (2015), as well as Gibb and Good (2014), describe that the different cultural background of applicants and decision-makers means they do not share a frame of reference based on which the meaning of concepts or experiences is understood. In this intercultural interaction, decision-makers are in the dominant position: how they understand an applicant’s narrative, with reference to their own frame of reference, is the basis for the decision of whether the narrative is
‘true’ (Jacquemet, 2015). Furthermore, Schroeder (2017) argues that narrative forms differ across cultures. However, in ‘Northern’ asylum procedures, ‘Western’ narrative forms are normative and applicants must adhere to these forms to be perceived as credible (ibid.; Holland, 2018). ‘Western’
narrative forms include demands for sequential stories and making contexts and details explicit (Schroeder, 2017). The asylum procedure takes place in a legal-institutional context, in which applicants’ narratives are judged based on whether they “fulfill the [legal] criteria” for protection under the Refugee Convention (Smith-Khan, 2017a, p.43). The legal nature of the procedure
dictates that applicants must use their narratives to provide ‘plausible evidence,’ preferably in legal language, that can be easily understood in light of the Refugee Convention (Vogl, 2013).
The asylum system is based on an assumption that ‘true’ refugees are able to speak and be understood as refugees under the Refugee Convention (Blommaert, 2001; McKinnon, 2009).
However, not only does this assume that applicants have an understanding of what is expected of them in the asylum procedure (Herlihy et al., 2010) and the necessary communicative resources to
present their story ‘intelligibly’ within the decision-makers’ legal and cultural context (Blommaert, 2001), but also that decision-makers can recognize a ‘true’ refugee in all their forms (Lewis, 2013;
McKinnon, 2009). However, as I described in section 2.2.1, the normative assumptions about who is a ‘real’ refugee can prevent those who fall outside the norms from having their accounts
understood as a credible asylum narrative.
2.3.1.2 Performing narratives
Credibility is not only assessed based on an applicant’s narrative, but also on how they convey that narrative during the asylum interview. ‘Performance’ is for the purpose of this research understood in line with Jacobs and Maryns (2021) as the presentation of the applicant’s self and narrative during the asylum hearing. Cabot (2013) outlines that this performance entails “intensive work that applicants put into becoming recognizable [as refugees] [as they] shift and adapt their own self-representations depending on the interactional context” (p.456). Scholars have studied demands on how an applicant should convey their narrative to be perceived as a credible ‘real’
refugee. McKinnon (2009) found that asylum seekers are expected to speak clearly and explain their experiences in wording that is understood by the courts during the asylum hearing. They should also exhibit emotions that seem congruent with what they are saying (ibid.). Furthermore, Smith-Khan (2019) discusses that non-verbal communicative clues, such as eye contact and body language, are used to assess an applicant’s truthfulness in the asylum hearing. However, these behavioral cues are rarely cited as explicit reasons for perceived (un)truthfulness but instead can affect the perceived credibility of an applicant or their narrative in general (Coffey, 2003).
2.3.1.3 The influence of trauma on credibility
A commonly researched factor that can influence the credibility of asylum seekers’
narratives and performance during the hearing is trauma. Trauma is especially relevant in the asylum context, as a number of asylum seekers are traumatized in their country of origin, during their journey, or in the asylum procedure (Li et al., 2016). Herlihy et al. (2002) found that
traumatized people often narrated their experiences inconsistently over the course of multiple interviews. Trauma was also found to impact timely disclosure of experiences in the asylum hearing (Bögner et al., 2007). Furthermore, trauma can impact how an applicant behaves and expresses their emotions (Rogers et al., 2014). Rogers et al. (2014) found that in the asylum context, decision- makers’ “bias towards looking for deception” (p.150), combined with an expectation that applicants exhibit ‘story-congruent’ emotions during their hearing, means that applicants with unconventional trauma responses (such as exhibiting numbness) can be perceived as less credible (ibid.). Lastly,
trauma can lead asylum claimants to avoid speaking about traumatic events or only describe them in general terms (Shuman & Bohmer, 2004). All these trauma-induced narrative and behavioral responses have been found to make applicants seem less credible in asylum procedures. In the next section, I discuss what role third parties play in creating ‘credible’ narratives.
2.4 The roles of migration practitioners
When looking at the role of non-state actors in the asylum process, there is a large body of literature that focuses on the role of NGOs and other civil society actors in providing (welfare) services and material support to migrants and refugees (e.g. Jubany-Baucells, 2002; Lau, 2019). For the purpose of this research, I focused on the role of non-state actors supporting asylum seekers with legal aid when preparing for the Refugee Status Determination procedure. Regarding the most common providers of legal aid in the asylum procedure, existing literature focuses on (pro-bono) lawyers, non-governmental organizations (NGOs), or a combination of the two. NGO-based legal aid can be necessary if the state does not provide asylum seekers with legal assistance, as private lawyers are not affordable for everyone (Cabot, 2013). However, in the literature, the preparation of asylum claims and the construction of cases is often only studied when it is done by lawyers (see e.g. Jacobs & Maryns, 2021). In the following section, I highlight two roles of legal aid providers in preparing for the Refugee Status Determination procedure that emerge from the literature:
mediation and narrative co-construction. The literature on these roles of legal aid providers will allow me to understand how legal aid provided by NGOs takes place and how this legal aid can affect an applicant’s claim.
2.4.1 Mediator role
Smith-Khan (2020) describes that one of the roles asylum lawyers fulfill is that of
‘mediator:’ “trying to translate what the client says into a format that will be digestible and understood by the decision-maker,” as well as explaining the procedure so that the client understands it (p.121). Hambly (2019) similarly found that asylum lawyers conceptualize their roles as translating clients’ experiences into legal language. Lawyers mediate between the ‘life-as- lived’ experiences of the applicant, and the legal-institutional demands for a credible narrative (Jacobs & Maryns, 2021). Furthermore, Greatrick (2019) discusses how NGOs providing legal aid to LGBTI(Q+) asylum seekers take up a mediatory role by unconditionally welcoming and supporting applicants with various and non-normative subjectivities, while also making their clients fit into the
“Northern sexual rights framework” to ‘pass’ the Refugee Status Determination process (p.102).
This intermediary role as a go-between the applicant and the decision-maker is also demonstrated
by Smith-Khan (2020), who found that lawyers assess their clients’ stories for credibility in a similar way that decision-makers do to be able to subsequently strengthen the claim. I use the notion of mediation in this thesis to highlight the in-between position that legal aid providers take, and the ‘translation’ they do as a result of that position.
2.4.2 Narrative co-construction
Both McKinnon (2009) and Smith-Khan (2017b) argue that the performance and final narrative of an applicant are constructed by multiple actors during the asylum hearing, as the decision-maker’s questions and interpretation of the answers co-construct the final narrative performance. Furthermore, Gibb and Good (2014) outline how the presence of an interpreter can affect how well an applicant’s story comes across, as interpretation often forced applicants to give short answers with little detail. They found that interpreters were not always able to translate ad verbatim in interviews due to different meanings of words across the cultural contexts of the decision-maker and the applicant (ibid.). Smith-Khan (2019) therefore argues that while sole authorship of an asylum narrative is attributed to the asylum seeker, the final narrative is the result of a process that involves multiple actors. A narrative is thus constructed and context-dependent, not a definitive ‘personal’ story (ibid.). Providers of legal aid fulfill a specific role in narrative co- construction, as they work to strengthen their client’s narrative to fit the requirements within the Refugee Status Determination process (see Jacobs & Maryns, 2021).
Jacobs and Maryns (2021) found that migration lawyers and counselors actively co-
construct an asylum seeker’s narrative to align it with the requirements of the asylum system. They state that “[i]n many cases, the asylum seeker’s truth, anchored in lived experiences, cannot stand as a credible account in the legal-institutional context” such that “asylum seekers are dependent on the support of others in the construction of their refugee identity” (p.23). I use narrative co-
construction in this research to mean the process of creating an asylum narrative that fits with decision-makers’ demands, done by multiple actors together (see Jacobs & Maryns, 2021).
Lawyers and counselors have more experience in legal processes and lower stakes in the outcome of an asylum claim (Smith-Khan, 2020). They therefore hold relatively more power in the application process than the applicant, as their interpretation of what constitutes a credible narrative can take dominance in shaping the applicant’s narrative (Jacobs & Maryns, 2021; Smith- Khan, 2020). The influence of lawyers on clients’ narratives can reduce the agency of the applicant in telling their story, as others make decisions for them about what is important (Smith-Khan, 2020; Vogl, 2013). McGuirk (2018) offers an empirical illustration of narrative co-construction in practice. Building on research into legal support for LGBTI(Q+) asylum seekers in the United States,
she describes how lawyers ‘rewrote’ a gay applicant’s story and told him to add more emotions, to fit him within “a script that adjudicators had historically accepted as authentic for other claimants”
(p.11). Through narrative co-construction, legal aid providers can thus make clients fit into
normative categories that are judged as ‘credible’ in the asylum system (Greatrick, 2019; McGuirk, 2018; Smith-Khan, 2020).
2.5 Research gap
Most of the literature on LGBTI(Q+) asylum seekers focuses on how applicants must make their identities credible and fitting with decision-makers’ norms (see Akin, 2017; Greatrick, 2019;
McGuirk, 2018). Little research has been done on how LGBTI(Q+) applicants can convey their identities by making their stories credible. The role of narratives in the asylum credibility assessment has been studied by various scholars, who found that to be considered ‘credible,’
applicants must present their lived experiences as a ‘good story’ that adheres to ‘Western’ narrative formats (see Holland, 2018; Schroeder, 2017; Vogl, 2013). While especially LGBTI(Q+) asylum seekers have no ‘objective evidence’ of their sexual orientation, there is little research on how narratives could be crucial tools for asylum seekers to convey credible LGBTI(Q+) identities.
Furthermore, there is little research on how NGOs providing legal aid shape their clients’
asylum narratives to make them ‘credible.’ Greatrick (2019) studied how NGOs that provide legal aid to LGBTI(Q+) asylum seekers ‘coach’ applicants to align their identities with what is expected to get asylum in ‘Northern’ countries. He found that these organizations instruct their clients on what to say in the UNHCR interview to ‘pass’ as credible and be accepted as a refugee (ibid.). However, he does not outline what these instructions entail and how they affect the applicant’s story. Jacobs and Maryns (2021) and Smith-Khan (2020) describe more in detail how lawyers shape and assess their clients’ narratives. However, there is little research on whether NGO workers engage in similar practices as lawyers, nor is it known how legal aid can influence LGBTI(Q+) applicants’ narratives to be perceived as ‘credible’ by decision-makers. To address these gaps in knowledge, I researched how NGOs support LGBTI(Q+) asylum seekers to develop a credible narrative to convince decision- makers of their sexual orientation in a repeated asylum claim.
2.6 Conclusion
In this chapter, I outlined the debates and theoretical tools on which I draw for my research.
I described how LGBTI(Q+) asylum seekers’ credibility is judged based on gendered, racialized, classist, and culturally specific assumptions about ‘real’ LGBTI(Q+) refugees. Applicants who fall
outside these norms are not always recognized as ‘really’ LGBTI(Q+), leading to the rejection of their asylum claim. I discussed how credibility is essential in the asylum procedure, and how presenting lived experiences in the expected narrative format can help applicants appear credible. I further described how migration practitioners can ‘co-construct’ their clients’ narratives to make them ‘credible’ within the requirements of the legal-institutional context, and how they fulfill a mediator role. Lastly, I outlined the research gap that I address with this research. In the next chapter, I describe the context in which I conducted my research.
Chapter 3: Context
3.1 Introduction
In this chapter, I describe the context in which this research took place. I first sketch the legal-institutional context of the asylum procedure. I then describe how this procedure works for LGBTI(Q+) applicants, how a repeated asylum claim works, and what happens if someone’s claim is rejected. Subsequently, I outline the societal context for migrants without legal residency in the Netherlands, such as rejected asylum seekers. I describe their rights and policies that affect them, the societal support field, and how NGOs support them.
3.2 The Dutch asylum procedure
In the Netherlands, the asylum application procedure is the responsibility of the Ministry of Security and Justice. The executing body of migration policy is the Immigration and Naturalization Service (IND) (Rijksoverheid, n.d.-a). According to the latest report published by the Dutch
government, there were a total of 19,610 asylum requests in 2020 (Ministerie van Justitie en Veiligheid, 2021). 13,670 of those were first requests and 1,600 were repeated asylum requests (ibid.). In 2019, there were 31.340 asylum requests in total, but 75% of the first requests that were decided upon that year were rejected (ibid.)6. In 2019, 2.720 people filed a repeated asylum claim, more than in 2020 due to the impact of the Covid-19 pandemic on the IND’s administration (ibid.).
To request asylum in the Netherlands, people have to go to the ‘application center’ in Ter Apel where their personal data is registered (Rijksoverheid, n.d.-a). An asylum seeker has three main moments of contact with the IND: the application, the first reporting interview, and the second, detailed interview (IND, n.d.). During the application, asylum seekers sign their request for protection, identify themselves, and are registered (ibid.). The IND checks whether someone falls under the Dublin III convention7 by seeing whether their fingerprints have been registered in Eurodac, the EU-wide fingerprint database (ibid.). This check is to ascertain whether the Netherlands is responsible for processing the asylum claim (Rijksoverheid, n.d.-a).
6 There are long waiting times in the asylum system. The claims that were decided upon in 2019 were therefore most likely requested in preceding years.
7 This EU Convention states that the country where asylum seekers first arrives is responsible for processing the asylum claim (Rijksoverheid, n.d.-d). However, the convention has been argued to lead to inequalities between EU countries, as more people arrive in Southern European states than in Northern European states (Kuster & Tsianos, 2016).
Generally, three days after the registration an asylum seeker has their first interview with the IND to establish their identity, nationality, family, work, educational history, travel journey, and briefly the reasons for requesting asylum. Documents and evidence that the asylum seeker
possesses are registered by the IND (IND, n.d.-a). After this first interview, the asylum seeker waits in an AZC (asylum seeker center) until the actual procedure starts. While this ‘rest and preparation’
time is officially ‘at least’ six days, in practice the waiting time can take months or even years (IND, 2022). These long waiting periods are generally considered to be the result of understaffing and a lack of resources at the IND, which also leads to a high workload among decision-makers (RTL Nieuws, 2022).
After this waiting period, most applicants start with the so-called General Asylum procedure, which usually takes six days (IND, n.d.-a). On the first day, asylum seekers have their detailed interview about their reasons for requesting asylum (IND, n.d.-a). This is where applicants explain their asylum story in detail. In this thesis, when I discuss ‘the asylum hearing,’ I am
referring to this detailed second interview. The applicant tells their story, usually through a translator, to one ‘hearing official’ from the IND, who is asking questions and taking notes at the same time (Inspectie Justitie en Veiligheid, 2022). The interview is not recorded but the hearing official types out their notes into a report, based on which either the same official or a colleague will take the decision (ibid.). At the interview, usually the only ones present are the asylum seeker, the
‘hearing official’, a translator, and, upon the applicant’s request, a volunteer from the NGO
VluchtelingenWerk Nederland (Refugee Council Netherlands) (VluchtelingenWerk, n.d.). The NGO volunteer is only allowed to make observations about the course of the interview and the behavior of the applicant, which they can later give to the applicant’s lawyer.
Four to five days after the interview, the IND decides whether they accept or reject someone’s claim immediately, or whether they need to evaluate the claim in an ‘elongated’
procedure, which can take up to six months more (IND, n.d.-a). From my fieldwork, I learned that an applicant’s lawyer is not allowed to speak for their client at the interview. Instead, lawyers are involved in the preparation for the interview, in providing additions to the interview report made by the IND official, in providing a ‘counter-view’ if the IND expresses an intention to reject, or in an appeal procedure if someone is rejected (see also VluchtelingenWerk, n.d.).
A few NGO workers I spoke to criticized the long waiting periods and the speed with which the actual procedure takes place. Their criticisms were exemplified by Paulien (social-legal worker, MigrantNetwork), who stated that in the long waiting period applicants can forget details they need to provide in the asylum interview. She also described that there is little room for lawyers to fix
misunderstandings in their clients’ interviews or find proof for elements that the IND does not believe, as lawyers in the General Asylum procedure only have one day to provide their ’counter- view.’ Furthermore, a recent inspection report found several issues in the asylum procedure. The inspection describes how time pressures, understaffing, high workloads, and sometimes a lack of information can lead decision-makers to take subjective decisions (Inspectie Justitie en Veiligheid, 2022). Decisions can thus sometimes be based on decision-makers’ (subconscious) views about the case or the applicant.
3.2.1 LGBTI(Q+) asylum seekers
The European Court of Justice decided that LGBTI(Q+) asylum seekers can qualify for refugee status protection if they are persecuted in their country of origin based on their belonging to the LGBTI(Q+) ‘social group’ (Jansen, 2018). The IND does not register on what grounds people request asylum, so there are no official numbers on how many people request asylum based on their sexual orientation. In 2011, Jansen and Spijkerboer (2011) estimated that around 200 people per year apply for asylum in the Netherlands based on a fear of persecution for their sexual
orientation or gender identity in their countries of origin. The Dutch state has long portrayed itself as ‘tolerant’ for LGBTI(Q+) minorities, and a safe space for LGBTI(Q+) asylum seekers (Buijs et al., 2012). However, an institutional fear of ‘fake’ refugees getting residency in the Netherlands has led the IND to try to establish who is ‘really’ LGBTI(Q+) and thus deserving of protection on these grounds (Jansen, 2018).
For LGBTI(Q+) cases, generally seen as complex, the responsible IND hearing- and decision- official must consult an ‘LGBTI coordinator’, “an experienced or senior official [who] was selected to be LGBTI […] coordinator next to their primary activities” (Inspectie Justitie en Veiligheid, 2022, p.26). A few participants told me that they believed neither the hearing officials nor the
coordinators are necessarily aware of debates around non-normative sexualities, and that there is little extra training for employees to deal with these kinds of cases. The ‘coordinators’ were part of the various improvements in the asylum process for LGBTI(Q+) applicants that have happened since Jansen and Spijkerboer (2011) and Jansen (2018) researched the IND’s handling of
LGBTI(Q+) cases. The IND can no longer reject cases based on stereotypical assumptions, they must now weigh declarations from third parties, and it is officially no longer necessary to have an
‘internal struggle’ in which the applicant came out as LGBTI(Q+) or ‘accepted themselves’ (see IND, 2019).
Nonetheless, it remains difficult to establish someone’s sexual orientation through an asylum interview. Jansen (2018) saw that in her sample of 267 LGBTI(Q+) cases in the Netherlands,
37% were rejected, the vast majority (76 out of 85 cases) because their sexual orientation was not believed. Andrade et al. (2020) found that out of the surveyed LGBTI(Q+) refugees in various European countries who had their claim accepted, 31% were initially rejected, and only granted refugee status after winning their appeal. 32% of the people they surveyed whose claim was
ultimately rejected said that it was because the country’s migration authorities did not believe their sexual orientation. Jansen and Andrade et al. both demonstrate that it can be difficult for migration authorities to establish someone’s sexual orientation, and people can be wrongfully rejected in the asylum procedure. In chapter five I will delve deeper into the expectations for LGBTI(Q+) asylum seekers, and why some people get wrongfully rejected.
3.2.2 Repeated asylum claims
If someone’s claim is rejected or their refugee status withdrawn, they can do a repeated asylum claim, in Dutch ‘Herhaalde Asielaanvraag’ (by participants generally referred to as HASA). A
condition for doing a HASA is that there are “new facts or circumstances […] that you could not share during your previous asylum procedure” (IND, n.d.-b). This includes changes in the circumstances in someone’s country of origin, new evidence, or changes in Dutch policy or
jurisprudence after the last claim was decided (ibid.). These new facts or circumstances are called a
‘novum’ (novelty). Interviewees expressed that it is often hard to find a novum that qualifies for a repeated claim, as the asylum seeker needs to demonstrate why it was impossible to present this evidence during the first procedure (Baldinger, 2015). Further, all the testimonies and decisions of earlier procedures are considered factually and legally true and are not further discussed (IND, n.d.- b). LGBTI(Q+) applicants often struggle with what kind of ‘evidence’ they could submit to constitute enough of a novum for a HASA, as their first claim is usually rejected based on the ’unbelievability’ of their narratives. NGOs can provide support to find ‘evidence’ and help applicants navigate the legal procedures for a repeated claim, which I describe in chapter six.
3.2.3 If an asylum claim is rejected
People have a 28-day period to leave the Netherlands if their (repeated) asylum claim is rejected (Rijksoverheid, n.d.-c). In these 28 days, they continue to receive food and shelter from the government while working on their return (Rijksoverheid, n.d.-b). If a person does not leave within this period, then the Repatriation and Departure Service (DT&V) can take charge, by attempting to secure travel documents or placing someone in detention if they suspect someone plans to stay
‘illegally’ (Amnesty International, n.d.-a; Rijksoverheid, n.d.-b). Sixty percent of people whose
asylum or residency claim is rejected leaves their last-known address without the government knowing where they go (IND, 2021b). This includes people that leave the country unsupervised, but also people who stay in the Netherlands without authorization (Amnesty International, n.d.-b).
Anyone that stays in the Netherlands without a residency permit is considered ‘undocumented.’
Van der Heijden et al. (2020) state that in 2009 an estimated 65% of undocumented migrants in the Netherlands had gone through an asylum procedure in the previous four years. They estimated that around 2018, between 23.000 and 58.000 undocumented migrants were staying in the Netherlands (ibid.). However, it is complicated to count undocumented migrants, and estimates vary.
3.3 Migrants without legal residency
3.3.1 Policy and rights for undocumented migrants
From the 1990s onwards, the Dutch government has implemented an active
‘discouragement policy’. This policy is aimed to complicate and discourage undocumented
residency (Kromhout et al., 2008). This discouragement is especially visible in the 1994 mandatory identification law and the 1998 ‘Koppelingswet’ (linkage law), which makes it impossible to access a number of basic services, such as a bank account, social housing, or welfare benefits without documentation (van der Heijden et al., 2020). As undocumented migrants are not by law protected, they are vulnerable to exploitation and often do not have a safety net when they lose their jobs or housing (van Meeteren & Wiering, 2019).
Undocumented migrants in the Netherlands do not have the right to shelter or government support to buy food or clothing (Amnesty International, n.d.-a). Only if they agree to actively cooperate with their deportation they can access temporary shelter in a closed government facility (a ‘freedom restricting location’) (ibid.). Other undocumented migrants are largely dependent on illegal work or NGO support to access food, shelter, and other essential items. Undocumented migrants under 18 have the right to shelter as well as education in the Netherlands (ibid.). Further, all undocumented migrants have a right to legal counsel, for which they can receive financial support (ibid.). Lastly, undocumented migrants have the right to ‘medically necessary health care’
in the regular Dutch health care system (ibid.). However, the access of undocumented migrants to the Dutch health care systems is often still complicated (Biswas et al. 2012).
3.3.2 The LVV program
Dutch policy for undocumented migrants is made nationally but implemented and executed in municipalities. In 2019, a pilot project called ‘Landelijke Vreemdelingen Voorziening’ (National Services for ‘Aliens’) (LVV) started in five cities: Amsterdam, Rotterdam, Utrecht, Groningen and Eindhoven (Hermens et al., 2021). This program aims to improve collaboration between
government parties like the IND and DT&V, municipalities, NGOs, and other stakeholders (ibid.). In an intake, NGOs assess whether an undocumented migrant has ‘perspective:’ on a residency permit, return to the country of origin, or migration to a third country (Lassche, 2019). After this intake process, undocumented migrants are given shelter, money for basic needs, and social-legal support to work towards one of these ‘sustainable outcomes’ (Hermens et al., 2021). The shelter and support are often provided by NGOs, but they receive a large part of their budget from subsidies from municipalities. Not everyone is allowed to access the LVV program, and people can be banned because they have a Dublin claim, an entry ban or criminal record, or no ‘perspective’ (Hermens et al., 2021). The NGOs generally have separate funds and private shelter locations to provide support for the people outside of their LVV mandates. Most organizations in my research are based in Utrecht, but I have talked to organizations in two other LVV cities to compare contexts. In Utrecht, there is no maximum duration of the support participants receive (Hermens et al., 2021). The longer duration helps to build a trust bond between the NGO worker and the client and to create enough time for NGOs to find necessary evidence (ibid.). The NGOs in the LVV in Utrecht often aim to get people a residency permit, while in other cities there is more focus on voluntary return (ibid.). 51% of the people that finish the LVV program in Utrecht start a repeated asylum claim (ibid.).
3.3.3 NGOs supporting undocumented migrants
In general, NGOs provide basic services for undocumented migrants. Leerkes (2016) describes how in the Netherlands, civil society actors provide a basic level of care for
undocumented migrants, creating a system of ‘secondary poor relief’ outside the state. I found that these initiatives are often funded through subsidies, private funds, and donations. There are several organizations in the Netherlands that supply services such as shelter, food, advocacy, and support for accessing healthcare (Stichting LOS, n.d.-b). These organizations include NGOs, churches, and organizations created by (undocumented) migrants themselves (ibid.). Most organizations provide a combination of these services. Similar to what Schweitzer (2017) found in the UK and Spain, Dutch NGOs play a vital role in granting undocumented migrants access to the (public) services that they are entitled to, such as healthcare. Some organizations focus on researching the situation of
undocumented migrants and lobbying for the improvement of their rights (see also: Amnesty International, 2010; Stichting LOS, n.d.-a). The lobby activities include contacting politicians and policymakers (see van Schaik et al., 2021). Many organizations combine providing individual support with lobbying activities.
Lastly, various of these organizations help undocumented migrants with legal proceedings and formalities. The organizations I spoke with collect evidence for a residency permit application or asylum claim, and connect people with migration lawyers and other support organizations. If they do not see possibilities for legal residency, they can talk to people about possible return and support them in accessing (financial) resources for returning. Most of the organizations I spoke with work with a caseload structure: longer-term clients get a ‘contact person’, who keeps track of their legal procedures, their placement in a shelter, or who can help them access medical
treatments. Contact persons often arrange their clients’ social and financial support, such as a living allowance, access to food banks, or signing clients’ children up for school. Most organizations also run office hours to provide non-clients with legal advice. The variety of activities and limited funds often results in a high workload for NGO workers.
3.3.4 Solidarity with Undocumented Migrants
