Refugee Claims Based on Persecution Due to Sexual Orientation before the Court of Justice of the European Union (original) (raw)
Related papers
An exercise in detachment: the Council of Europe and sexual minority asylum claims
Queer migration and asylum in Europe, 2021
This contribution explores how the Council of Europe (CoE) – and the European Court of Human Rights (Strasbourg Court), in particular – have addressed the increasing number and complexity of applications involving sexual minority asylum claims (SMACs). The law and policy produced by the CoE and the jurisprudence of the Strasbourg Court immensely influence how domestic authorities address SMACs, so it is crucial to have a thorough understanding of this framework. Indeed, the CoE has acquired a progressively significant role in the field of asylum. Although it does not have an asylum policy as such, several of its bodies have taken a noteworthy role in this field, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Strasbourg Court, above all, along with the now extinct European Commission of Human Rights, developed a strong line of jurisprudence that applies the European Convention on Human Rights (ECHR) to asylum claimants, despite the ECHR not possessing any norm explicitly related to asylum. More specifically, the Strasbourg Court was the first judicial instance at a European level to decide on cases relating to SMACs. It has so far dealt with at least 23 separate cases of asylum on grounds of sexual orientation. Many of these cases led to contentious and inadequate decisions, such as the 2014 judgment in M.E. v. Sweden, which gave legitimacy to the idea that applicants can be sent back to their countries of origin and asked to be ‘discreet’ about their sexuality. This approach reflects a worrying detachment from the realities of sexual minorities in many countries around the world and from their experiences when claiming international protection in Europe. This contribution thus critiques the CoE policy and Court’s jurisprudence in this field, whilst advancing policy and legal recommendations that can adequately address the socio-cultural and sexual diversity of asylum claimants from a queer intersectional perspective.
2018
I.INTRODUCTIONIn November of 2016, mattresses were scarce in Sweden's IKEA headquarters.1 At first glance it appeared Christmas shopping was already under way, but, in fact, these mattresses went to refugees.2 The migration crisis in Europe has captivated the world's attention and concern.3 In 2015 over one million migrants reached Europe constituting the largest mass migration since the end of the Second World War.4 This figure is a four-fold increase from 2014 caused mainly by Syrians fleeing civil war.5 This, amongst other conflicts in the MENA region, is noted as the principle reason why migrants and refugees are fleeing their home countries with hopes of reaching Europe.6 A less well-known factor is the social norms and persecuting tendencies of sovereign governments and private citizens against minority social groups.7 Lesbian, gay, bisexual, transgender, and queer ("LGBTQ") individuals face persecution and discrimination by sovereign governments throughout t...
Queering Asylum… or Human Rights in Europe
ADiM Blog, 2021
After 70 years since the conclusion of the Convention relating to the status of refugees, the process of ‘queering’ asylum law is beyond doubt, as we have explored in The Oxford Handbook of International Refugee Law(Chapter 4). This process of ‘queering’ asylum law has certainly reached its highest peak in Europe, where the needs of people claiming asylum on grounds of sexual orientation and gender identity (SOGI) are increasingly taken into account in law and practice. Yet, a four-year research project carried out across the EU has found that a range of issues remain problematic, or even unaddressed, in this field. These include: the lack of information on SOGI as grounds to claim international protection at arrival to Europe; the lack of specific procedural arrangements, including the choice of the interviewer and of the interpreter, and of appropriate reception conditions; a persistent culture of disbelief and the use of stereotypical views on sexual and gender minorities during the adjudication process of asylum claims; and the misuse and low quality of Country of Origin Information. Some of these problems could be addressed in the context of the current reform of EU asylum law, given the need to improve the Common European Asylum System in this respect. However, such a reform might not be enough, especially if we consider the evolution of European human rights law in relation to SOGI asylum.
LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective, 2018
The 1951 Refugee Geneva Convention relating to the Status of Refugees defines the different grounds upon which a person can be recognized as a refugee. However, throughout the years, different reasons of persecution have emerged which were not envisaged by its drafters. Traditionally, these claims have been recognised under the membership of a particular social group ground. This is also the case of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people. When transposing the Qualification Directive 2011/95/EU-recast into their legal systems, some European Union Member States do not explicitly foresee sexual orientation or gender identity as a ground for asylum. This paper aims to analyze what different social group ground approaches exist and what impact these approaches have had on LGBTI asylum cases, as well as to determine the potential role that the interpretation has on them.
2016
Recently, more and more countries have recognised sexual orientation as a ground for asylum. This has led to a shift from rejecting such claims because of a lack of recognition of the ground under asylum law to a "culture of disbelief" of the applicant's claimed sexuality. When assessing the credibility of the claimant's sexual orientation, case workers and judges often take an approach loaded with heteronormative and culturally insensitive stereotypes of homosexuality. This thesis uncovers how the history of sexual orientation asylum claims has led up to a very recent judgement by the Court of Justice of the European Union (ABC) that puts an end to the most evident human rights violations in credibility assessments. Furthermore, this thesis postulates that the problems that still prevail in the aftermath of this judgement are conceptual. The misconception lies in focusing on assessing the true sexual orientation of the applicant rather than the perceived difference and persecution. This thesis has a strong theoretical focus and argues for a radical shift away from trying to prove the sexual orientation of asylum applicants by re-interpreting the concept of sexual orientation in European asylum law in the light of queer theory, intersectionality and international human rights standards.
The Ordeal for Humanity: LGBTI Asylum Seekers in Europe Facing the Limits of Human Rights
What’s “human” in the human? What makes a living being a human being? In case of doubt, who decides whether a living being is a human being? A liberal political culture based on the value of human rights cannot avoid these questions. This article will use different interpretative frames (Thomas Hobbes, Michel Foucault, Leo Bersani, Giorgio Agamben, Judith Butler, Lee Edelman, Jasbir Puar) in order to give account of the permanence of a sovereign decision on the human in the biopolitical governance of the present. The condition of African lesbian, gay, bisexual, transgender, and intersex asylum seekers in Europe is exemplary of this. Persecuted in their countries for their sexual orientation or gender identity, in many cases they cross the Mediterranean on makeshift boats to land – twist of fate – on the same islands where Italian Fascism used to confine homosexual men. There they are “received” in camps for illegal immigrants where their full humanity, denied by their countries of origin, will be taken into exam by a commission. Only if recognized as authentic members of a sexual minority, they will benefit the totality of human rights in Europe. Otherwise, they risk to be forced away from Europe – and from humanity. Far from being a voyage of hope from barbarity to modernity, their journey from Africa to Europe turns into an archaic ordeal.
The paper explores the right of non-discrimination on the ground of sexual orientation from the perspective of the European Union. In the first part, it analyses how Member States address the issue and EU citizen’s perception on the topic. Then, using a ECJ case law, the paper analyses EU legislation and how it interacts with national systems, highlighting the means by which EU citizens can act in order to see their rights respected. The paper also explores the gaps present in EU legislation and how these gaps could affect the fruition of the rights bound to EU citizenship. The paper concludes that despite the presence of important gaps and limitations deriving from the Treaties, the European Union’s institutions, and in particular, the European Court of Justice play a fundamental role in the expansion and the respect of these rights.
Gender, sexuality, asylum and European human rights (to be published in Law & Critique)
Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.