Asylum in Europe
Why is it important to work on asylum for LGBTI people in Europe?
Imagine being so fearful, so worried about your own safety and that of your family members that you are willing to leave your home, belongings and everything you have ever known behind. Now imagine experiencing all of that just because of who you love and who you are.
That is the bleak scenario faced by those seeking refuge based on their LGBTI status. According to ILGA World’s latest report on state-sponsored homophobia, 78 countries in the world still criminalise people on the basis of their sexual orientation and five of these countries apply the death penalty for this “crime”.
As a result, many LGBTI people decide to flee from their homes to countries where human rights of LGBTI people are generally more respected. Some choose to flee to Europe.
However, seeking asylum in Europe can be a complicated and daunting process.. The unique problems faced by LGBTI people from third countries do not dissolve when they cross European borders. When you seek asylum on the basis of your sexual orientation, gender identity or sex characteristics, the asylum system can be even more challenging.
What issues might LGBTI asylum seekers face?
Unfortunately, the asylum legislation and policies in some European countries can pose specific problems for LGBTI asylum seekers. Moreover, the authorities’ lack of experience and professionalism in dealing with such refugee status applications can bring additional problems. Problems that LGBTI asylum seekers face are:
- The fact that national asylum legislation provides for insufficient protection or specific measures protecting LGBTI asylum seekers, despite the European legislation and resolutions that have been adopted over the past years.
- Insufficient respect for the right to privacy and for the right to human dignity in assessing the asylum claim. National authorities are allowed to assess the credibility of the statements made by the asylum seeker, but these assessment procedures should not violate the applicant’s rights to human dignity and private and family life. Questions about sexual practices and “tests” to confirm one’s sexual orientation have been explicitly forbidden by the Court of Justice of the EU in December 2014.
- Little or no consideration of taboo or stigmatisation in the countries of origin, which can lead to asylum seekers not revealing their sexual orientation or gender identity right from the beginning of the asylum procedure. Late disclosure often leads to rejection of the claim, even if the Court of Justice of the EU has ruled that this cannot be a sufficient reason to refuse a refugee status application.
- Lack of country-of-origin information. The authorities’ information on persecution of people on the bases of sexual orientation and gender identity is often out-dated and incomplete.
- Lack of sensitivity and training of asylum personnel, which can lead to a misjudgement of the credibility of the refugee status application.
- LGBTI asylum seekers may face a high level of discrimination, taboo and violence in reception centres. For this reason they will often have special reception needs.
What are the European institutions doing?
The European Union has been keen to set high standards for inclusive and sensitive asylum procedures for LGBTI asylum seekers. This is especially true after the adoption of the Lisbon Treaty, and the negotiations on the second phase of the Common European Asylum System (CEAS) which ended in 2013. This instrument has specific references to LGBTI asylum seekers. Also, the European Commission is monitoring how this is being translated into national law; and the Court of Justice of the EU now has the power to ensure the application of European refugee law by Member States.
In 2011, the European Union adopted the Recast of the Qualification Directive, recognising that persecution based on a person’s sexual orientation or gender identity is a valid ground to be granted asylum. Further, the Asylum Procedures Directive and the Reception Conditions Directive, both adopted in 2013, include obligations for EU Member States, particularly in terms of training asylum staff and providing for adequate reception conditions.
The Court of Justice of the EU ruled in 2014 in the case of A,B,C stressed that methods used to confirm an applicant’s sexual orientation must not infringe their fundamental human rights and condemned the use of ‘tests’ and stereotypes in assessing the request for asylum.
The Council of Europe has adopted various resolutions and paragraphs related to LGBTI asylum seekers – most notably, the Recommendation of the Committee of Ministers on LGBT rights from 2010. However, none of these are binding.
How does ILGA-Europe work on asylum?
LGBTI asylum seekers should be treated fairly and in a dignified manner. ILGA-Europe is working towards full implementation of European and international standards relating to asylum. In addition, we focus on strengthening these standards in relation to sexual orientation, gender identity and gender expression where necessary.
In October 2015, at our Annual Conference in Athens, ILGA-Europe issued a declaration of solidarity with refugees and asylum seekers. It stresses the unique vulnerabilities faced by LGBTI refugees and asylum seekers and details the steps that European and national authorities should take to protect them.
At national level, we aim to equip our members with the skills and information needed to work on the implementation of EU instruments. We therefore identify and disseminate good practices across the 28 Member States.
Finally, ILGA-Europe supports litigation before European courts, by facilitating training on this issue to member organisations and by submitting third party interventions with partner organisations.
What does ILGA-Europe not do?
ILGA-Europe does not provide assistance in individual asylum applications. Unfortunately, we do not have the resources and expertise to work on individual cases and emergencies, as dramatic as they often are. Assisting individual asylum seekers requires a deep knowledge of national asylum law, which varies greatly from country to country. Our national member organisations are the best partners in asylum cases, and we will be happy to refer you to them:
- If you require advice or assistance with your own asylum claim, please click here for a list of organisations in your country who may be able to help.
- If you are working for a national member organisation, read more about good practices on dealing with individual cases of LGBTI asylum seekers and emergencies here. [subsection coming up]
ILGA-Europe resources on asylum
For more information, contact Jules Toeh, Advocacy Officer.