11-7-2012By Duncan Breen
Refugee Protection Program
The U.N. Refugee Agency (UNHCR) recently issued new Guidelines on International Protection for people seeking refugee status due to persecution on the basis of sexual orientation and/or gender identity. The Guidelines – which are intended to assist governments, legal practitioners, judges and UNHCR staff in conducting refugee status determinations – are a welcome step.
As noted in the new guidelines, “[i]t is widely documented that LGBTI individuals are the targets of killings, sexual and gender-based violence, physical attacks, torture, arbitrary detention, accusations of immoral or deviant behavior, denial of the rights to assembly, expression and information, and discrimination in employment, health and education in all regions around the world.”
Reviewing human rights and refugee law, the new guidelines make clear that LGBTI individuals can be eligible for refugee status when they meet the relevant criteria. They provide detailed analysis of the substantive legal issues, as well as explanations of terminology which may be unfamiliar to some adjudicators.
Importantly, the Guidelines confirm the following point:
That an applicant may be able to avoid persecution by concealing or by being “discreet” about his or her sexual orientation or gender identity, or has done so previously, is not a valid reason to deny refugee status. As affirmed by numerous decisions in multiple jurisdictions, a person cannot be denied refugee status based on a requirement that they change or conceal their identity, opinions or characteristics in order to avoid persecution. LGBTI people are as much entitled to freedom of expression or association as others.
The Guidelines also recognize that “[w]here an individual seeks asylum in a country where same-sex relations are criminalized, these laws can impede his or her access to asylum procedures or deter the person from mentioning his or her sexual orientation or gender identity.” The Guidelines point out that criminal laws prohibiting same-sex relations can lead to threats of prosecution, be used for blackmail or extortion purposes by the authorities, promote political rhetoric that can expose individuals to risks of harm, and hinder people from seeking and obtaining state protection.
The Guidelines recognize in countries that criminalize same-sex relations, it may be necessary for UNHCR to become directly involved in the case “including by conducting refugee status determination under its mandate.” In a report issued in May 2012, Human Rights First highlighted the challenges faced by LGBTI asylum applicants in seeking asylum in states that criminalize same-sex relations where such states are responsible for refugee status determination.
The Guidelines also review legal issues relating to “internal flight or relocation alternatives,” Sur place refugee claims, and discrimination amounting to persecution in particular cases. The Guidelines address procedural issues such as specialized training for adjudicators; the need to establish trust, avoid basing decisions on stereotypical behaviors, and use non-offensive language; as well as honoring requests regarding the gender of interviewers or interpreters. The Guidelines also make clear that medical “testing” of the applicant’s sexual orientation – a practice highlighted in a December 2010 report issued by the Organization for Refuge, Asylum, and Migration – is an infringement of basic human rights and must not be used.
We welcome these Guidelines and encourage more states to recognize asylum applications based on persecution due to sexual orientation and/or gender identity. We encourage UNHCR to develop strategies, which may include granting refugee status under UNHCR’s mandate, to ensure that LGBTI applicants fleeing persecution can access international protection – even in countries that criminalize same-sex relations – in order to find durable solutions.