Why Figures Matter

Syrian refugees rescued in the Mediterranean Sea by the Italian navy, UNHCR

This week, a number of newspapers once again published stories that “up to 600,000 people are estimated to be waiting in Libya” to cross the Mediterranean to enter Europe. There is no question that the number of asylum seekers – many from Syria – who are crossing into Europe by boat through a variety of routes has increased dramatically. Italy, for example, estimates they have already received 50,000 asylum seekers since the start of the year. And as the numbers have increased, so too have deaths at sea. The Migrant Files, an on-line database, has found that more than 23,000 migrants have died en route to Europe since 2000.

But we should always be concerned about large figures of would-be migrants being quoted. With the end of the Cold War, the British Home Secretary, Kenneth Baker, claimed that 7 million Soviet citizens would want to work in the west, and that “many might seek to use the asylum route and, indeed, it would be naïve to think otherwise.” That flow, needless to say, never happened.

There are similar questions around this figure of 600,000. The first issue is who made the claim. It was first made by Italy’s Interior Minister Angelino Alfano in April, though widely reported since as being from unnamed government officials, such as “European authorities” in the Guardian’s story. Further, Alfano’s claim was significantly more hedged. He stated: “According to our information between 300,000 and 600,000 people are on the other side of the Mediterranean on the North African coastline, waiting to cross sooner or later.” But, beyond his claim, there is little evidence to support it. Apart from the fact this suggests huge numbers of asylum seekers are patiently waiting in a country that is on the brink of a renewed civil war, there is simply no evidence this population exists. UNHCR’s current estimates have 30,000 refugees and 60,000 IDPs in Libya – a sixth of this figure.

Further, it is very much in Italy’s interest to play up these claims. The government has been seeking to get an expanded EU response by arguing that migration across the Mediterranean is a European issue, not just an Italian one. Alfano has noted that “the Mediterranean is not an Italian border but a European border” while Italy’s Foreign Minister Federica Mogherini has stated “we must collaborate with our European partners to manage the flow of people crossing the Mediterranean.”

This figure is also now being used as a pretext to reconsider processing centres outside of Europe to deal with asylum seekers. Flavio De Gaicomo from the International of Organization, for example, has suggested “maybe we could establish migrant centres in their own countries to give them the possibility to find legal ways of entering Europe. This kind of solution must be taken into account. They should be able to come to Europe without dying at sea.” The United Nations High Commission for Refugees (UNHCR)’s European director, Vincent Cochetel, has stated that UNHCR “We would not be totally against external processing if certain safeguards were in place: the right to appeal, fair process, the right to remain while appeals take place.”

But beyond the healthy scepticism this figure should be examined with, there is the question about why migration has been growing so significantly across the Mediterranean. The answer here is that there are few other routes for them. As Human Right Watch has noted, Greece, which had been the main country of entry into the EU, has used fences to effectively close its land border with Turkey. Both Greece as well as Bulgaria have engaged in summary returns of asylum seekers to Europe. And there are suggestions that Italian authorities have been encouraging on-migration by deliberately not processing individual migrants, thereby limiting the chances other European countries will return them to Italy. Knowing that there is less chance they will be returned may be encouraging asylum seekers to take to the sea to travel to Italy.

Thus, there is little evidence behind this figure, even though it is being widely reported and used as a means to drive a very particular policy agenda. There is no question that right now, Italy is facing a large number of asylum seekers. But the response should be to consider multilateral options within European Union to share this population and ensure that the rights of refugees under international and European law are respected.

Dr. Phil Orchard is a Lecturer in Peace and Conflict Studies and International Relations at the University of Queensland and Senior Researcher and Program Director, Doctrine, Concepts, and Inter-Agency Cooperation at the Asia-Pacific Centre for the Responsibility to Protect. He tweets @p_orchard.

Stopping people smuggling requires more than just Indonesia’s help

By Sara Davies, Griffith University. This article was originally published at The Conversation. Read the original article.

Australian-Indonesian military relations have been downgraded in recent days following Indonesian president Susilo Bambang Yudhoyono’s decision to reduce military co-operation until he receives an explanation about Australia’s alleged phone tapping activities.

For the time being, the Indonesian government will not be going out of its way to assist Australia in preventing people smugglers and their human cargo from reaching Australian shores. This follows news that Australia has not been able to progress with “boat buy back” scheme in Indonesia due to the Yudhoyono government’s opposition to the policy.

So, what does all of this mean for Operation Sovereign Borders? And how can Australia improve its regional collaboration on reducing people smuggling?

Operation Sovereign Borders

Setting aside the lack of information on the number of boats, it’s difficult to know whether current trends are a result of Operation Sovereign Borders, former prime minister Kevin Rudd’s “PNG solution”, or even the prior work of the Gillard government.

As immigration minister Scott Morrison conceded in September, it appeared that the excision of Australian territory from refugee status determination obligations – and immediate referral of all asylum seekers (who arrive by boat) to Nauru and Manus Island for processing – was having an effect on the number of arrivals.

In July and August, the Indonesian government also accelerated its co-operation in three key areas:

  • changes to visa restrictions on the arrival of passengers from Middle East, particularly Iran
  • expanded UNHCR mobile registration units to prevent asylum seekers using people smugglers
  • agreement to engage in accelerated regional protection framework and data collection to encourage cooperation with countries of origin, transit and destination.

Since the introduction of Operation Sovereign Borders in September, the Australian Navy has intercepted boats and sought to prevent their passage into Australian waters. Meanwhile, the Indonesian government has refused to assist with at least two requests to accept vessels that the Australian Navy appeared to have intercepted and attempted to send back.

At this point, it’s difficult to ascertain the success or failure of the new government’s asylum policy. Likewise, it’s uncertain what effect the current downgrading of diplomatic and military relations will have.


As Scott Morrison says, previous government policies have impacted on the number of boat arrivals. AAP Image/Dan Himbrechts

F for fail

In the recent United Nations Association of Australia’s 2013 report card on Australia’s performance, refugee advocate Julian Burnside gave the Australian government a grade of “F” for its position and policy on refugees and asylum seekers.

The low score was attributed to:

  • the return to the Pacific Solution in 2012
  • the legislative excision of the country from its own migration zone
  • the forced detention in Nauru or Manus Island
  • the decision to halt to processing the refugee claims of up to 20,000 asylum seekers who arrived in Australia over the past year.

Under the new government, all of the above is to be maintained, except for the possible reduction of Australia’s annual humanitarian intake. And new deterrence measures will also be introduced, including:

  • the interception and removal of boats from Australian waters when safe and feasible
  • reduced reporting of boat arrivals and asylum seekers under “security privilege”
  • reduced access to asylum seekers in detection facilities
  • a review of refugee status determination procedures (which began under the Gillard government)
  • a review of the right to appeal decisions concerning refugee status and the reintroduction of temporary protection visas.

Improving regional engagement

In an important step towards progress, a group of 13 affected states (countries of origin, transit and destination for asylum seekers) signed the Jakarta Declaration on August 20 this year – an agreement to address the increased, deadly, movement of asylum seeker flows in the region.

The Jakarta Declaration promoted a four pillar approach: prevention, early detection, protection and prosecution. Importantly, it complemented the work of the ASEAN Intergovernmental Commission on Human Rights and the ASEAN Declaration on Human Rights and their references to asylum seekers and the need to protect persons from irregular movement activities.

As UNHCR Director of International Protection Volker Turk noted, this declaration was in marked contrast to “the usual focus on border management and law enforcement”.

For the first time – and in a significant departure from the Bali Process, which is primarily an anti-people smuggling initiative – the Jakarta Declaration focused on the human rights and protection needs of those being trafficked, as well as the political and socioeconomic conditions that give rise to asylum and smuggling.


Deterrence may produce apparent short-term results, but it does nothing to address the deeper underlying problems. AAP/Scott Fisher

Long-term vision

Over the last year, Australia has taken steps to improve regional engagement. First, it has increased investment in the UNHCR’s activities to assist states such as Indonesia and Malaysia in the region.

Second, the Bali Process, of which Australia co-chairs with Indonesia, agreed to create a regional support office (in Bangkok) to work on data collection, intercept smuggling activities and enhanced immigration cooperation procedures.

Third, and most vitally, it has increased its annual humanitarian intake from UNHCR and reserve intake for asylum seekers from Indonesia and Malaysia.

However, the first and third of these steps appear at risk of being reversed.

The long-term damage to Australian-Indonesian relations concerning asylum seekers and boat arrivals is not the result of this week’s revelations. Rather, it is Australia’s persistence with the dogged pursuit of short-term deterrence strategies that do not solve the long-term problem by addressing the very real protection needs of asylum seekers and developing cooperative solutions within the region.

If the increased humanitarian intake is again reduced, if the principles of the Jakarta Declaration are not carried forward, and if we see regional engagement only turn towards deterrence, then small, vital gains in regional cooperation may vanish quickly.

Australia and Indonesia have common interests in areas of democratic governance, adherence to human rights norms and respect for rule of law. These are the foundations to best assist in building a relationship around the protection and early warning pillars of the Jakarta Declaration.

What the last decade has shown is that deterrence may produce apparent short-term results, it does nothing to address the deeper underlying problems. These policies are vulnerable to budgetary and diplomatic pressures, apathy and dramatic changes in refugee flows due to regional and global crises.

Ultimately, we diminish our credibility in asking others to respect international law when we are not doing so ourselves.

 

Asylum Solutions: we need a regional refugee compact

This article was originally published at The Conversation. Read the original here.

Photo courtesy of IRIN. http://www.irinnews.org/photo/details/200904271305470378/at-umpium-refugee-camp-on-the-thai-border-close-to-myanmar-a-group-of-burmese-refugees-say-their
Photo courtesy of IRIN. http://www.irinnews.org/photo/details/200904271305470378/at-umpium-refugee-camp-on-the-thai-border-close-to-myanmar-a-group-of-burmese-refugees-say-their

The Australia-PNG regional resettlement arrangement and the “no advantage” policy are based on the incorrect assumption that asylum seekers come to Australia because it’s an “easy” entry point into the affluent Western lifestyle via established people smuggler networks. This makes the issue out to be about “pull” factors and diminishes “push” factors for refugees.

In order to address the asylum seeker problem, we first need to reframe the debate to reflect the facts. Then we can focus on protecting refugees in our region who resort to the dangerous sea voyage.

The first steps towards a “solution”? A regional refugee summit that brings together civil society, humanitarian groups, international organisations, academics and politicians. Let’s go with the working title: The Summit on Ideas for Durable Solutions. With genuine engagement and sharing of ideas, practices, tools and policies, the aim of the summit would be to establish a regional refugee compact.

Getting the right structure

Rather than having state chairs, the United Nations High Commission for Refugees (UNHCR) and International Organization for Migration (IOM) would be given dual responsibility to organise the summit. Such an arrangement has a precedent in the Rio +20 United Nation Conference on Sustainable Development in 2012.

If UN General Assembly endorsement required for such a process proved too ambitions, the summit could appoint a high-level organising committee to chair and report on the summit. The panel would include esteemed individuals with knowledge and experience in this area and the region, such as:

Erika Feller, a former Australian diplomat, recently retired from UNHCR
Sadako Ogata, former United Nations High Commissioner for Refugees
Vitit Muntarbhorn, UN Special Rapporteur and currently serving as Commissioner for Independent International Commission of Inquiry on the Syrian Arab Republic.

Hearing from organisations on the ground

There are a variety of refugee experiences in the region – which agenda-driven political processes ignore – that need to be heard in order to explore opportunities for further collaboration and investment.

There are refugees, for instance, who are UNHCR-recognised but survive and thrive in countries where their status remains “illegal”. There are countries – China, Malaysia, Philippines, Thailand, even Singapore – which have in the past have agreed to resettle refugees, in some cases thousands, if they are allowed to determine when and who they receive.

Non-government organisations in regional countries, such as Indonesia, Malaysia and Thailand, that work with asylum seekers must be engaged more fully beyond their current status as service providers. Their work with and experiences of the grassroots interventions to protect asylum seekers remains underutilised.

The regional refugee summit would provide an opportunity for these experiences to be shared with public service officials, law enforcement officers and politicians in an environment where the ideal objective is not an arrangement but an understanding of what drives the demand process, what satisfies demand, and what is durable for each and every state in the region.

Moving towards a regional refugee compact

The summit’s agenda will focus on local and regional initiatives to protect asylum seekers. We need to discuss what services countries can and will provide, what funding arrangements and humanitarian intake solutions can be given and received, and which durable solutions are acceptable under international refugee law and for the region.

The process would start with a wide participatory summit that moves discursively and creatively towards a regional refugee compact, guided by the high level panel of experts who are knowledgeable and engaged in the region. The panel would then report its findings to the region’s heads of state.

Burden-sharing would have to be clearly outlined and bilateral agreements may still flow from the compact as long as they adhered to its principles. These principles could be based on the 1951 Refugee Convention without forcing non-signatories to sign onto the convention.

Such a regional refugee compact could build on the languid Bali Process. Since 2011, all 40 signatory states (in and around the region) have agreed to five principles including asylum processing arrangements, refugee protection, and durable solutions. There is regional agreement on what should guide behaviour but there remain great deficiencies in the creation of arrangements that meet these five guiding principles.

The regional refugee compact, however, would focus the attention away from border protection and towards refugee needs and service provision.

Addressing the real problem

We need a discussion about what better protection outcomes can be achieved without relying on the 1951 Convention, as few states in the region are signatories. We also need to ensure that the protection that the 1951 Convention supplies (hence the passage to Australia) can be regionally sustained into the future via other instruments. None of the policies at the moment meet this criteria.

The Australian government should seek a regional approach that supports and enables engagement between local, national and regional NGOs, the UNHCR, regional governments and refugee groups. These discussions need to be outside of the migration focus and outside of the deterrence model that focuses on the supply side – people smuggling and trafficking. Rather, it must engage with the demand – the asylum seekers themselves.

An “individual asylum needs”-focused approach rather than a “state versus people smuggler” approach may start to yield a more sustainable solution if breaking the business model is the goal. Deterrence does not mitigate demand. It may provide a temporary limit on demand, but in the longer term, this makes people more determined and desperate to find a way to go where they need to go for protection.

Sara Davies, Griffith University and Gerhard Hoffstaedter, University of Queensland.

Asylum for persecuted homosexuals in the Republic of Korea

We kindly thank Forced Migration Review for allowing us to cross post this piece from their Special Issue on Sexual Orientation and Gender Identity and the Protection of Forced Migrants (April 2013).  The full issue may be found at: www.fmreview.org/sogi

Two recent successful claims for asylum suggest that the Republic of Korea may be prepared to serve in the future as an important country of asylum for those suffering persecution due to their sexual orientation.

While Korean society has certainly become more accepting of differing sexual orientations over the last fifteen years, many elements of Korean society remain quite conservative, and open affirmations of homosexuality are rare. Nevertheless, gays and lesbians have equal rights and are protected by anti-discrimination law,[1] and two relatively high-profile asylum cases in recent years have resulted in gay men being granted asylum in Korea.

The first case involved an asylum seeker from Pakistan, a married attorney from Lahore with four children. He had been arrested and detained briefly in Pakistan, and had also been subjected to blackmail and intimidation by family members and people around him. His application for refugee status in Korea was rejected by the Ministry of Justice in June 2009 and the claimant then filed an appeal, which was heard by the Seoul Administrative Court.

The court found the claimant’s personal statement to be coherent and persuasive, and granted him asylum, concluding that if he were returned to Pakistan he would have a “high possibility of being persecuted by Muslims and the Pakistani government because he was gay”. The court explicitly explained that persecution could come from either the government itself or from private actors. In addition to the claimant’s testimony, the court’s conclusion was based largely on Country of Origin Information from foreign jurisdictions – specifically, a UK Border Agency report on Pakistan that said Pakistani police officers frequently blackmail homosexuals, as well as a Canadian Refugee and Immigration Committee report detailing instances of persecution of gays in Khyber and Lahore. The court also noted clauses in both Pakistani law and Islamic law criminalising homosexual behaviour.

In 2011, another claim of sexual orientation-based persecution was presented to the same court by a Nigerian asylum seeker. Here the claimant stated (and the court accepted as credible) that the Nigerian government had rejected him from a government job because he was gay, and had denied him compensation when his house was demolished in an urban planning project because of his sexual orientation. When he protested at the lack of compensation, a group of people tried to attack him at his house. The Seoul Administrative Court ruled in favour of the appellant, basing its opinion largely on an analysis of Country of Origin Information compiled from foreign sources, including a Canadian Immigration and Refugee Board report, an Australian Refugee Appeal Tribunal research report, a US State Department human rights report, an Amnesty International report and others. The court also took into account the fact that Nigerian law criminalises homosexual relationships.

Taken together, these two cases show a distinct openness to allowing asylum based on sexual orientation. The court fully accepted the credibility of the claimant in each instance. In the case of the Pakistani asylum seeker, it even went out of its way to stress that the fact that the claimant was married and had children did not mean he was not gay, and that this was not unusual behaviour in the Pakistani context. The court also had no trouble locating Country of Origin Information from reputable sources that gave credence to the claimants’ fears of persecution.

The judges also declined to address other potential arguments that are sometimes used to deny asylum in other parts of the world. For example, neither ruling addressed the possibility that the claimant might be able to avoid persecution by living in a different part of his home country or by hiding his sexual orientation, although in the Nigerian claimant’s case the court did state that “if a person cannot express his sexuality due to the fear of being persecuted, it can be regarded as a sort of persecution”, thus implying that it would be inappropriate to return someone to a country where they could remain secure only by disguising their sexuality.

The importance of these two single cases to Korean refugee law should not be overstated. However, these decisions are significant in that they show that, despite being relatively new to refugee jurisprudence, the Korean judiciary is willing to grant asylum based on sexual orientation persecution to applicants coming from countries that are considered to be hostile to gays.

Andrew Wolman amw247@yahoo.com is Associate Professor, Graduate School of International and Area Studies, at the Hankuk University of Foreign Studies, Seoul, Korea.

 


[1] With the exception of men in the military.

Ensuring protection for LGBTI Persons of Concern Volker Türk

We kindly thank Forced Migration Review for allowing us to cross post this piece from their Special Issue on Sexual Orientation and Gender Identity and the Protection of Forced Migrants (April 2013).  The full issue may be found at: www.fmreview.org/sogi  

Lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers and refugees face a myriad of threats, risks and vulnerabilities throughout all stages of the displacement cycle. There needs to be greater awareness not only of the specific protection concerns relating to LGBTI individuals but also of related jurisprudence and guidance available for UN staff, partners, state authorities and decision-makers. 

At the centre of the 1951 Refugee Convention are human dignity, the richness and diversity of human life, and the full expression of individual freedoms. The very purpose of the Convention is the protection of those who manage to flee predicaments that violate their dignity, identity and freedoms. Despite the fact that there was no explicit recognition in the Convention of persecution for reasons of sexual orientation or gender identity, its drafters used broad enough language to cover such instances, notably through the introduction of the ‘membership of a particular social group’ ground.

I have no doubt that the framers of both the Universal Declaration of Human Rights and of the 1951 Convention were aware of what had happened in Nazi Germany to LGBTI people. People were arrested on suspicion of homosexuality and many were incarcerated in concentration camps. We will never know how many LGBTI persons fled Nazi Germany to avoid ending up in the camps. As homosexuality was – and remains in many societies – a social stigma and a criminal offence, they would have been forced to hide their reasons for flight even in their new countries of asylum. Unfortunately, this remains the situation for LGBTI asylum seekers and refugees in many parts of the world today.  

There has been growing awareness in recent years about the rights of LGBTI individuals within the human rights and humanitarian community and an emergence of a body of research on this topic. The 2007 Yogyakarta Principles, in particular, have made a significant contribution to a better appreciation of how human rights norms apply and are to be interpreted in the context of sexual orientation and gender identity.[i] It is perhaps premature to assess the role played by the Principles in making concrete improvements in the lives of LGBTI people; however, encouragingly, the Principles have been drawn upon on numerous occasions by the UN (including UNHCR), states, activists, asylum courts and tribunals, and have a constructive role to play as a legal, practical and advocacy tool.

For almost two decades the UN has documented violations against LGBTI people and articulated human rights standards in the context of sexual orientation and gender identity. More recently, the UN has called, at the highest levels, for equal rights, non-discrimination, an end to violence and the abrogation of laws that criminalise same-sex relationships. And in May 2012, the UN High Commissioner for Refugees issued a message to all UNHCR staff, encouraging them to help improve protection for LGBTI persons of concerns as well as to eliminate homophobia and transphobia in the workplace.

Issues in jurisprudence

Since the first refugee claims based on sexual orientation and gender identity were recognised in the 1980s, jurisprudence in this area of refugee law has continued to evolve, though at times with diverging views in different jurisdictions. We have identified a number of issues in this regard.

The first is that of demanding ‘discretion’ – that is, concealing one’s sexual orientation in order to avoid persecution. The idea that gay people should have to tolerate being ‘discreet’ about their sexual orientation was dismissed by the UK Supreme Court in 2010,[ii] a ruling which has received wide attention outside Europe. Discretion has the potential to undermine one of the basic tenets of refugee law – that one should not be compelled to hide, change or renounce one’s identity in order to avoid persecution. Nevertheless, such reasoning continues to be used in a number of countries, particularly within Europe.[iii]

The second is ‘criminalisation’ and the challenges involved in determining whether laws criminalising same-sex relations amount to persecution. The mere existence of such laws is insufficient in some jurisdictions for recognition of refugee status; recent or regular enforcement of the law is required. Some countries also require that applicants show that steps towards enforcement have taken place in his or her individual case. In our view, quite apart from the potential law enforcement perspective, such an interpretation does not take sufficiently into account the level of societal discrimination in countries criminalising same-sex relationships and the impact of this on the actual or feared predicament of LGBTI individuals.

The third relates to ‘sexualisation’ – the over-emphasis by some decision-makers on sexual acts rather than on sexual orientation as an identity. Not only can this lead to intrusive and humiliating questioning about a person’s sexual life (not appropriate for anyone regardless of their sexuality) but it also overlooks the fact that LGBTI people are often persecuted because of the threat they are thought to represent to prevailing social and cultural mores.

The fourth concern is ‘stereotyping’. Sexual orientation and gender identity are not visible in the same way that race and nationality may be. Decision-makers have consequently been preoccupied with obtaining evidence to prove whether an applicant is in fact LGBTI. Lacking guidance and knowledge, they have relied on their own personal assumptions or stereotypes to draw conclusions. This risks undermining the impartiality of decision-making.

The fifth is that of ‘disbelief’which often goes hand-in-hand with stereotyping. Not all courts accept the self-identification of the applicant as LGBTI. Some ask for witness statements or documentation such as emails, ignoring the fact that this might be impossible for the applicant to produce, in particular when he or she has been doing everything possible to hide their sexual orientation.

Developing guidance

UNHCR has developed policy and practical guidance for staff, partners, state authorities and decision-makers to promote a consistent and rights-based approach to the protection of LGBTI people.

In 2008 UNHCR issued a Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity[iv] to improve decision-makers’ awareness about the specific experiences of LGBTI asylum seekers and encourage a deeper analysis of the legal questions involved. This Guidance Note is now superseded by a new set of guidelines on international protection, published in October 2012, which for the first time deal comprehensively with refugee claims based on sexual orientation and/or gender identity. These new Guidelines[v] provide advice on substantive, procedural, evidentiary and credibility issues relating to such claims. The Guidelines are intended to provide guidance to governments, legal practitioners, decision-makers and the judiciary, as well as to UNHCR staff adjudicating these claims under the 1951 Convention, and to ensure a proper and harmonised interpretation across jurisdictions of the definition of a refugee under the 1951 Convention. They recognise that people fleeing persecution for reasons of their sexual orientation and/or gender identity can qualify as refugees under Article 1A(2) of the 1951 Convention.

In 2011 UNHCR released a Need to Know Guidance Note on Working with Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Forced Displacement[vi] to help UNHCR and partners’ staff improve their understanding of the rights and the distinct vulnerabilities of LGBTI refugees and promote concrete actions to ensure that they are protected throughout all stages of their displacement. It provides practical advice on how to make office environments more welcoming, make programmes safe for, and inclusive of, LGBTI persons, and promote participation. In addition, UNHCR’s Age, Gender and Diversity Policy[vii] explicitly refers to LGBTI refugees and asylum seekers.

However, policy and guidance will be of limited effect if prejudice and ignorance prevail among those responsible for implementing that guidance. To remedy lack of understanding among UNHCR’s as well as partners’ staff,[viii] UNHCR is developing a staff training package with ORAM[ix]. This package covers terminology, responses to day-to-day protection issues, refugee status determination (RSD) and LGBTI-sensitive interviewing techniques. The refugee status determination and resettlement processing phases are often the stages when LGBTI persons of concern will self-identify but are also where the most vital decision-making concerning their future will occur.

The 2011 UNHCR Resettlement Handbook provides guidance on the resettlement of LGBTI individuals, which is often the only viable solution in many first-country-of-asylum contexts. UNHCR expedites the resettlement of LGBTI refugees according to their vulnerability, which has in some cases involved emergency resettlement. Although the latest edition of the Heightened Risk Identification Tool addresses the detection of protection risks facing LGBTI individuals, further efforts are needed, including improvement of referral mechanisms. UNHCR is currently working on a resettlement assessment tool for LGBTI refugees which will include a checklist and step-by-step guide for assessing LGBTI refugees in need of resettlement. We are aware, however, that the lengthy average processing time for resettlement by states has an adverse impact on the well-being of LGBTI individuals, who are often in dangerous and difficult situations. 

Conclusion

Homophobia is a human-made construct, fed by political, religious, legal and even pseudo-medical justifications. We know that human beings can be quick to judge, fear and even hate the ‘other’ – people who are different. And departure from the majority ‘norm’ inherently implies social change and can even be seen as a threat. In this context, LGBTI people risk becoming embodiments of that threat. And we have seen similar resistance and bigotry towards individuals promoting social change in the past. Comparable to the anger and hatred today directed against LGBTI individuals and those advocating for their rights is the denigration and abuse that women suffered in the early 20th century when demanding the right to vote or that African Americans and others active in the civil rights movement experienced in the US in the mid-20th century. 

Fortunately, research shows that prejudices can be overcome. We need to change the way society treats LGBTI people by discussing this as an issue of diversity and equality, and by promoting respect for those outside the mainstream. But as long as LGBTI individuals continue to be shunned, abused and criminalised by societies and communities, they will need to be able to avail themselves of the protection – and dignity – that refugee status can provide.

Volker Türk turk@unhcr.org is Director of International Protection at UNHCR Headquarters in Geneva. www.unhcr.org

 


[i] http://www.unhcr.org/refworld/pdfid/48244e602.pdf

[ii] See HJ and HT v. Secretary of State for the Home Department, [2010] UKSC 31, UK Supreme Court, 7 July 2010 www.unhcr.org/refworld/docid/4c3456752.html.  

[iii] The 2011 Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe report found discretion reasoning still being invoked in Austria, Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary, Ireland, the Netherlands, Malta, Poland, Romania, Spain, Norway and Switzerland. Vrije Universiteit Amsterdam   www.unhcr.org/refworld/docid/4ebba7852.html

[v] 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 www.unhcr.org/509136ca9.html 

[vi] UNHCR (with input from ORAM), Working with Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Forced Displacement, Need to Know Guidance 2, 2011 www.unhcr.org/refworld/docid/4e6073972.html .

[viii] ORAM Opening Doors: A Global Survey of NGO Attitudes Towards LGBTI Refugees & Asylum Seekers, June 2012 www.oraminternational.org/images/stories/Publications/oram-opening-doors.pdf

[ix] Organization for Refuge, Asylum & Migration www.oraminternational.org

Asylum Seekers, the responsible state and those pushbacks…

Image

In Australia, the asylum seeker story has somewhat abated in the media – for now. Many Australians remain intensely fearful of ‘Irregular Maritime Arrivals’, or asylum seekers who arrive by boat, and this will be played upon no doubt in this year’s election.  Yet, in our fear we are not alone.  I point anyone interested in the suggested ‘logic’ of boat pushbacks to a fascinating account of the Libya-Italy Pushback agreement in December 2012 issue of International Journal of Refugee Law.  In this article, Mariagiulia Giuffré, gives an account of the last twelve years of pushback activities, between Libya and Italy, of vessels carrying African migrants – including asylum seekers.

In 2000, the Italian government signed a Memorandum of Understanding with the then Muammar al-Gaddafi led Libyan government to interdict any ‘irregular migrant’ passage over their shared maritime zone.  The passage of 1000s per month arriving in Lampedusa, a Sicilian island at the bottom of Italy and not far from North Africa coastline, continued.  As years passed, new agreements were forged with the culmination of the Treaty on Friendship, Partnership, and Cooperation (Partnership Treaty) in Tripoli in 30 August 2008.  Attached to this Treaty – but of course separate to the pushback scheme – was a large compensation package offered by Italy ($5 billion in compensation to Libyan government for Italy’s past colonial crimes); with assistance for building of holding centres for those forcibly returned from Lampedusa (most vessels received were from Africa), training for Libyan authorities, vessels provided to Libyan authorities to forcibly intercept and return boats from Italy’s shores.  Libya agreed to take back the African ‘irregular migrants’ that Italy returned to Libya, pending their deportation to country of origin. This often meant forcible return, separation of families during transit and there was ‘no way of knowing’, as one of the operators stated in 2010, ‘whether the right to request asylum as well as other human rights are being respected in Libya’.  Italy signed this agreement, and the EU assisted with financial packages for these agreements over the 2000-2010 period, though Libya was not a signatory of the 1951 Convention Relating to Status of Refugees or its 1967 Protocol.

This agreement had the sole aim of preventing the ‘illegal’ passage of African migrants – whether asylum seekers or labour migrants – to Italy and the European Union’s refugee protection and laws.

Was it humanitarian? No. Libya had no refugee processing procedures in place, was not expected to, and was itself a brutal regime.  The international community largely applauded its downfall in 2011.  There is no doubt, as Giuffré argues, that during these years of the Agreement acts of refoulement occurred.  The international law pertaining to non-refoulement holds that states must not return people to any situation whether their lives may be at risk of torture or death.  This could not be guaranteed under the transfer agreement.  The European Union raised such concerns after the first wave of pushbacks in 2009.  In a 2012 judgement on Italy’s pushback of asylum seekers, the European Court of Human Rights heard that “Italian authorities, in full knowledge of the facts, exposed intercepted refugees to inhuman and degrading treatments by removing them to Libya” where they had no protection guarantees against refoulement. Italy did not uphold its humanitarian obligations as a European Union member when it assisted Libyan authorities nor did it act a responsible member of international society.

If short of the humanitarian mark, did the Pushback agreement achieve its aim?  Were there fewer arrivals on Lampedusa?  If you go to UNHCR site, and scan the statistics on Italy’s arrivals during the past decade (particularly 2002-2006 statistics) you see peaks and troughs that may or may not correspond with events in Italy and be more reflective of the situations in Somalia, Ethiopia, Kenya, Uganda, Sudan and so on.  The arrivals reached intense proportions by 2007. From 2008, the border controls grew harsher, with the introduction of the Agreement, with the pushback of all vessels and forcible returns to Libya.  There were reductions in arrivals during this period.  Then political events in Libya and Tunisia unfolded and these controls crumbled in 2011.

Success depended upon the agreements between Italy and Libya becoming more punitive and Italy’s reliance upon the means that Libyan authorities used to control arrival flows (similar to Spain’s third-country processing relationship with Algeria and Tunisia).  Many Australians and politicians may, unfortunately, care more about whether this pact worked than whether it was humanitarian.  Perhaps, but what the 2011 events in Lampedusa reveal is that brutal crackdowns may work in the short term but not in the long term; nor did these controls assist create any capacity to handle those dramatic, often tragic, peaks during 2011 and 2012.

Italy’s revised agreement with the new Libyan administration will be just as vulnerable for two reasons.  First, the events that unfolded – and are still unfolding – in North Africa reveal that the governments serving as ‘transit’ holding centres for developed countries like Italy and Spain are less likely to be stable democracies that are willing to bear the burden of their neighbours across the water.  If Australians take this message home, we should be concerned with any notion that Indonesia should be expected to bear our responsibility for asylum seekers through compensation or coercion (as was the case with Italy-Libya relationship).  Indonesia is in the throes of becoming a promising democracy, is fighting internal corruption, coming to grips with governing through decentralisation a 13 000 island archipelago, and undergoing dramatic economic transformation. If any burden sharing is to occur between Indonesia and Australia it must be on equal terms, which means that terms such as ‘pushback’ and ‘compensation’ should be avoided.

Second, though it appears that humanitarian arguments fall on deaf ears in Australia when it comes to asylum seekers, it needs to be understood that desperate people will always seek refuge through any means available.  Nations can provide the structure to accommodate these peaks and troughs or they can literally pour their money into the water trying to keep back something that is beyond their control.  When Tunisia and then Libya succumbed to internal turmoil, Italy was forced to play host to over 50,000 migrants in Lampedusa almost overnight.  The boats did not stop from day to night. People were desperate to get out.  Forcible pushbacks at this point are not only logistically impossible, they dangerous, immoral and the opposite of what humanitarianism dictate in such circumstances.

Too often asylum seekers have been defined as ‘illegal migrants’ that weaken borders and threaten social cohesion.  But let’s look at this rationally – asylum seekers are screened for health and security risks and not released into society until they are deemed safe.  In other words, the alignment of asylum seekers with security language has been an ill-conceived notion of what security threats are and how governments may best manage them.  Like Italy, Australia is at great risk of confusing the two, spending a lot of money on policies that will not resolve the problems that give rise to asylum seeking in the first place.

What this outstanding article in International Journal of Refugee Law demonstrates is that the agreement between Italy and Libya ultimately failed in practice because it was of mutual convenience for two states consumed by hubris and not by their responsibility to protect populations from harm. Their agreements, protocols and ‘aid packages’ crumbled in 2011 precisely because they were not inspired primarily by humanitarian considerations.

Sara Davies, Human Protection Hub