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.

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.

Factcheck: Asylum Seekers

Republished with the permission of The Conversation. Read original post here.

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The government says many asylum seekers are are arriving for “economic reasons”. AAP Image/Rossbach/Krepp

“People are coming here, not now as a result of persecution, but because they’re economic refugees who’ve have paid money to people smugglers.”

– Foreign minister Bob Carr, Meet the Press, June 9.

There is a political context to this statement as the government grapples with its perceived weakness on asylum seeker policy. Resurrected prime minister Kevin Rudd has backed Carr, saying there were a “whole bunch of people” arriving by boat as economic migrants purporting to be refugees.

The government has commissioned a review into the processing of asylum seekers in a bid to lower the acceptance rate – around 90% of asylum seekers who arrive by boat have been found to be refugees. The government’s view is thatmany are middle class Iranians and Sri Lankans, in particular, who are fleeing for economic reasons. “There’ve been some boats where 100% of them have been people who are fleeing countries where they’re the majority ethnic and religious group, and their motivations is altogether economic,” Senator Carr said last week.

The government says it has evidence to justify these claims, but so far we have not seen it. Putting aside the politics, the government’s assertions are not backed by the known facts.

Since the adoption of the Expert Panel Recommendations on Asylum Seekers, the “no advantage” test has been applied to all individuals who have arrived in Australian waters seeking asylum since August 13, 2012. This means they receive no benefit compared with people who stay in refugee camps waiting for processing. Because of this, as reported in The Guardian: “there has been virtually no processing of the claims made by the more than 20,000 refugees who have arrived since that time”. This was confirmed in the Legal and Constitutional Affairs Legislation Committee on May 27, 2013. So, if we have not processed claims, we have no idea whether recent arrivals by boat are “genuine” refugees or not.

We also know that the majority of asylum seekers are arriving from Sri Lanka, Iran and Afghanistan. Regarding Sri Lanka, the Human Rights Council on March 21, 2013, adopted the resolution on Promoting Reconciliation and Accountability in Sri Lanka, which called on its government to “conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law”.

The resolution expresses concern at:

…reports of continuing violations; concern at reports of enforced disappearances, extra-judicial killings, torture, threats to the rule of law, religious discrimination and intimidation of civil society activists and journalists.

As for Iran, this year the Security Council – of which Australia is a member state – extended the enforcement of sanctions. The Human Rights Council on March 22, 2013, passed a resolution on the human rights situation in Iran after hearing a report by the UN Secretary General. It concluded that:

…the Secretary-General remains deeply troubled by reports of increasing numbers of executions, including of juvenile offenders and in public; continuing amputations and flogging; arbitrary arrest and detention; unfair trials; torture and ill-treatment; and severe restrictions targeting media professionals, human rights defenders, lawyers and opposition activists, as well as religious minorities.

As for Aghanistan, the Security Council regularly hears from the United Nations mission in Afghanistan (UNAMA). In March 2013, it was reported to the council that there remains serious human rights violations and attacks on civilians by armed non-state actors. Regarding the likelihood of these asylum seeker claims meeting the UNHCR refugee definition – “the UNHCRhas identified 859,305 refugees in need of resettlement, of whom 180,676 require resettlement in 2013”. Afghanistan remains the number one source country for successful refugee claims around the world.

In summary, these three major source countries for boat arrivals have been repeatedly found by the international community to be unable to protect persons that may fall under the refugee definition – someone with a well-founded fear of persecution on the grounds of race, religion, nationality, social group or political opinion.

Finally, on the question of “economic migrants” versus “refugees”, the UNHCR provided an important qualification in their 2011 issue of the UNHCR Handbook on Procedures and Guidelines for RSD. They noted the distinction is “sometimes blurred”.

“Behind economic measures affecting a person’s livelihood there may be racial, religious or political aims or intentions directed against a particular group.”

The handbook goes on to note that “objections to general economic measures are not by themselves good reasons for claiming refugee status. On the other hand, what appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves”.

As signatories to the 1951 Refugee Convention, we have an obligation to hear – without prejudice – the testimony of each asylum seeker before presuming that their claim for refugee status is not valid because of their nationality or ethnic origin.

Verdict

Based on the available information, the foreign minister’s statement is incorrect.


Review

The author is correct that it is the political context surrounding current asylum debates that has prompted a shift in language, now likening asylum seekers to economic migrants. This shift in language heralds a potential future shift in asylum policies.

It is true that as the reference to UNHCR in this article notes, Convention-based persecution can lead to economic deprivation, and Australia should be wary of making blanket assessments of particular countries or groups. However on the matter of claims not being processed and the unavailability of data, there are a number of Sri Lankans in particular who have either returned voluntarily or involuntarily on the grounds that they have not invoked Australia’s protection obligations. It may be instances like this that Senator Carr is using to extrapolate to all boat arrivals. – Melissa Philips


The Conversation is fact checking political statements in the lead-up to this year’s Australian federal election. Statements are checked by an academic with expertise in the area. We then seek a second opinion from another academic expert, who gets an anonymous copy of the article to review for accuracy and fairness. Our Election FactCheck page launches on Monday 8 July.

You can request a check at checkit@theconversation.edu.au.

Collective Historical Memory and its effects on the Syrian Refugee Crisis in Lebanon

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Photo courtesy of: http://english.alarabiya.net/en/News/middle-east/2013/04/09/UNHCR-opens-new-registration-center-for-Syrian-refugees-in-Tyre-southern-Lebanon.html

If the international community is able to agree on one thing regarding the Syrian crisis right now, it is that it is a mess.  No side is winning in what has become an outright civil war, and those who seem to have the least to gain are the Syrian people themselves once the fighting stops.  This blog examines the Syrian refugee crisis through the eyes of its closest neighbour, Lebanon.  What is revealed is that at the local level, is that collective historical memory of the events of the civil war is what informs Lebanese beliefs about how to manage the influx of Syrian refugees.  

The total number of persons of concern to the UNHCR in the Syrian crisis has reached 1,615,137 of which 1,416,277  are registered refugees. On average 8,000 Syrians are crossing into Egypt, Iraq, Jordan, Lebanon and Turkey daily.  In Lebanon, the number of Syrian persons of concern has reached 513,560 of which 440,427 are registered refugees.

Whilst local integration for Syrians in Lebanon is considered easier owing to the similarity in language and culture between the two states, the situation there is highly problematic for two reasons: the lack of camps, and local prejudice towards Syrians in general whom the Lebanese are easily able to identify from subtle differences in their physical appearance. 

The first issue, that of the camps, is deeply problematic but can be understood if analysed at the local political level.  From the point of view of the international humanitarian community, the lack of camp facilities makes it far harder for the UNHCR to ensure refugee protection and general well being.  Currently makeshift tents and housing speckle the Beq’aa valley, where in many cases Syrian refugees are having to pay extortionate rents from land owners to merely erect a tent on a tiny square of land.  Basic facilities such as toilets and kitchens are unavailable and as the area backs onto areas of intense fighting it is insecure as missiles and other ordinance regularly land on the Lebanese side of the border.

The Lebanese government refuses to allow the construction of refugee camps for Syrians.  A quick reflection on the not-so-distant past reveals the rationale for their position. Lebanon has housed numerous Palestinian refugee camps since 1948 and currently there are between 400,000 to 600,000 Palestinians residing in the country.  In 1970, when the Palestinian Liberation Organization (PLO) was expelled from Jordan, they moved to Lebanon and swiftly took over many areas in the south of Lebanon, but also the camps.  As a result, the camps themselves became places of resistance to certain factions in the Lebanese Government during the civil war, and many battles were waged within the camps and launched from them.  Indeed, the presence of Palestinians was the trigger for the 1978 and 1982 Israeli invasions of Lebanon during which hundreds of Lebanese were killed and wounded.  Post-civil war the problem of radicalisation within the camps remains a significant issue.  The southern camp of Ayn Al-Hilweh in Sidon, known to be the home of the radical Sunni Islamic group – Fatah Al-Islam, is so insecure that even the Lebanese Army do not dare to enter it.  In the North, close to Tripoli is the camp of Nahr Al-Bared where in 2007 several Lebanese Internal security officers were murdered by Fatah al-Islam militants triggering an all out war in the camp which led to its destruction by the Lebanese Army, but the camp remains a site of significant tension.

This history means the Lebanese state is unwilling to create any new camps for Syrians, fearing, not unjustifiably, that they will become spaces for insurgent activity which threatens the security of Lebanon itself.  As the official policy towards Syria remains one of disassociation (although this view is becoming increasingly difficult to maintain), they do not want the camps to become places where attacks against Syria, or Lebanese political groups can be planned and executed.  The weakness of the Lebanese state currently means it is in no position to ensure that any camps constructed would not fall prey to Syrian opposition factions.  Especially as the majority of Syrians fleeing the violence are Sunni Muslims who dominate the armed factions on the ground in Syria.

Furthermore, just as the Palestinian camps have become permanent fixtures on the Lebanese landscape, the government here fears the same will happen all over again.  If they build a camp, will the residents ever leave?  One of the main reasons that Palestinians cannot be naturalised in Lebanon is because they are considered to be predominantly Sunni.  Lebanon has a population of around 4.5 million, if the half a million or so Palestinians currently residing in Lebanon were to become part of the Lebanese population, they would alter the delicate sectarian balance that exists today. This is not a prospect the other sects within Lebanon savour.  The same is true for the Syrian refugees: the Lebanese are wary of an influx of Sunnis who might decide to stay.  As Syrians are permitted to remain indefinitely in Lebanon without requiring a visa, there is nothing to prevent them from choosing to remain and building a life for themselves here and although this is different to formally recognising them as part of the Lebanese population (with the right to vote), they might present a threat in other ways.  Firstly by encouraging greater interference in Lebanese affairs on behalf of the Syrian population, should it continue to grow; and secondly intermarriage with Lebanese would enable Syrian women to take Lebanese nationality.  Irrational though these fears may sound, as a small state the Lebanese are highly sensitive to demographic changes for the reasons noted above.

For those Syrians fortunate enough to make it past the Beq’aa and into Beirut, the situation they face is one of hardship. Rents are incredibly high compared with Syria, and there is insufficient space. But it is prejudice against Syrians that probably causes the most difficulty for Syrian refugees on a day-to-day basis.  Syrian forces occupied Lebanon for thirty years (from 1975 – until 2005).  As a result of the human rights abuses that occurred under their watch, many Lebanese view Syrians with resentment.  This has not always been the case, but the situation has not been helped by the sudden influx of Syrians who are prepared to accept low wages for menial work.  The declining Lebanese economy makes work hard to find for young men from the lower socio-economic strata of the population and they are now having to compete even harder for the most basic of work, compounding the resentment within those sectors of the Lebanese population.  The same applies to cheap accommodation; Syrians are regarded as taking up rental properties in low income areas at the expense of Lebanese.

On the whole Lebanese are sympathetic to the plight of the Syrian people but prejudice is reflected in the daily actions of every day Lebanese, from rude comments to episodes of actual physical violence.  Taxis refuse to stop for them, and in one case witnessed by the author, two Lebanese on a scooter actually deliberately hit a man as he was trying to cross, when they recognised he was Syrian. Resentment is compounded by reports of Syrian refugee sympathy for movements like Jabat Al-Nusra, a Salafist group currently fighting Assad’s regime in Syria.  Nowhere is the tension between these groups higher than in Tripoli, where the population is deeply polarised between those who support Assad and those who oppose him; and the Shi’a dominated Southern Suburbs (Dahiyeh) where in recent days the Lebanese Military had to intervene to break up a fight between Syrians and the local Lebanese population.

Progress on addressing the issue of Syrian refugees in Lebanon is doubtless not helped by the lack of cohesion amongst the political parties in Lebanon, who to this day, have been unable to agree on an electoral law that would have enabled them to hold the planned General Election on 16 June.  To date, a one and a half year extension has in principle been agreed to, but it is currently being challenged by the President Michel Suleiman and one of the Christian parties led by Michel Aoun.  Meanwhile the pressure on this small state to house the flows of refugees from Syria continues with no solution in sight.

Vanessa Newby, PhD Student, Griffith Asia Institute.  Currently on a visiting fellowship at American University of Beirut.

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