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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
5 July 2012
Sexual Orientation and Refugee Status Determination over
the Past 20 years: Unsteady Progress through Standard
Sequences?
In Thomas Spijkerboer, (ed) Fleeing Homophobia
(2012)
Jenni
Millbank[♦]
Introduction
In this chapter I sketch a framework for analysis
of sexual orientation based asylum claims that aims to accommodate both common
themes
and divergent outcomes (Jansen & Spijkerboer 2011: 14;
O’Dwyer 2008; and more generally Ramji-Nogales et al. 2009) across
the range of jurisdictions grappling with these issues to date. I take as my
starting point Kees Waaldijk work from
the late 1990s, in which he claimed a
discernible trend of ‘steady progress’ through ‘standard
sequences’
in the development of sexual orientation rights across the
European Union in the last third of the twentieth century (2001b). Waaldijk
suggested that within these trends there were two ‘laws’ or
preconditions to reform, which he titled the ‘law of
small change’
and the ‘law of symbolic preparation’. I suggest that progress in
sexuality rights in refugee status
determination (RSD) has in fact been rather
unsteady, with significant informal resistance springing up to take the
place of doctrinal obstacles as these are
dismantled.[1]
I believe that
‘small change’ and ‘symbolic preparation’ are useful
tools to understand existing variations
of approach across receiving nations
and, more importantly, as signposts for the framing of policy and litigation
action in the future.
Waaldijk’s analysis was developed in the markedly
different context of family and relationship recognition claims (2001a).
Yet it
draws attention to the ways in which sexual orientation rights have evolved
within general human rights frameworks despite
not being specified within
founding documents such as the International Covenant on Civil and Political
Rights (ICCPR) and European
Convention of Human Rights (ECHR). In the same way
the potentiality of sexual orientation claims was latent within the Refugees
Convention,
until ‘discovered’ quite recently. Using
Waaldijk’s framework draws our minds back to the critical inter-relation
between the development of refugee law, broader human rights norms and the
specific step-by-step process of articulating and applying
sexuality rights as
human rights within adjudication processes.
It is only by starting with
the expectation that gay men, lesbians, bisexuals and transgendered people
(LGBT) are entitled to enjoy
the full range of fundamental human rights and
freedoms that their refugee claims can be properly assessed as a failure of
state
protection, rather than, say, an irrational or improbable violation of
prevailing cultural norms. Take the premise that sexual minorities
are simply
behaving appropriately by concealing their sexuality from neighbours, families
and employers. This will lead to the conclusion
that a lesbian who pretends to
live with a female ‘flatmate’, because she could not acknowledge her
partner without fear,
is acting ‘naturally’. It is the understanding
that lesbians and gay men have human rights rights-claims - to family
life, to
freedom of association and expression, in addition to privacy and protection
from torture - which transforms the whole spectrum
of violence and oppression on
the basis of sexual orientation into a cognisable wrong under the
Convention. A deep seated, nuanced and context sensitive equality analysis is
required to transform
judicial understandings of minority sexual identities that
go beyond (very) private gay sex from being understood as
‘flaunting’,
‘provoking’, ‘parading’ or
‘publically proclaiming’ (Dauvergne and Millbank 2003b; Millbank
2009a:
393), into what is really being claimed: the right to live an ordinary
everyday normal gay life, openly.
The place of refugee law within
an international human rights framework is, of course, contested. Catherine
Dauvergne, Patricia Tuitt,
Michelle Foster and many others have contended that
refugee law functions more to keep people out than to let them in, and operates
as a form of exceptionalism, through its limited categories of claimants and
avenues of claim (Dauvergne 2008; Foster 2008; Tuitt 1997). Moreover, much day
to day refugee decision-making lacks any explicit consideration of human rights
standards. The counter-argument
is that international human rights norms
underpins refugee law; for example through informing ‘persecution’
analysis
(Hathaway 1991: 105–12), and the development of particular social
group analysis (PSG), most especially with regard to gender
(Daley and Kelly
2000; Anker 2002; Haines 2003: 46–80; Musalo 2003). I begin here from the
premise that refugee law is a distinct
but concretely applied manifestation of
international human rights law; one which is simultaneously informed by, and
inseparable
from, the norms and institutional practices of the receiving
country. This is why I believe that Waaldijk’s framework is so
helpful, as
his insights of small change and symbolic preparation alert us to the dynamic
interplay of national conditions with international
standards and
‘universal’ rights (Billings 2000; Tobin
2012).
Progress?
Between 1955 and 1967 there were at least
nine complaints made under the ECHR by men in Germany and Austria, all
designated ‘X’
in their communications, who had been imprisoned for
terms between 15 months and 6 years for the crime of consensual gay sex. Each
one of these applications was declared inadmissible as ‘manifestly
ill-founded’ on the basis that ‘the Convention
allows a...Party to
punish homosexuality since the right to respect for private life may, in a
democratic society, be subject to
interference ... for the protection of health
and morals..’ (X v Germany (No 530/59) 1960: 194; discussed in
Wintemute 1997: 92).[2] Today such men
would be eligible to claim asylum in most refugee receiving nations in the world
on the basis that such sanctions
were persecutory.
The Netherlands was
the first country to accept sexuality as a PSG in 1981 (Waaldijk et al.
2010: 27; Afdeling Rechtspraak Raad van State (ARRvS) no A-21113,
Rechtspraak Vreemdelingenrecht 1981.); others followed
haltingly.[3] Sexual orientation was
increasingly accepted in principle as eligible under the PSG ground by the mid
to late 1990s as major courts
in countries such as Canada, Australia and the UK
made such observations largely in obiter (Canada (Attorney General) v
Ward [1993]; Applicant A v MIEA (1997); Reg v IAT ex p Shah
(1999). However in practice at lower levels sexuality claims continued to be
challenged, and sometimes dismissed, on the basis that
no Convention ground had
been engaged (Millbank 2009b: 15; MK v SSHD
(2009): [351]). Non-government organisations which specifically campaign for
sexual orientation rights, such as the International
Lesbian and Gay Human
Rights Commission and International Gay and Lesbian Association were crucial in
raising the profile of sexuality
in human rights and refugee law spheres. The
activism and lobbying of these organisations led to a fundamental shift in the
focus
of a number of mainstream human rights organisations such as Amnesty
International, which resolved in 1991 that people imprisoned
for their
homosexuality were prisoners of conscience. Since then generalist human rights
groups such as Human Rights Watch and Amnesty,
in addition to specialist LGBT
organisations and, more recently UNHCR, have played a major role through
documenting abuse in sending
countries (Human Rights Watch & International
Lesbian and Gay Human Rights Commission 1998; 2003; Amnesty International 2001;
Human Rights Watch 2009a; 2009b; 2010; 2012), intervening in key cases (for
example Hernandez-Montiel (2000), International Lesbian and Gay Human
Rights Commission among others; Appellant S395/2002 v Minister for
Immigration and Multicultural Affairs (2003), Amnesty International
Australia; HJ and HT v SSHD [2010], UNHCR and the UK Equality
Commission), and lobbying, providing policy guidance and participating in
decision-maker training
in receiving countries (see, Gray 2011: UK Lesbian and
Gay Immigration Group 2010a: 2-3; Wolf-Watz et al. 2010).
In the
past decade, developments have been rapid, including but not limited to the
following milestones:
These advances have been hard won and do evidence real
progress.
Standard sequences?
While there now thousands of
written decisions on sexual orientation available worldwide in English alone,
there remains very little
reliable data on outcomes or reasoning in most
receiving nations. In recent years Belgium and Norway have collected and made
available
information on the number and success rates of claims (Jansen and
Spijkerboer 2011: 15; Hojem 2009), but they remain the exception
as most
countries do not release –and many do not even collect – such
data.[5] In the few instances where
raw figures are available, there is rarely a breakdown on the proportions of
claims by women and men,
countries of origin of claimants, or on the most common
reasons for failure of claims. Lack of public access to written reasons for
low
level decisions (eg immigration courts, administrative tribunals and internal
government decision makers) makes it extraordinarily
difficult to gain an
understanding of how the law on sexual orientation and refugee status is being
developed and applied at the
levels where it has the greatest impact. Access to
both broad data on trends and outcomes and to the specific reasoning from
determined cases is necessary in order to effectively advocate
for LGBT asylum
seekers on an individual and collective basis.
Some advocacy
organisations have pioneered research drawn from client experiences. For example
the Lesbian and Gay Immigration Group
and Asylum Aid in the UK have both
initiated valuable small scale studies of reasons for refusal letters issued at
the lowest levels,
which help build a picture of how appellate level
jurisprudence and policy about gender, sexuality and PSG is (mis)understood and
applied on the ground (Asylum Aid 2011; UK Lesbian & Gay Immigration Group
2010b). Recent multi-jurisdictional research projects
such as Fleeing Homophobia
and GENSEN in Europe are enormously valuable in identifying relevant case law,
policy and trends within
and across countries (GENSEN 2012). The Fleeing
Homophobia report identifies several common themes across the EU which reflect
the
findings of my own comparative longitudinal research on RSD in the UK,
Canada, Australia and New Zealand. To pose these as a standard
sequence I
suggest that we see:
The progress through these sequences appears
far from steady. Indeed a close analysis of the case law from a single
jurisdiction will
often reveal that there are different decision-makers taking
contrary interpretations on any number of the above issues over a period
of
years before they are ‘resolved’ by an appellate court or
legislative directive. Such ‘resolution’ is
in my view frequently
also unstable, as lower level decision-makers subsequently misunderstand,
restrictively interpret, actively
reinvent - and on some occasions continue in
complete ignorance of - precedents and policy guidance. This resistance, which I
refer
to here as ‘backsliding’ (without meaning to suggest that it
is necessarily intentional), in combination with other informal
barriers such as
poor quality credibility assessment to establish whether the applicant is indeed
a member of the PSG (see for example
Millbank 2009b; Jansen and Spijkerboer
2011: chapter 6), means that each step almost always needs to be taken more than
once. While
there are many possible illustrations of this argument, for reasons
of space I will address just one: discretion reasoning.
Confronting Discretion reasoning
While variously expressed, the
universalised assumption of natural (and rightful) closetedness for gay men and
lesbians provides the
conceptual underpinning of persecution analysis in sexual
orientation claims across dozens of jurisdictions
worldwide.[9] Through
‘discretion reasoning’ claimants may be required, expected or
assumed to be capable of (re)concealing, or relocating
and thereby reconcealing,
their sexuality in their home country order in order to avoid persecution. This
has been expressed as a
‘reasonable expectation that persons should, to
the extent that it is possible, cooperate in their own protection’ (RRT
Reference V95/03527 (1996)), and thus as a normative standard or
requirement of ‘reasonableness’ but is often embedded as an
assumption or
factual finding that behavioural ‘modification’,
‘restraint’ or ‘adaptation’ will simply
‘happen’.
So a gay applicant from Uganda will ‘be mindful of
his society’s concepts of good manners and the general social mores’
in concealing his sexuality (JM v SSHD (2008): [149]). Discretion
logic is a particularly invidious form of victim-blaming because affirms the
perspective, if not the conduct,
of the persecutor. In the words of Pill LJ at
Court of Appeal level in HJ and HT v SSHD [2009]: [32]), according
...a degree of respect for social norms and religious beliefs in other states
is in my view appropriate. Both in Muslim Iran and Roman
Catholic Cameroon,
strong views are genuinely held about homosexual practices. In considering what
is reasonably tolerable in a particular
society, the fact-finding Tribunal is in
my view entitled to have regard to the beliefs held
there.[10]
The content of
‘discretion’ is rarely spelt out. Expressed as a matter of good
manners, it implicitly encompasses lifelong
secrecy and all-encompassing
strategies of concealment, which time and again decision-makers have held
‘will not cause significant
detriment to [the] right to respect for
private life, nor will it involve suppression of many aspects of ... sexual
identity’
(HJ and HT v SSHD [2009]: [44]).
Discretion
reasoning has generated a plethora of legal errors in persecution analysis,
including: reversing the onus of Convention
protection, treating the scope of
protection offered by the Convention grounds inequitably, failing to undertake a
future-focused
analysis of the risk of harm and construing internal flight
alternatives as opportunities for re-concealment rather than safety (see
Atta
Fosu v Canada (2008): [17]; Okoli v Canada (2009): [37]). It also
leads to errors in defining the PSG, by treating ‘discreet’ and
‘open’ homosexuals
as if they are two completely distinct, stable
and mutually exclusive groups (see Weßels 2012; Dauvergne and Millbank
2003a:
117–23; Millbank 2009a: 393–395;). This too misleads a future
focused analysis of persecution risk for the fundamental
reason that there is no
such thing as a complete and lifelong closet: a person may be closeted for some
purposes or in certain spheres
(work but not family, family but not friends,
some friends but not all), and even those assiduously committed to concealment
are
always at risk of exposure through the disclosures of others, or
surveillance, and through their own lack of conformity to heterosexual
norms
over time, for example if they do not marry and raise children by a certain age
(SW v SSHD (SW Lesbians) (2011): [95]; Chelvan 2011). Discretion
reasoning has been associated with very high failure rates for lesbian, gay and
bisexual
refugee claimants (Millbank 2009a: 393; UK Lesbian & Gay
Immigration Group 2010).
The 2000s saw increasingly high level rejections
of discretion approaches in both judicial and policy spheres across multiple
jurisdictions.[11] The issue was
first considered by an ultimate appellate court in December 2003 when the High
Court of Australia by a slim majority
of four judges to three in the case of
S395 rejected discretion reasoning, stating that, ‘It would
undermine the object of the Convention if the signatory countries required
them
to modify their beliefs or to hide’ and holding it was incorrect in law to
require or expect someone to ‘take reasonable
steps to avoid persecutory
harm’ (Appellant S395/2002 v Minister for Immigration and Multicultural
Affairs (2003): [41], [50] per Kirby and McHugh J, see also [82-3] per
Gummow and Hayne JJ). The majority judgments also affirmed that the
experience
of sexual identity involves more than mere private sexual conduct (S395
(2003): [51-3] per Kirby and McHugh J, [81-2] per Gummow and Hayne JJ). In 2010,
the Supreme Court of the United Kingdom issued a
unanimous five opinion judgment
approving the majority approach in S395 and condemning discretion
reasoning in even stronger terms.
Backsliding on Discretion:
Reasonableness, Choice and Other ‘Perfectly Natural’ Responses to
Social and Family Pressure
Discretion logic has shown itself to be
extraordinarily resilient. It has appeared, and been challenged, since the very
first cases
on sexual orientation. In cases from Germany in the 1980s and in
Canada, Australia and New Zealand in the 1990s, low level decision
makers
rejected discretion in forceful terms (Dauvergne and Millbank 2003a:
115–6). It is notable that while such reasoning
rarely appeared again in
Canada and New Zealand, it remained prevalent in German and Australian cases.
Even in countries such as
Canada where it was rejected very early, and in the
Netherlands where it has been expressly disapproved in policy directives, it
continues to resurface at lower
levels.[12] The 2011 Fleeing
Homophobia report found discretion reasoning still occurring in Austria,
Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary,
Ireland,
the Netherlands, Malta, Poland, Romania, Spain, Norway and Switzerland (Jansen
and Spijkerboer 2011: 34).
The interlinked history of the S395 and
HJ cases neatly illustrates the adaptive properties of discretion logic,
as the themes of reasonableness, the natural and the social
appear throughout
both, not least of all in the way that S395 was twisted and misapplied to
perpetuate a normative standard of discretion in UK jurisprudence for several
years. Mr HJ actually
took his claim to the UK the Court of Appeal on two
occasions and challenged discretion in both. In the first judgment in 2006, the
Court expressly followed the majority of the High Court of Australia in
S395 (J v SSHD [2006]: [16], [20]). However Maurice Kay LJ
referred to a general definition of persecution from S395 (as something
which one could not ‘reasonably tolerate’) in a way which suggested
that it was relevant to assessing the
specific impact of discretion on a gay
applicant (J v SSHD [2006]: [16], [20]). Several later cases, including
the adjudicator rehearing J’s claim, reframed the persecution inquiry as
whether the applicant could be ‘expected to tolerate’ a life of
secrecy for fear of harm such as imprisonment or death
(HJ v SSHD [2008]:
[31]). In the absence of evidence of past persecution, and regardless of the
testimony of applicant’s themselves about
how intolerable such a situation
was, decision-makers found without fail that lifelong concealment was indeed
something that could
be ‘reasonably tolerated’ (see eg: OO
(Sudan) v SSHD (2009): [9], [17]); XY (Iran) v SSHD (2008): [13]);
HJ (Iran) v SSHD (2008): [44]. In addition, AJ v SSHD (2009):
[65] and SB (Uganda) v SSHD (2010): [51] both quashed similar tribunal
determinations on judicial review because there had been past persecution such
that future
discretion was not possible).
Related to, and informing,
‘reasonableness’ is the ubiquity of social forms of expression of
heterosexuality and acceptance
of the invisibility – or at least the
vastly lesser visibility of – expressions of homosexuality within a trope
of individualised
choice. Heterosexual people just happen to
‘choose’ to marry while gay men and lesbians often
‘choose’ not
to tell people that they are in a same-sex
relationship, but this is not for any reason, they just like to keep such things
private,
or to keep themselves to themselves. Thus, in S395, the
Minister argued, and Callinan and Heydon JJ in dissent accepted that,
The appellants had in fact, and would in all likelihood continue to live, as
a matter of choice, quietly without flaunting their homosexuality.
They were not
men who wished to proclaim their homosexuality. Living as they did, they were
not oppressed. Discretion...was purely a matter of choice and not
of external imposition. No one required them...ever to modify their behaviour
(S395 (2003): 106, emphasis added).
[13]
It is alarmingly that the two
more empathic and detailed judgments affirming the ‘right to live freely
and openly as a gay man’
in HJ also continue to assume the
existence of a naturally secretive gay person who is exercising free
choice in no way related to persecutory conditions by never disclosing their
sexuality. Lord Hope imagines the possibility of someone who
is ‘naturally
reticent’ and who conceals their sexuality ‘in reaction to family
and social pressure’ ‘or
for cultural or religious reasons of his
own choosing’ and states that such person would not have a well
founded fear of persecution (HJ and HT v SSHD [2010]: [22], [35]).
Likewise Lord Rodger hypothesises a ‘perfectly natural wish to
avoid harming his relationships with his family, friends and colleagues’
as a reason for concealment and repeatedly
uses the word ‘choice’ in
contrasting persecution with ‘social pressures’(HJ and HT v
SSHD [2010]: [61-2] emphasis added). Janna Weßels notes that, in
addition to being an untenable distinction in any persecutory environment,
this
may lead later decision-makers to place the burden on applicants to demonstrate
that the ‘material reason’ for their
concealment is fear - which was
also a distinctive feature of the UK discretion approach prior to HJ
(Weßels 2011: section 7; Millbank 2009a: 397; Johnson 2007) and a feature
of the dissents in S395.
Through the creeping glosses of
reasonableness[14] and choice and
the unreflexive dismissal of ‘social and family pressure’, the very
concealment which can’t be ‘required’
or
‘expected’ by decision makers may once again become a state that is
assumed as chosen, commonplace and natural, and
thereby viewed as a complete
defence to persecution rather than prima facie evidence of its real risk.
Lack of progress through the stage I identify as (e) ‘recognition
of multiple and intersecting forms of harm as persecution’,
may therefore
inhibit or even cause a return to stage (d), discretion reasoning. Considering
this unsteady progress, exemplified
by the Supreme Court decision in HJ and
HT v SSHD [2010], which is at once so progressive and yet arguably still
founded on an untenable dichotomy of ‘open’ and
‘discreet’
gay people (Weßels 2012), I argue that the laws of
small change and symbolic preparation help us to see a path through. Symbolic
change is directed towards the abstract level of rights pronouncements and small
change to the concrete application of rights claims
to specific experiences.
Both of these are necessary elements to a progressive jurisprudence in sexuality
claims, and both make each
other possible.
Symbolic
Preparation
Waaldijk argues that before equality rights were actually
granted in practice there had to be a period of ‘symbolic
preparation’
in each nation, whereby some formal legislation or
proclamation paved the way for later change. These acts could be relatively
abstract–
such as repealing criminal provisions that had not been enforced
for decades, or passing anti-discrimination guarantees that covered
only a small
sector of civic life, or other forms of equality laws of limited scope or
practical utility. The symbolism itself was
the significant aspect, in marking
recognition of lesbians and gay men as subjects within a shifting frame of
reference, from outsiders/objects
to insiders/subject of rights. The law of
symbolic preparation also draws our attention closely to the need for
preparation – as new ways of thinking about GLTB are integrated
into the polity and the collective imaginary.
The more familiar
and engaged a receiving nation is with sexual orientation rights claims
across a wide range of areas, the better equipped its decision makers
will be to
engage in a contextual and sensitive way with sexuality asylum claims. Formal
legislative equality guarantees or high
profile litigation across a diverse
range of rights help to trigger this familiarity and engagement – even in
unrelated areas
by different legal actors. Thus, receiving countries which have
only recently engaged with formal guarantees of sexual orientation
rights
(including those undertaken with some reluctance as part of the process of
entering the CoE, see Stychin (2003)), or which
have resisted introducing
measures to correct birth documentation for trans people, are likely to have
both harsher formal barriers
to LGBT claims and a weaker understanding of
them at a conceptual level. Put plainly, these countries are simply less likely
to “see” persecution
when it happens to LGBT.
The UK is an
interesting example of this phenomenon. Despite being a liberal democratic
nation with fairly low levels of homophobic
violence, the UK has had quite a
poor history on LGBT asylum claims through eras overseen by both conservative
and centre left political
governments. The UK was slow to accept sexuality as a
PSG, very resistant to seeing criminalisation as persecution, and applied
discretion
reasoning widely and persistently (see Millbank 2009a; UK Lesbian and
Gay Immigration Group 2010b; Miles 2011). This arguably reflects a legal context
in which gay sexuality was stigmatised through regimes of privacy and bare
‘tolerance’.
Although gay sex in private was
‘decriminalised’ in 1967 in England and Wales, an unequal age of
consent remained until
2001, and right through to the early 2000s sweeping and
discriminatory laws on public indecency for gay sex continued to be enforced.
There was also a rarely utilised but chilling anti-proselytising provision
concerning the ‘promotion’ of homosexuality
and ‘pretended
families’ (‘Clause 28’ of the Local Government Act, which
applied to local councils and public
education). Affirmative rights such as
anti-discrimination protections in employment and same-sex relationship
recognition came belatedly,
in 2003 and 2004, respectively (see Employment
Equality (Sexual Orientation) Regulations 2003 (UK); Civil Partnership Act 2004
(UK),
followed by more comprehensive rights through the Equality Act 2006
(UK)).
How the question of risk of persecution is answered depends very
much on decision-makers pre-existing understandings of what is proper
or
tolerable behaviour on the part of sexual minorities and on the part of
the state. These understandings in turn hinge upon implicit conceptions of both
human rights and sexual norms –
and these reflect the domestic social and
political context in which the decision maker lives. Symbolic preparation is
part of the
process of transforming those norms.
Small
Change
Few, if any, receiving countries have managed to progress
through all of the steps posed in the ‘standard’ sequences,
and many
have faltered on one particular step. Even receiving nations which are generally
positive on LGBT claims have tended to
address each step separately and
haven’t been capable of moving through several simultaneously.
Consideration of the law of
small change brings a greater optimism to an
examination of the chaos of inconsistent state practice, with the knowledge that
each
step needs to be taken more than once, and must be taken in tandem
with the process of symbolic preparation.
The law of small change reminds
us that progress will, indeed must, be incremental. Given the highly
individualistic nature of RSD
this may mean issues being addressed one case at a
time as opportunities present themselves. It is the steps at lower levels, as
claims are framed and understood, that build to larger change at institutional
and precedential levels. The above discussion on backsliding
suggests that the
‘trickle down’ effect of jurisprudence from higher courts may be
muted or undermined and so must be
accompanied by an ‘educating up’
effect. Equality interventions are therefore critical at lower levels in
decision making
within domestic systems, as is sensitivity and credibility
training and other forms of engagement with early stage decision-making,
such as
provision of country evidence, expert evidence, and critical assessment of
government compiled country evidence.
HJ and HT v SSHD
[2010] illustrates the on-going inter-relation of symbolic preparation and small
change. The death of discretion as a ‘reasonable
expectation’ and
the embrace of equality affirming language is a major victory, even as there are
suggestions that discretion
may yet come back to haunt us in another guise
through the approved process of dividing applicants into those who ‘live
openly’
and those who don’t prior to undertaking a persecution
analysis (HJ and HT v SSHD [2010]: [82]).
Lord Hope stated that
‘[gay people] are as much entitled to freedom of association with others
of the same sexual orientation,
and to freedom of self-expression in matters
that affect their sexuality, as people who are straight’ (HJ and HT v
SSHD [2010]: [14]). Lord Rodger held that
the Convention offers protection to gay and lesbian people—and, I would
add, bisexuals and everyone else on a broad spectrum
of sexual
behaviour—because they are entitled to have the same freedom from fear of
persecution as their straight counterparts.
No-one would proceed on the basis
that a straight man or woman could find it reasonably tolerable to conceal his
or her sexual identity
indefinitely to avoid suffering persecution. Nor would
anyone proceed on the basis that a man or woman could find it reasonably
tolerable to conceal his or her race indefinitely to avoid suffering
persecution. Such an assumption about gay men and lesbian women
is equally
unacceptable.[15] (HJ and HT v
SSHD [2010]: [76]).
These clear statements about the importance of
equality analysis in determining sexual orientation asylum claims are
accompanied by
a number of other discursive elements which signal a
transformation in English jurisprudence concerning sexuality. The framing of
the
issues in the case in the opening paragraphs of Lord Hope’s opinion,
itself the first placed in the judgment, is enormously
significant. In the place
of the usual specific and flat relaying of factual and legal claim- typically
expressed in the form: ‘This
case concerns X person from Y country who
claims to have experienced Z, made an application for refugee status on
<date>, had
a decision made by A, reaffirmed by B and C <on date/s>,
which decision is now under appeal on grounds of D’ - the judgment
opens
with a broad foundation of policy and principle. Lord Hope refers to historical
legal and political context in a manner that
establishes homophobic violence on
a global scale as a matter of deep concern, and moreover as something for which
‘we’
(‘our time’, ‘our own government’
‘remain with us’) must take responsibility.
The need for reliable guidance on this issue is growing day by day. Persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief.
The fact is that a huge gulf has opened up in attitudes to and understanding
of gay persons between societies on either side of the
divide. It is one of the
most demanding social issues of our time. Our own government has pledged to do
what it can to resolve the
problem, but it seems likely to grow and to remain
with us for many years. In the meantime more and more gays and lesbians are
likely
to have to seek protection here, as protection is being denied to them by
the state in their home countries. It is crucially important
that they are
provided with the protection that they are entitled to under the Convention
–– no more, if I may be permitted
to coin a well known phrase, but
certainly no less (HJ and HT v SSHD [2010]:
[2]-[3]).[16]
In and of
itself this is one of the strongest statements in support of the importance of
lesbian and gay equality rights from any
English court. But its significance is
immeasurably greater when set against the trivialisation and indifference to
homophobic persecution
evident in so many judgments of English courts and
tribunals on sexuality refugee claims in the preceding decade (Chelvan 2012).
Just as Lord Hope makes a large gesture towards homophobic violence as a
global phenomenon with national impact at the outset of his
opinion, Lord Rodger
makes the more intimate gesture, detailing what such violence actually means as
a lived experience. It is striking
that Lord Rodger is the only judge in any of
the available decisions in Mr HT’s litigation to actually record in the
extent
of HT’s victimisation and his injuries. In a short paragraph Lord
Rodger notes that HT was beaten by a mob who tore off his
clothes and threatened
to kill him, struck him with fists, sticks and stones, cut towards his penis
with a knife wounding him in
the stomach; that the police on arrival punched him
in the face and kicked him repeatedly, and that as a result of this violence
HT
spent two months in hospital (HJ and HT v SSHD [2010]: [44]).
Understated as this narration is, it provides a breathtaking contrast to the
preceding Court of Appeal decision which,
after detailing the procedural history
of HT’s case, beginning with his arrest and custodial sentence in the UK
for using a
false passport, recorded in two sentences the existence and exposure
of his relationship in Cameroon, concluding merely: ‘Later
HT was
attacked’ (HJ and HT v SSHD [2009]: [5, 6]).
Small
symbolic change, symbolic of larger changes
Perhaps the most enduring
impact of HJ and HT will be in elements that appear at first glance to be
its most trivial asides. There are a multitude of apparently minor elements
within the judgment which signify a shifting understanding of sexual
orientation. I suggest that these discursive elements could
be seen as small
symbolic change, altering and opening a frame of reference for larger change in
the future.
At a number of key junctures the judges self-consciously
reflect on language choice: discretion is repeatedly framed in quotation
marks,
described as a ‘euphemistic expression’ which ‘does not tell
the whole truth’ and renamed variously
as ‘concealment’,
‘lying’, ‘denying’, ‘hiding’ and
‘suppressing’ (Lord
Hope paras 21, 22, 33, 35(b), 38; Lord Rodger
para 72, 75, and also spelling out the practical implications of concealment,
para
63; Lord Collins para 101, 104; Sir John Dyson para 116,
121).[17] Concealment is also
expressly characterised by Lord Rodger and Sir John Dyson as a state
endured rather than ‘tolerated’ (HJ and HT v SSHD
[2010]: [80], [122]).
The judgments refer to ‘lesbians’ and
‘gay men’ (and Lord Rodger adds bisexuals) rather than using the
traditional
terminology of ‘homosexuals’ so favoured in law. Note by
contrast that the two joint majority judgments and both dissents
in S395
(2003) continued to utilise ‘homosexual’ despite submissions from
amicus curiae urging them to do otherwise. Moreover
both Lord Hope and Lord
Rodger reference heterosexual men and women as heterosexual and as
‘straight’, specifically locating majority sexualities. On first
reading the Supreme Court judgment
in HJ and HT what struck me was a
pleasant tone of warmth in the opinions, and also a somewhat surprising note of
informality. I can’t recall
another judgment from a superior court which
called heterosexual people ‘straight’, nor which referred to
one’s
‘mates’ - can you? How nice. But on reflection I
concluded that these were not merely incidental colloquialisms; rather,
such
variations in language reflect the sustained efforts of critical, feminist and
queer scholarship to alter the paradigms in which
sexuality, identity and
perspective are framed within mainstream jurisprudence (West 1990; Brooks 2006;
Delgado 1989; Fajer 1992
& 1994; Graycar 2008).
Firstly, naming
lesbians and gay men separately paves the way for recognition of gendered
difference in the experience of sexuality.
Lesbians have been routinely
disadvantaged in refugee adjudication (as elsewhere) by being subsumed under a
male paradigm of experience
(Millbank 2003; Neilson 2005). Stepping away from
‘homosexuals’, or even ‘gay people’ as a facially
neutral
but actually male-normative category renders it possible (although
certainly not inevitable) for adjudicators to identify and recognise
lesbians as
women and to take account of their experiences of persecution in the context of
gendered vulnerabilities. Naming heterosexual
people as heterosexual
– rather than as, say, ‘people’, ‘normal people’
or ‘society’ – also
challenges the pervasive and invisible
‘point-of-viewlessness’ (MacKinnon 1989; 213) that is heterosexual
hegemony. Naming
heterosexuals helps us to see how ‘general social
mores’ involve assumptions about the widespread and naturalised
display of heterosexual identification and relationships (including what
Lord Rodger calls the ‘small tokens and gestures of affection
which are
taken for granted between men and women’: HJ and HT v SSHD
[2010]: [77] emphasis added). This is a great help in undoing discretion
reasoning based on expectations of conformity implicitly
entailing concealment.
It is a powerful point directed to heterosexual readers when Lord Rodger says,
‘No one would proceed
on the basis that a straight man or woman could find
it reasonably tolerable to conceal his or her sexual identity indefinitely to
avoid persecution’ (HJ and HT v SSHD [2010]: [76]). Naming and
locating heterosexuality also makes it possible to unpack, for example, the
common finding made in sexuality
based refugee claims that it is a
‘general social expectation that all people marry’. Such findings
inform conclusions
that marriage cannot be persecution and that there is no
nexus to sexuality in forced marriage claims (Dauvergne and Millbank 2010).
Seeing and naming heterosexuality assists us to realise that such a
‘general social expectation’ is in fact an expectation
that people
be (or act as if they are) heterosexual and go on to prove, or enact, it by
entering into a heterosexual marriage (often
with attendant legal disabilities
for women) such that coercion to marry may indeed be persecutory on the basis of
sexual orientation
or gender.
There is a clarity of acceptance across all five judgments that sexual
orientation entails a wide range of self expression, that one’s
erotic
life is critical to self identity and that it can and must encompass a social
and emotional life. When Lord Rodger affirms
that the Refugees Convention is
there to protect the right ‘to live freely and openly as a gay man’
he specifies that
such a life includes the ability to show affection, have
friendships, socialise, be spontaneous, chat and flirt (HJ and HT v
SSHD [2010]: [82]). Lord Rodger’s reference to ‘male
heterosexuals’ playing rugby and drinking beer and gay men ‘going
to
Kylie concerts, drinking exotically coloured cocktails and talking about boys
with their straight female mates’ (HJ and HT v SSHD [2010]: [78])
has been a controversial sticking point (Hathaway and Pobjoy 2012). While I
admit to finding this passage grating on
first reading, I believe it deserves
closer attention, and, given the balance of Lord Rodger’s opinion, the
benefit of the
doubt - not least of all because he concludes the ‘Kylie
passage’ with a finding of equality (stating that ‘gay men
are to be as free as their straight equivalents in the society concerned to live
their lives in the
way that is natural to them as gay men, without fear of
persecution’: HJ and HT v SSHD (2010): [78]). Notably Lord
Rodger himself characterises his references to football and cocktails as
‘trivial stereotypical
examples’ and makes it clear that they are
intended to illustrate the point that a wide range of un-sexual social behaviour
is inextricably engaged by sexuality. In addition his notation of ‘mutatis
mutandis – and in many cases the adaptations
would obviously be great
– the same must apply to other societies’ (HJ and HT v
SSHD [2010]: [78]) makes it apparent that – unlike some refugee
adjudicators – Lord Rodger is not unthinkingly seeking to impose a
Westernised or narrowly stereotyped view onto the wide range of sexual
identifications and practices
around the world (Millbank 2009b). While I may be
alone in being left personally untouched by the enduring allure of Kylie Minogue
(Chelvan 2011), there is nonetheless a charming insider knowingness to
Lord Rodger’s ‘Kylie’. There are, after all, quite a lot of
women in the world called Kylie, but we all know
who he means, don’t we?
This reference, linking to a vision of straight and gay mates drinking and
gossiping companionably
together, along with Lord Hope’s use of
‘our’ and ‘we’, paints a discursive community in which
gay
men belong as insiders, not outsiders.
In the paragraph of the judgment directly following on from the one
discussed above, Lord Rodger continues that he does not mean
to ‘give any
false or undue prominence to the applicant’s sexuality or to sat that an
individual is defined by his sexuality’
(HJ and HT v SSHD
[2010]: 79). In what appears to be a response to Callinan and Heydon’s
dissent in S395 which had held that the applicants in question were
naturally discreet and not engaged in ‘politics to secure greater
toleration
of homosexuality in the society in which they lived’
(S395 (2003): [108]), Lord Rodger held that ‘an applicant for
asylum does not need to show that his homosexuality plays a particularly
prominent part in his life’ (HJ and HT v SSHD [2010]: 79).
To make this point he refers to two English men of ‘genius’, poet AE
Housman and mathematician Alan Turing,
whose ‘talents may have been at
least as significant to their identity as their homosexuality’ (ibid).
Alan Turing is
a fascinating choice of example given that he was prosecuted in
1952 for gross indecency after acknowledging a gay relationship in
the course of
making a statement to police about his home having been burgled. In order to
avoid gaol, Turing was forced to undertake
so called ‘chemical
castration’, involving a series of oestrogen injections while he served
out a year of probation,
following which there was further police surveillance
of his activities. In 1954 Turing committed suicide. Recently this aspect of
Turing’s history has gained more prominence. In 2009 then Prime Minister
Gordon Brown issued a statement of apology, acknowledging
that Turing and many
thousands of other British men convicted for gay sex under ‘homophobic
laws’ were ‘treated
terribly’ and that ‘Over the years
millions more lived in fear of conviction’ (Davies 2009). Past and current
UK
governments have refused to consider a posthumous pardon for Turing, which is
still the subject of a public campaign (Northerner
2012). Recollecting that had
Turing lived to challenge his conviction under the ECHR, like the Misters X from
Germany and Austria
through the 1950s and 1960s, his communication would most
likely have been dismissed as manifestly ill-founded. Even with additional
violation of chemical ‘treatment’ may not have been judged cruel and
inhumane treatment under the human rights law of
the time, given that this was
(to use the words of Callinan and Heydon JJ) ‘freely chosen’ in
order to avoid gaol, and
goal was a legitimate deterrent. Perhaps Lord Rodger
did not intend to evoke the shadow of human rights violations embedded just
below the surface of modern human rights law, and the violence in the law of
Britain’s own recent past. But then again, perhaps
he
did.
Conclusion
The application of human rights norms in
the assessment of sexuality based refugee claims continues to come down to
unconscious or
semi-conscious understandings of what it is to be a normal person
living an ordinary life. There can be no wholesale or unmediated
application of
human rights standards, even if such standards were stable artefacts, because of
the embedded role of distinctive
domestic ‘interpretative
communities’ in doing the work of refugee adjudication (Tobin 2012).
Challenging and actively reconstituting understandings of human rights
norms, sexuality and of normal life requires both big rights
claims and the
little details of life lived. In the face of pervasive lack of transparency at
lower levels of decision-making, lack
of information about overall trends in RSD
outcomes, apparently inconsistent state practice and resilient informal barriers
in refugee
adjudication, Waaldijk’s ideas of small change and symbolic
preparation give us a practical and optimistic framework to work
within. Symbolic preparation brings to light the human rights norms that are at
stake, while small change entails
the process of day to day application of these
norms to the specific fact situation of each applicant. Small change and
symbolic
change are in constant inter-play. Within even apparently small changes
such as use of language and choice of facts we may find symbolic
dimensions
indicative of, and contributing to, much greater change.
BIBLIOGRAPHY
Secondary Sources
Anker, D. (2002) ‘Refugee law, gender, and the human rights paradigm’, Harvard Human Rights Journal, 15: 133–154.
Billings, P. (2000) ‘A comparative analysis of administrative and adjudicative systems for determining asylum claims’, Administrative Law Review, 52: 253-303.
Chelvan, S. (2011) ‘Put Your Hands Up (If You Feel Love)’, Journal of Immigration, Asylum and Nationality Law, 25: 56–66.
Daley, K. and Kelley N. (2000) ‘Particular social group: a human rights based approach to Canadian jurisprudence’, International Journal of Refugee Law, 12: 148–174.
Dauvergne, C. (2008) Making People Illegal: What Globalisation Means for Migration and Law: Cambridge.
Dauvergne, C. and Millbank, J. (2003a) ‘Before the High Court: Applicants S396/2002 and S395/2002, a gay refugee couple from Bangladesh’, Sydney Law Review, 25: 97–124.
–– (2003b) ‘Burdened by Proof: How the Australian Refugee Review Tribunal has failed lesbian and gay asylum seekers’, Federal Law Review, 31: 299–342.
–– (2010) 'Forced marriage as a harm in domestic and international law', Modern Law Review, 73: 57–88.
Foster, M. (2007) International Refugee law and Socio-Economic Rights: Refuge from Deprivation: Cambridge.
Graycar, R. (2008) ‘Gender, Race, Bias and Perspective: OR, How Otherness Colours Your Judgment’ International Journal of the Legal Profession 15: 73-86.
Haines, R. (2003) ‘Gender Persecution’ in E. Feller, V. Turk & F. Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge: Cambridge University Press.
Hanna, F. (2005) ‘Punishing masculinity in gay asylum claims’, Yale Law Journal 114: 913–920.
Hathaway, J. (1991) The Law of Refugee Status, Toronto: Butterworths.
Hojem, P. (2009) Fleeing for Love, UNHCR Research Paper 181.
Johnson, T. (2007) ‘Flamers, Flaunters and Permissible Persecution’, Feminist Legal Studies, 15: 99–111.
La Violette, N. (2009) ‘Independent Human Rights Documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process, International Journal of Human Rights, 13: 437–76.
Marouf, F. (2008) ‘The emerging importance of “social visibility” in defining a “particular social group” and its potential impact on asylum claims related to sexual orientation and gender’, Yale Law and Policy Review, 27: 47–106.
Miles, N. (2011) No Going Back: Lesbian and Gay People and the Asylum System, London: Stonewall.
Millbank, J. (2003) ‘Gender, sex and visibility in refugee decisions on sexual orientation’, Georgetown Immigration Law Journal, 18: 71–110.
–– (2004) ‘The role of rights in asylum claims on the basis of sexual orientation’, Human Rights Law Review, 4:193–228.
–– (2005) ‘A preoccupation with perversion: the British response to refugee claims on the basis of sexual orientation 1989-2003’, Social and Legal Studies, 14: 115–138.
–– (2009a) ‘From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom’, International Journal of Human Rights, 13: 391–414.
–– (2009b) ‘The “Ring of Truth”: a case study of credibility assessment in particular social group refugee determinations’, International Journal of Refugee Law, 21: 1–33
Musalo, K. (2003) ‘Revisiting social group and nexus in gender asylum claims: a unifying rationale for evolving jurisprudence’, DePaul Law Review, 52: 777–808.
Neilson, V. (2005) ‘Homosexual or Female? Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims’ Stanford Law & Policy Review 16: 417.
Ramji-Nogales J. et al. (2009) Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform, New York: New York University Press.
Rehaag S. (2008) ‘Patrolling the borders of sexual orientation: bisexual refugee claims in Canada’, McGill Law Journal, 53: 59 –102.
Soucek, B. (2011) ‘Social group asylum claims: a second look at the new visibility requirement’, Yale Law and Policy Review, 29: 337–345.
Stychin, C. (2003) Governing Sexuality: The Changing Politics of Citizenship and Law Reform, Portland: Hart Publishing.
Tobin, J. (2012) ‘Assessing LGBTI refugee claims: Using human rights law to shift the narrative of persecution within refugee law’, New York Journal of International Law and Politics, 44: 447–484.
Tuitt, P. (1997) 'Human Rights and Refugees' International Journal of Human Rights 1: 66-80.
Waaldijk, K. (2001a) ‘Small change: how the road to same-sex marriage got paved in the Netherlands’, in R. Wintemute and M. Andenaes (eds) Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, Oxford: Hart Publishing.
–– (2001b) ‘Towards recognition of same-sex partners in European Union law: expectations based on trends in national law’, in R. Wintemute and M. Andenaes (eds) Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, Oxford: Hart Publishing.
Waaldijk, K. et al. (2010) Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity: Thematic Study Netherlands. Online. Available: <http://fra.europa.eu/fraWebsite/attachments/LGBT-2010_thematic-study_NL.pdf> (accessed 23 January 2012).
Weßels, J. (2011) ‘Sexual orientation in refugee status determination’, Working Paper 74, Oxford: Refugee Studies Centre.
-(2012) ‘HJ (Iran) and Another: Reflections on a New Test for Sexuality Based Claims in Britain’, 24 INT’L J. REFUGEE L. (forthcoming).
Wintemute, R. (1997) Sexual Orientation and Human Rights: The United States Constitution, the European Convention and the Canadian Charter, revised edn, Oxford: Clarendon Press.
Other
Amnesty International (2001) Crimes of Hate, Conspiracy of Silence: Torture and Ill Treatment Based on Sexual Identity.
Asylum Aid (2011) Unsustainable: The Quality of Decision Making in Women’s Asylum Claims.
Ban, K. M. (2010) ‘Confront Prejudice, Speak Out against Violence, Secretary-General Says at Event on Ending Sanctions Based on Sexual Orientation, Gender Identity’, Press Release. Online. Available: <http://www.un.org/News/Press/docs/2010/sgsm13311.doc.htm> (accessed 15 February 2012).
Brief for the United Nations High Commissioner for Refugees as Amicus Curiae in Support of Petitioner (2002) Rivera-Barrientos v. Holder 658 F.3d at 1222.
Council of Europe Commissioner for Human Rights (2011) Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2nd edn, Strasbourg: Council of Europe Publishing.
Caroline Davies, ‘PM's Apology to Codebreaker Alan Turing: We were Inhumane’ (2009) The Guardian 11 September 2009.
European Council on Refugees and Exiles, ELENA Research Paper on Sexual Orientation as a Ground for Refugee Status (1997) Online. Available: <http://www.ecre.org/topics/areas-of-work/protection-in-europe/161.html> (accessed 19 January 2012).
European Union Council Directive (2004) 2004/83/EC of 29 April 2004, Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, O.J. (L 304).
European Union Council Directive (2011) 2011/95/EC of 13 December 2011: Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)
GENSEN, ‘Gender Related Asylum Claims in Europe’ (2012) http://helsinki.hu/wp-content/uploads/GENSEN-Report-FINAL.pdf
Gray, A. (2011) ‘Credibility Assessment in LGB Cases: the Case of the UK (Paper delivered at Fleeing Homophobia Conference, 5 September 2011). Online. Available: <http://www.rechten.vu.nl/nl/onderzoek/conferenties-en-projecten/conference-fleeing-homophobia/submitted-papers/index.asp> (accessed 19 January 2012).
Human Rights Watch & International Lesbian and Gay Human Rights Commission (1998) Public Scandals: Sexual Orientation and Criminal Law in Romania.
–– (2003) More Than a Name: State-Sponsored Homophobia and its Consequences in Southern Africa.
Human Rights Watch (2009a) Together, Apart: Organizing around Sexual Orientation and Gender Identity Worldwide.
-(2009b)"Not Worth a Penny": Human Rights Abuses against Transgender People in Honduras.
- (2010) “We
Are a Buried Generation”: Discrimination and Violence against Sexual
Minorities in Iran.
-(2012) “They
Hunt Us Down for Fun”: Discrimination and Police Violence Against
Transgender Women in Kuwait.
Jansen, S. and Spijkerboer, T. (2011) Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe. Online. Available: <http://www.rechten.vu.nl/nl/Images/Fleeing%20Homophobia%20report%20EN_tcm22-232205.pdf> (accessed 4 February 2012).
Northerner Blog, ‘Government Rejects a Pardon for Computer Genius Alan Turing’ The Guardian 7 February 2012.
UK Lesbian and Gay Immigration Group (2010a) Annual Report.
–– (2010b) Failing the Grade.
UNHCR (2002a) Guidelines on International Protection No 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc, HCR/GIP/02/02.
UNHCR (2002b) Guidelines on Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 30 U.N. Doc HCR/GIP/02/01.
UNCHR (2008) UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (21 November 2008).
UNHCR (2009) Selected Documents Relating to Sexual Orientation and Gender Identity Relevant to International Refugee Protection.
UNHCR (2010) Summary Conclusions: Asylum-Seekers and Refugees Seeking
Protection on Account of their Sexual Orientation and Gender
Identity.
UNHCR (2011a) Discriminatory laws and practices and acts of
violence against individuals based on their sexual orientation and gender
identity.
UNHRC (2011b) Human Rights Sexual Orientation and Gender Identity, A/HRC/17/L.9/Rev.1.
UNHCR (2011c) Working with Lesbian, Gay, Bisexual, Transgender & Intersex Persons in Forced Displacement.
Wolf-Watz, O. et al. (2010) Norm-Critical Study of the Swedish Asylum Examination. Online. Available: <http://www.migrationsverket.se/download/18.1c1b3f51128bf913da580001304/normkritiskstudie_en.pdf> (accessed 19 January 2012).
Cases
AJ v Secretary of State for the Home Department (AJ Risk to Homosexuals) [2009] UKAIT 00001 (UK)
Afdeling Rechtspraak Raad van State (ARRvS) (1981) no A-21113, Rechtspraak Vreemdelingenrecht (13 August 1981)
Appellants S395/2002 and S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Austl)
Applicant A v MIEA (1997) 190 CLR 225 (Austl)
Atta Fosu v Canada (2008) FC 1135 (Can)
Benitez Ramos v Holder 589 F3d 426 (7th Cir 2009) (US)
Canada (Attorney General) v Ward [1993] 2 SCR 689 (Can)
Hernandez-Montiel [2000] USCA9 421; 225 F3D 1084 (9th CIR 2000) (US)
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (UK)
HJ and HT v Secretary of State for the Home Department [2009] EWCA Civ 172 (UK)HJ (Iran) v Secretary of State for the Home Department (HJ Homosexuality) [2008] UKAIT 00044 (UK)
J v Secretary of State for the Home Department [2006] EWCA Civ 1238 (UK)
JM v Secretary of State for the Home Department [2008] UKIAT 00065 (UK)
MK (Lesbians) Albania v Secretary of State for Home Department [2009] UKAIT 00036 (UK)
Okoli v Canada (2009) FC 332 (Can)
OO (Sudan) v Secretary of State for the Home Department [2009] EWCA (Civ) 1432 (UK)
RG (Colombia) v Secretary of State for the Home Department, [2006] EWCA (Civ) 57 (UK)
Regina v Immigration Appeal Tribunal ex parte Shah [1999] UKHL 20; [1999] 2 AC 629 (UK)
Rivera-Barrientos v Holder 658 F3d 1222 (10th Cir 2011) (US)
Rojo v Holder US App LEXIS 377 (Ninth Cir, 2011) (US)
Refugee Review Tribunal Reference V95/03527 (Unreported, Brewer, 9 February 1996) (Austl)
SB (Uganda) v Secretary of State for the Home Department [2010] EWHC 338 (Admin) (UK)
SW v Secretary of State for the Home Department (SW Lesbians) [2011] UKUT 00251 (IAC) (UK)
X v Germany No 104/55 (1955) 1 YB 228
X v Germany No 167/56 (1956) 1 YB 235
X v Germany No 261/57 (1957) 1 YB 255
X v Germany No 530/59 (1960) 3 YB 184
X v Germany No 600/59 (2 April 1960)
X v Germany No 704/60 (1960) 3 Coll Dec
X v Austria No 1138/61 (1963) 11 Coll Dec 9
X v Germany No 1307/61 (1962) 5 YB 230
X v Germany No 2566/65 (1967) 22 Coll Dec 35
XY (Iran) v Secretary of State for the Home Department [2008] EWCA
(Civ) 911 (UK)
[♦] Professor of Law,
University of Technology Sydney. This chapter arises from a paper delivered to
the Fleeing Homophobia Conference,
VU University Amsterdam, September 2011. Many
thanks to Sabine Jensen and Thomas Spijkerboer for the invitation, VU and UTS
for financial
support to attend, to Anthea Vogl for research assistance and to
Thomas Spijkerboer for comments on an earlier draft. This research
is supported
by grant DP 120102025 from the Australian Research
Council.
[1] My work to date has
largely focused on Australia, the United Kingdom, Canada and New Zealand, with
less systematic consideration
of case law from the United States. While this
research addresses only written decisions from English-speaking jurisdictions
(and
a handful of decisions in French from the Canadian set), I contend that the
same broad themes appear across several countries in
Europe, even if there are
differences in emphasis. I acknowledge that there are also many major structural
and procedural barriers,
including fast-tracking procedures, safe country
designations, the use of detention, reduced avenues of appeal and grounds of
appeal,
the interdiction of boats, excision of territory and attempts to expel
applicants to non-signatory countries for processing. Here
I focus on barriers
arising within the RSD process, limited though that
is.
[2] X v Germany No
104/55 (1955) 1 YB 228; X v Germany No 167/56 (1956) 1 YB 235; X v
Germany No 261/57 (1957) 1 YB 255; (196); X v Germany No 530/59
(1960) 3 YB 184; X v Germany No 600/59 (2 April 1960); X v
Germany No 704/60 (1960) 3 Coll Dec ; X v Austria No 1138/61 (1963) 11 Coll
Dec 9; (196); X v Germany No 1307/61 (1962) 5 YB 230; X v Germany
No 2566/65 (1967) 22 Coll Dec
35.
[3] In Germany for example,
there were contradictory decisions through the 1980s and early 1990s (discussed
in European Council on Refugees
and Exiles 1997: 9). Janna Weßels argues
that international jurisprudence on sexuality and PSG remains
‘confused’
(Weßels 2011:
12).
[4] There were 23 votes in
favour, 19 against, and 3 abstentions.
[5]
Sean Rehaag unearthed outcome statistics for 2006 in Canada through freedom of
information claims (Rehaag 2008). Rehaag has since
made this data publically
available:
<http://ccrweb.ca/documents/rehaagdata.htm>
(accessed 17
January 2012), under the link ‘Raw data’. Unfortunately such access
to information laws cannot be used
if the government does not in fact
collect this information in the first
place.
[6] As of June 2011, 33
member states within the EU explicitly recognized sexual orientation as a PSG in
either their national legislation
or case law (Council of Europe Commissioner
for Human Rights 2011).
[7] It
should be noted that a number of European countries, such as Sweden, Denmark and
Norway, did not in fact begin here as they addressed sexual orientation
and gender claims only under subsidiary or complementary protection regimes
(Denmark continues to do so). While this afforded important protections to
individual claimants it arguably perpetuates an inequitable
status more broadly,
by reinforcing the idea that GLBT are less entitled to Convention protections.
For this reason I argue that
accepting the PSG is still a necessary step
before developing an equitable persecution analysis.
[8] A further difficulty is that
decision-makers may then uncritically accept that the repeal of criminal
sanctions means there is no
further risk of persecution (see Dauvergne and
Millbank 2003b). This approach was recently critiqued in the United States:
Rojo v Holder (2011).
[9]
In the United States, these issues are more often considered through the frame
of “visibility.” In one sense, this concerns
whether the applicant
will be “visible” or identifiable to potential persecutors: Millbank
(2003); Hanna (2005). Visibility
also increasingly appears in U.S.
jurisprudence requiring collective “social visibility” in order to
define a PSG. This
may lead to the finding that there is no PSG at all in
sending countries where the entire class of applicants are closeted and the
broader society disclaims their existence (Marouf 2008: 79–88). See also
Soucek (2011). The BIA requirement of “social
visibility” was
stringently criticised by the Court of Appeal in the Seventh Circuit
(Ramos v Holder (2009)). However the “social visibility”
approach was recently upheld by the Court of Appeals in the Tenth Circuit
(Rivera-Barrientos v Holder (2011)), despite being contrary to UNHCR
policy guidance and to the submissions of UNHCR intervening in that case (see
UNHCR 2002a;
Brief for the United Nations High Commissioner for Refugees 2002:
1222). The “visibility” approach has also been taken
in France, with
troubling results for GLB (Jansen and Spijkerboer 2011:
36).
[10] This was expressly
disapproved by Sir John Dyson (HJ and HT [2010]
[129]).
[11] In 2005 and 2007,
respectively, Sweden and the Netherlands amended administrative policy guidance
for adjudicators to instruct that
lesbians and gay men could not be required or
expected to hide their sexuality in their countries of origin (Hojem 2009: 15;
Jansen
and Spijkerboer 2011: 35). Note that these and other sources also
indicate on-going difficulties putting such guidance into practice
(see
Wolf-Watz et al.
2010)
[12] See a recent Canadian
case involving pre-removal risk assessment of a gay Guyanan national in which
the officer stated, ‘While
the applicant may feel constrained to exercise
discretion with respect to his sexual orientation in some settings, evidence
that
he need not always feel constrained to do so causes me to find that the
sometime exercise of discretion does not constitute cruel
and unusual treatment
or punishment’ (quoted on review in AB v Minister for Citizenship and
Immigration (2010) - in which the decision was overturned). See also the
mixed policy messages and confusion in the decision-making process reported
in
Sweden (Wolf-Watz et al. 2010: 3.4.1,
4.4).
[13] Callinan and Heydon JJ
reinscribe discretion as the ‘choice’ of applicants but go further
to contend that it is in fact
not only a ‘natural’ but a neutral
state of social grace encompassing all people in a manner ‘by no means
unusual.
In many societies, both heterosexual and homosexual couples regard
their domestic and sexual arrangements and activities as entirely
private’
(S395 (2003): [110).
[14]
James Hathaway and Jason Pobjoy’s recent critique of the Supreme Court
decision in HJ and HT involves a proposal that refugee protections ought
to be limited to behaviour which is ‘reasonably necessary’ to
express
one’s sexuality (Hathaway and Pobjoy 2012). This is a testament to
the enduring intuitive appeal of external judgments of
‘reasonableness’.
Elsewhere I have argued that this suggestion is
dangerously retrograde because ‘reasonableness’ in refugee case law
to
date has been a by-word to date for lesser, not equal, protections, for gay
and lesbian applicants (Millbank 2012 see also Goodman
2012); through it
discretion has lived a second life in English case law, and it would be
loathsome to see it revived for a
third.
[15] See also HJ and
HT (2010): [53], [65] (stressing that the underlying rationale of the
Convention is to ensure that people are free to live openly without
fear of
persecution).
[16] The contrast
with S395 could not be more stark; Gleeson CJ in dissent opens with a
statement about the process of judicial review of administrative action
which
stresses the utmost importance of confining review to the case as originally
made out.
[17] The exchange of
concealment for discretion reflects the submissions of the Equality and Human
Rights Commission as second intervenor:
see eg HJ and HT v SSHD [2010]
paras 4, 44.
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