Chapter twelve: Asylum and Immigration

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People cross borders for many reasons, to seek employment or educational opportunities, join family members, or flee persecution. In many respects migration does not implicate the sexual orientation or gender identity of those involved, but in two areas it does. The cases in this chapter focus on how LGBT individuals succeed or fail in obtaining protection as applicants for asylum, and residency rights as unmarried partners of nationals in their country of destination.

Asylum and Protection Issues

The main international instruments governing determinations of refugee status is the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Article 1A(2) of the Convention defines a refugee as “any person who . . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. With certain exceptions that are not relevant here, the Convention prohibits State Parties from returning refugees to their countries of origin. To qualify for refugee status, therefore, successful applicants must demonstrate (1) a well-founded fear of persecution (2) on one of the above-enumerated grounds and (3) lack State protection, because the State is either unable or unwilling to provide such protection. If a person does not fulfil the requirements for refugee status, he or she may nevertheless qualify for protection outside his or her country of origin under other international human rights treaties.^[1]

A significant volume of research documents both the harms suffered by LGBT individuals at the hands of State and non-State actors and how LGBT claims for asylum have fared in various national systems.^[2] In addition, in 2008 the Office of the UN High Commissioner for Refugees (UNHCR) published a Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. This sets out UNHCR’s analysis of the issues raised by LGBT asylum seekers, including those addressed in this chapter.^[3] Although the arguments overlap, both UNHCR’s guidance and national court jurisprudence have held that sexual orientation and gender identity are included within “membership of a particular social group”.^[4] According to the UNHCR, the latter is:

a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.^[5]

Courts first began to grant refugee status to individuals fearing persecution on the basis of their sexual orientation or gender identity in the 1980s.^[6] In one of the earliest decisions, the US Immigration & Nationality Service (INS) argued against recognising a gay man from Cuba as a member of a particular social group. At this time, a number of States in the USA still criminalised consensual same-sex conduct. The INS reasoned that “socially deviated behavior, i.e. homosexual activity is not a basis for finding a social group” and that recognizing the applicant as a member of a social group “would be tantamount to awarding discretionary relief to those involved in behavior that is not only socially deviant in nature, but in violation of the laws or regulations of the country as well”.^[7] The Board of Immigration Appeals disagreed. It distinguished first between criminal conduct and status, noting that the evidence demonstrated that it was not the applicant’s sexual activity that “resulted in the governmental actions against him in Cuba” but rather “his having the status of being a homosexual”. Second, the Court noted the extreme nature of the mistreatment. The applicant’s testimony showed that he was routinely detained, harassed, subjected to repeated physical and verbal abuse, and that the government eventually ordered him to leave the country or face imprisonment. This case did not simply involve “the enforcement of laws against particular homosexual acts” or “gay rights”. The Board confirmed the immigration judge’s order that the applicant should not be deported to Cuba. In 1994, the then-Attorney General Janet Reno ordered that this decision, Matter of Toboso-Alfonso, be considered precedent, making it binding on the decisions of all individual asylum officers, immigration judges, and the Board of Immigration Appeals.^[8] Within Europe, twenty-six states now provide in their domestic legislation that sexual orientation is included in the concept of “particular social group.”^[9]

Courts have also recognised that transgender individuals are members of a social group. In a case from 2000, a US appellate court held that a gay man with a “female sexual identity”, who dressed in a feminine manner and wore his hair and nails long, was a member of a particular social group in Mexico. In reaching this decision, the court rejected the reasoning of the immigration judge, who had found that the applicant’s gender identity was not immutable because he could make the decision not to dress as a woman and in fact sometimes wore men’s clothing. For the court, the fact that the applicant could choose to wear male clothing or cut his hair short was irrelevant. It defined “particular social group” as “one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.^[10] Similar conclusions have been reached in Canada, France and several other European States.^[11]

Although their recognition as a social group is fairly established in most jurisdictions, LGBT asylum seekers must still prove that they have a “well-founded fear of persecution”. Here the issues are both subjective and objective. The applicant must demonstrate actual fear and that there is a reasonable basis for it. Only fear for which there is a reasonable basis will be considered “well-founded”. Since sexual orientation and gender identity are not visible in the way that race and nationality and even religion may be, asylum decision-makers have been preoccupied with obtaining “proof” that applicants are in fact gay or lesbian or bisexual or transgender. This information can be difficult to establish. Adjudicators may rely on their own stereotypes of how gay men or lesbian women look and act, threatening the impartiality of decisions. In Razkane v. Holder, for example, the US Court of Appeals for the 10^th Circuit found that the immigration judge had wrongly concluded that a man from Morocco was not homosexual because he did not dress in an “effeminate manner” or have “effeminate mannerisms”. The court cited appellate opinions that had rejected similar prejudices as grounds of adjudication. In a rebuke to the original judge, the court ordered that the matter be assigned to a different immigration judge should further proceedings be warranted.

In hostile environments, the closet is often the safest option for LGBT individuals. They may not be open about their sexual identity even (or especially) to close friends and family members. Such individuals may not have experienced attacks, threats or violence and thus are unable to show evidence of past persecution. This may make it difficult for them to demonstrate that their fear of future persecution is well-founded. In addition, recognising the hidden nature of sexual orientation, some courts developed a doctrine of discretion. They reasoned that if individuals did not have a well-founded fear of persecution if they could return to their countries of origin and continue a deeply closeted lifestyle. Some of the cases in this chapter explain why courts rejected such reasoning.

In Appellant S395/2002 v. Minister for Immigration, the High Court of Australia examined a decision of the Refugee Review Tribunal that had denied asylum on the grounds that the appellants could avoid persecution by maintaining a “discreet” lifestyle. The Tribunal had reasoned that, since the appellants (two men from Bangladesh) had conducted themselves discreetly in the past and had not suffered serious harm because of their sexual orientation, they would not experience harm in the future.^[12] The High Court found it was an error of law to reject a claim under the Refugee Convention because an applicant could avoid harm by acting discreetly. It stated that “persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate harm by taking avoiding action within the country of nationality”. It was a fallacy to assume that the applicants’ conduct was not influenced by fear of persecution, because they were likely to have modified their behaviour out of fear. In this case, the Tribunal had failed to consider “whether the appellants acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh”.

This decision of the High Court of Australia had far-reaching influence in other jurisdictions. A similar and more recent decision comes from the United Kingdom. In the 2010 case of HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, the Supreme Court considered the unrelated appeals of two gay men. The lower court had concluded that each appellant could reasonably be expected to tolerate the requirement of discretion in his country of origin. Writing for the court, Lord Rodger found this reasoning “unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution”. Lord Rodger emphasised that “sexual identity is inherent to one’s very identity as a person”. An applicant for asylum need not “show that his homosexuality plays a particularly prominent part in his life. All that matters is that he has a well-founded fear that he will be persecuted because of that particular characteristic which he either cannot change or cannot be required to change”.

The UK Supreme Court thus largely adopted the reasoning of the UNHCR and the Equality and Human Rights Commission. Their joint intervention had submitted that there is “no place for the question posed by the Court of Appeal, namely whether ‘discretion’ is something that such applicants can reasonably be expected to tolerate, as this is tantamount to asking whether individuals can be expected to avoid persecution by concealing their sexual orientation, the very status protected by the 1951 Convention”.^[13]

LGBT-related persecution is often deeply personal. Violence may be meted out at the hands of family members, especially to lesbians in traditional societies where women have a smaller public role. Critics have noted that the paradigmatic asylum case assumes public harm, making it harder for women who experience harm in the private sphere to obtain asylum.^[14] Where the State is not directly involved in acts of persecution, courts have characterised the harm as “purely private” and have failed to ask whether the State concerned was unwilling or unable to offer protection.^[15] In the US case of Nabulwala v. Gonzales, decided by a federal appellate court, a lesbian woman from Uganda claimed that she had suffered repeated abuse at the hands of her family members, including a family-arranged rape, and had been beaten up by an angry mob. The immigration judge found her evidence credible but said that the incidents were isolated and amounted to “private family mistreatment” rather than persecution. Because the abuse was not sponsored or authorised by government, the immigration judge denied her application for asylum. The US Court of Appeals for the 8^th Circuit found the judge had erred in failing to consider whether the harm had been inflicted by persons whom the government was unable or unwilling to control.

Similarly, in In re Appeal for the Cancellation of Denied Refugee Status Recognition, the Seoul Administrative Court considered the claim of a gay man from Pakistan who had been threatened by his wife’s family and his own father, and blackmailed by private actors. The Court took into account that Pakistan criminalised consensual same-sex sexual activity, and found that persecution could occur at the hands of government or private actors where government protection was not available. Because the applicant had been victimised by family members and because Pakistan was known to criminalise homosexuality, the court concluded that the applicant had a well-founded fear of persecution and qualified as a refugee.

Residency Rights as Partners

The South African and Namibian cases concern the provision of immigration benefits to unmarried same-sex partners.^[16] In National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs, South Africa’s Constitutional Court ruled that excluding spouses who were foreign nationals from preferential immigration treatment violated the equality and dignity sections of the Constitution. The court emphasised that opposite sex partners were able to choose whether or not to establish a legally recognised relationship. Because gays and lesbians were not entitled in law to marry, limiting immigration privileges to married spouses was unconstitutional. The court thereby focused on substantive rather than formal equality. The Supreme Court of Namibia reached the opposite conclusion in Chairperson of the Immigration Selection Board v. Frank and Another. It reversed a ruling of the High Court, which had found that Liz Frank’s long-term relationship with a Namibian woman should be taken into consideration because of the constitutional right to equality. According to the High Court the relationship was analogous to common law or de facto relationships of opposite-sex partners. The Supreme Court disagreed. A same-sex couple, even one raising a child together, could never be considered to be a family under Namibian law because, according to the Court, a family relationship focused on procreation. The Court declared that the South Africa decision was based on a constitution that specifically prohibited discrimination on grounds of sexual orientation. Nevertheless, the Court referred the matter back to the Immigration Board (because of procedural irregularities in the application process), and Frank eventually won the right to residency in Namibia on the basis of her professional qualifications.