The views expressed in the Global Migration Research Paper Series are those of the author and do not represent the views of the Graduate Institute of International and Development Studies. On the other hand, the contribution of civil society on the subject is dense and in constant development, together with the burgeoning interest of academia.
The Legal Framework for Protection
The UNHCR
The Refugee Convention of 1951, the main pillar on which the international asylum system is based, does not explicitly mention sexual orientation and/or gender identity as one of the possible grounds for persecution. Binder, "Gender and the 'Membership in a Particular Social Group' Category in the 1951 Refugee Convention," Columbia Journal of Gender and Law.
Human rights law and the prohibition of refoulement
When it comes to regional human rights mechanisms, it is interesting to analyze the jurisprudence of the two main European courts regarding refoulement of SOGI claimants, as together they have produced most of the jurisprudence on this subject. Article 3 of the European Convention on Human Rights26 prohibits torture and inhuman or degrading treatment or punishment without exceptions or limitations.
Contribution from civil society
I will do this by focusing on a specific key moment of the entire asylum-seeking process: refugee status determination (RSD), which is the crucial process that an asylum seeker must go through in order to be granted refugee status. or any other. forms of international protection granted. To maintain coherence, I will refer to the constituent elements of refugee status as listed in the Refugee Convention, because the definition of refugee found there has historically served as the main reference for determining who deserves international protection.
Refugee Status Determination
Well-founded fear
- Concealment
- Country of origin information
- Late disclosure (sur place claims)
According to Art.1(2) of the Refugee Convention, one of the constitutive requirements for a refugee is that the person flees due to a well-founded fear of being persecuted. One of the arguments raised in the courts to justify a lack of objective "well-founded fear" is the so-called "concealment" (sometimes referred to as the "discretion claim"). Country of origin information is still heavily dependent on establishing the objectivity of.
Another argument sometimes used against SOGI plaintiffs that this time is said to undermine the subjectivity of the "well-founded fear" test is that of late disclosure (also known as sur place claims). In short, this reasoning is applied when claimants 'disclose' their sexual or gender identity at a later stage in the asylum procedure. This is sometimes seen as a weakening of the subjectivity of the "well-founded fear" test, because if the claimant was really afraid for this reason, he would tell right away.
Persecution
- Criminalisation
42 In addition to the Yogyakarta Principles already mentioned, a recent important measure of the inclusion of SOGI rights in the international human rights law-making process was the appointment of the first UN Independent Expert on Violence and Discrimination based on sexual orientation and gender identity on the part of the person. Rights Council, Mr. In determining whether violations of certain rights constitute harassment damages, courts and judges must consider "the nature of the right sought to be exercised." 49 UNHCR, International Protection of Refugees: Interpretation of Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001.
In the case of Amanda DuValle, one of the elements that the applicant's lawyer argues is to prove the risk for Amanda to be subject to torture if returned to her country of origin. 62 For a complete overview of the criminalization and persecution of trans people around the world, see Trans respect vs. Observations on the Judgment of the Court of Justice of the European Union in X, Y and Z v.
The causal link
This lack of understanding of the repressive effect that criminalizing laws can have on SOGI applicants, or this lack of interest in undermining current interpretive trends, is slowly changing and there are more and more examples of good practice to refer to. I agree with Sabine Jansen when she writes that this is simply "based on the correct interpretation of the refugee definition":76 if, as we have already seen, it can be concluded from Article 33 of the Convention on Refugees that a threat to life or freedom always means persecution because of the five reasons for persecution, and if, as we will see later, members of sexual (and sexual) minorities who come from homo- and transphobic countries really belong to a "certain social group", then it is only obvious that the criminalization of their identity and the way they express it, undoubtedly means, for the reasons just mentioned, a "threat to freedom" (if not to "life"), that is, an undoubted persecution.77. The best-known criticism of the causation misunderstanding when it comes to SOGI claims comes from a paper entitled
Queer cases make bad law" by Hathaway and Pojboy,81 which not only deals with causation, but also analyzes the issue of "well-founded fear" and of "discretion", arguing that the Australian and British courts have the right to in order to achieve their preferred result in the two well-known cases in which they completely rejected the "discretion reasoning".82 First, the authors argue debatably that the Courts failed to find a "well-founded fear" of prosecution by the plaintiffs not. roughly saying that, if one could be understood to be "discreet" if one returned home and thereby avoid persecution, then the validity of the fear could not be ascertained. See V. Neilson, "Uncharted Territory: Choosing an Effective Approach in Transgender-Based Asylum Claims," on the need for punitive intent of the offender in trans-specific cases, Fordham Urban Law Journal free to enjoy themselves to Kylie -going to concerts and drinking. exotically colored cocktails and talking about boys with their straight female partners”83), the courts have misunderstood the importance of the connection between refugee law and non-discrimination law that informs the nexus requirement. In fact, the authors first argue that the courts have done well in determining that "if risk arises from sexual identity per se, then the nexus requirement is satisfied"84, and that the nexus requirement is satisfied if the risk occurs "in response to at least some activities related to the person's identity"85, but then asserts that "there is, however, a critical distinction between recognizing that a meaningful understanding of non-discrimination norms as the basis of the nexus requires attention to action -based risks require. , and the position suggested in S395 and HJ and HT that there are no limits to which action-based risks are relevant".86 This, according to them, is because "if the activity precipitating the risk is no more than marginally connected to one of the forms of protected status, then the ensuing risk of being persecuted cannot reasonably be said to be 'for reasons of' a Convention ground".87 What this basically means is that the authors consider the nexus requirement satisfied only with respect to certain non-marginal "action-based risk activities" related to sexual orientation and gender identity, but not to all.
Membership of a particular social group
- Credibility
The protected characteristics approach can be understood to identify a set of groups that constitute the core of social perception analysis. However, with those few cases at hand, it is easy to sketch how recognizing transgender individuals as MPSG simply followed in the footsteps of recognizing sexual orientation for the same reason. For an overview of the case law on this topic, see ICJ, A Comparative Law Casebook, 286.
However, it is true that transgender asylum seekers are mostly persecuted as homosexuals, as we saw beforehand. In the case of SOGI claimants, one of the issues to be determined is precisely the credibility of the claimants. This is problematic in many respects, which is why I will dedicate an entire subsection of the next chapter to the issue of stereotyping.
State protection
- Internal relocation alternative
One of the obstacles that SOGI applicants face when they have to prove a lack of state protection is the so-called "internal relocation option". This alternative is not mentioned in the refugee definition, but has been derived through interpretation. Moreover, since the concept can only arise in the context of the assessment of a refugee claim on its merits, it cannot be used to deny access to refugee status determination procedures.135.
The UNHCR SOGI guidelines state that in most cases intolerance against LGBTI persons would exist nationwide, and thus an alternative to internal relocation should not be considered a possibility as it would expose the claimant to the same type of persecution or force them to secrecy.136 Like all other aspects we have seen, the internal relocation alternative has been widely used as a ground for refusing refugee status and its application is at the center of many debates. There are also cases where relocation shelter is seen as a safe measure to avoid prosecution, even in the case of criminalizing countries. 4: “Alternative to internal flight or relocation” under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees, UN Doc.
Analysis from a Queer Theory Perspective
Queer theories: a useful tool
According to Diane Otto, "a critical look at queer theory can offer new insights into how international law works to reinforce unequal relations of power, resources and knowledge, and how we can resist it".5. Following this awareness, the forthcoming queer analysis of the refugee status determination process for transgender asylum seekers will attempt to reveal three different narratives of power that I believe underlie the way RSD is implemented.
The narratives of Power
- The gender binary as Power
- The Western cultural stereotype as Power
- The border as Power
On how this confusion is still very much present in international law and has only recently been overcome, for example with the contribution of the Yogyakarta Principles, see D. Finally, the ongoing narrative of power present in the life of every (trans)asylum seeker , and what may be the most difficult to overcome is the border. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s, Dordrecht, Springer Netherlands A concept already mentioned during the drafting of the 1967 Protocol, see J.
The crux of the matter is perhaps right here: trans people are "uncategorizable," at least in the eyes of contemporary society. This, applied to both redistribution and recognition policies, is, according to the author, the way out of the "dilemma of justice": N. Gender and the Category "Membership of a particular social group" of the 1951 Refugee Convention .” Columbia Journal of Gender and Law 10, no.
International Protection in Court: Asylum Jurisprudence of the EU Court of Justice and the UNHCR.” Refugee Survey Quarterly 34, no. Comments of the International Commission of Jurists on the judgment of the Court of Justice of the European Union in the case of X, Y and Z v.
