Matthew Scott is UK-qualified solicitor and a doctoral candidate at the Faculty of Law at Lund University in Sweden. He will also be speaking at the Jus Humanis Winter Forum which will explore the topic “Right to Sexuality” on 20 November at 11.30 at Lilla Gråbrödersgatan 3C . His lecture will be on LGBTI asylum claims.
Under international law, are there any possibilities for LGBTI-people to claim asylum? Under Article 1(A)(2) of the 1951 Refugee Convention a refugee is someone who, owing to a well-founded fear of being persecuted, is unable or unwilling to avail himself of the protection of that country. The provision also states that the persecution must be for reasons of race, religion, nationality, political opinion or membership of a particular social group. Hence, it does not explicitly mention your sexuality. However, the “particular social group” is open for interpretation – e.g. the Swedish Aliens Act explicitly mentions “race, nationality, religious or political opinion, or on account of gender, sexual orientation or other membership of a particular social group”. It should be mentioned that this is the Convention reason most commonly recognized in this context, but other grounds may also be relevant depending on the political, religious and cultural context of the claim. For example, LGBTI activists and human rights defenders (or perceived activists/defenders) may have either or both claims based on political opinion or religion if, for example, their advocacy is seen as going against prevailing political or religious views and/or practices.
Another issue worth mentioning is the credibility assessment – how do you prove that you are – for example – homosexual? And how can the authorities assess whether you are so or not? Stereotypes is one problem, with state officials questioning the applicant of his/her sexuality with statements like “how can you really be gay if you have a wife and kids?” Another scandal that was revealed in the beginning of 2014, included shockingly degrading and completely irrelevant lines of questioning when interviewing gay and lesbian asylum seekers in U.K, where Home Office officials asked questions like “Did you put your penis into x’s backside?” and “When x was penetrating you, did you have an erection? Did x ejaculate inside you? Why did you use a condom?”
Sounds interesting? Then don’t miss out on Matthew Scott’s lecture on Thursday 21 November at 11.30! If you’re even more interested, and want to read up on the issue beforehand you can find the UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees here!