Adjudica(ng asylum claims based on sexual orienta(on and/or gender iden(ty Fadela Novak-­‐Irons CoE-­‐UNHCR Seminar 10-­‐11 October 2013 Stage 2 -­‐ Substan(ve analysis A. Well-­‐founded fear 1.  PersecuFon 2.  DiscriminaFon & PersecuFon 3.  Criminalizing Laws 4.  Core or non-­‐core? 5.  Concealment 6.  Agent of persecuFon B. The grounds 1. Membership of a parFcular social group 2. Other grounds Well-­‐Founded Fear of Being Persecuted 1. Persecu(on l 
What amounts to persecuFon depends on circumstances of case, incl. age, gender, opinions, feelings and psychological make-­‐up of applicant l 
Not all LGBTI have experienced persecuFon in past –  Past persecuFon not prerequisite to refugee status –  Well-­‐foundedness of fear based on assessment of predicament applicant would have to face if returned –  Applicant does not need to show that authoriFes knew about SOGI before departure 1. Persecu(on SOGI may be expressed or revealed in many subtle or obvious ways e.g. appearance, speech, behaviour, dress and mannerisms; or not revealed at all in these ways l  While certain acFvity expressing or revealing SOGI may be considered trivial, what is at issue is consequences that would follow such behaviour -­‐-­‐-­‐-­‐-­‐-­‐ l  Physical violence, sexual assault, incl. rape = persecuFon l  Forced insFtuFonalisaFon, forced sex-­‐reassignment surgery, forced medical treatment (injecFons, electro-­‐
shocks) = torture or inhumane or degrading treatment l 
1. Persecu(on l 
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DetenFon (incl. psychological or medical insFtuFons) on sole ground of SOGI = breach prohibiFon of arbitrary deprivaFon of liberty = persecuFon + risks of mulFple discriminaFon Violence (incl. early/forced marriage, forced pregnancy, marital rape) jusFfied in the name of “honour” or as “correcFve”, “puniFve” or to make the person “normal”= persecuFon –  ! Intent or moFve of persecutor = relevant but not prerequisite – no need of puniFve intent to establish causal link: What maDers is the feared predicament and how harm is experienced
2. When does discrimina(on amount to persecu(on? l 
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DiscriminaFon = persecuFon where measures of discriminaFon, individually or cumulaFvely, lead to consequences of a substanFally prejudicial nature for the person concerned CumulaFve effect may consFtute persecuFon in given case –  Denial of economic and social rights –  RestricFons to private and family life –  RestricFons to freedom of expression, associaFon, assembly –  RestricFons to right to privacy –  RestricFons in how to express oneself and behave 2. When does discrimina(on amount to persecu(on? l 
DiscriminaFon in access to & maintenance of employment –  Dismissal even if discriminatory or unfair = not persecuFon BUT if enjoyment of any kind of gainful employment is highly improbable = may consFtute persecuFon 3. Criminalizing Laws l 
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Criminalizing laws –  = discriminatory and violate internaFonal HR norms –  If death penalty, prison terms, corporal punishment, incl. flogging = evident persecutory character Even if irregularly, rarely or ever enforced = can lead to intolerable predicament rising to persecuFon where: –  Oppressive atmosphere of intolerance, threats of persecuFon –  Laws used for blackmail and extorFon –  PromoFon of poliFcal rhetoric = exposes LGBTI to risk of persecuFon –  Hinder person from seeking and obtaining state protecFon 3. Criminalizing Laws l 
Laws of general applicaFon (e.g. loitering and public morality laws) can be selecFvely applied against sexual minoriFes in discriminatory manner and making life intolerable = amount to persecuFon l 
Even ajer decriminalizaFon, social aktudes may take Fme to change and could result in lingering threat l  Assessment of WFF = fact-­‐based, focus on both individual and contextual circumstances of case 3. Criminalizing Laws l 
Fear element applies to persons to whom such laws have been applied and persons who wish to avoid risk of applicaFon of such laws to them l 
If lack of COI re enforcement of criminalizing laws: l  Pervading and generalised climate of homophobia = evidence indicaFve of LGBTI persecuFon Non-­‐persecutory laws? l 
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Not acceptable to expect behaviour modificaFon to avoid persecuFon Behaviour modificaFon can be expected to comply with general laws in country BUT 1. RestricFons must be prescribed by law 2. RestricFons imposed to serve permissable purpose and necessary to protect it 3. Must be consistent with other rights, incl. prohibiFon of non-­‐
discriminaFon l 
RestricFve measures = persecuFon when individual and contextual circumstances are considered 4. Core or marginal area? l 
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DisFncFon between forms of expression that relate to a “core area” of sexual orientaFon and those that do not = irrelevant for assessment of WFF CJEU ruling in Y. and Z. v. Germany (religious persecuFon), 2012 – para. 62 Ø 
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Core and non-­‐core elements – difference between forum internum and forum externum rejected What is at issue is the consequences that would follow such behaviour 5. Concealment
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General principle: –  Applicant may be able to avoid persecuFon by concealing or by being “discreet”, or has done so previously? = not valid reason to deny refugee status – 
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Person cannot be denied refugee status based on requirement that they change or conceal their idenFty, opinions or characterisFcs to avoid persecuFon Ques(on = what predicament would applicant face if returned to country of origin 5. Concealment
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Even if applicants may have managed to avoid harm through concealment, secrecy may not be an opFon for lifeFme: –  risk of discovery -­‐ not necessarily confined to own conduct, e.g. by accident, rumours or growing suspicion –  risk of exposure and related harm for not following expected social norms e.g. gekng married and having children 5. Concealment
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Concealment may also result in significant psychological and other harms, serious effect on mental and physical health -­‐ could in parFcular cases lead to an intolerable predicament amounFng to persecuFon l 
Feelings of self-­‐denial, anguish, shame, isolaFon and even self-­‐hatred which may accrue in response an inability to be open about one’s sexuality or gender idenFty are factors to consider, including over the long-­‐
term 6. Agents of persecu(on
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State persecu(on e.g. criminalizaFon of consensual same-­‐sex conduct, enforcement of associated laws, or harm inflicted by State officials (police, military) “Rogue” officers’ individual acts = State persecu(on where officer is member of police and other agencies that purport to protect people Harm by non-­‐State actors (family members, neighbours, broader community) = persecuFon if State is unable or unwilling to provide EFFECTIVE protecFon against such harm The Grounds Membership of a par(cular social group
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ParFcular social group: –  group of persons who share common characterisFc other than their risk of being persecuted (protected characterisFc) OR –  Group of persons who are perceived as a group by society (social percepFon) Membership of a par(cular social group
Protected characterisFcs l CharacterisFc = innate, unchangeable or fundamental to iden(ty, conscience or the exercise of one’s human rights l If sexual/gender idenFty sFll evolving, fluid or confusion or uncertainty about SOGI: characterisFcs are fundamental to evolving idenFty and within social group ground Membership of a par(cular social group
Social percepFon l NO requirement that members of social group associate with one another or are socially visible l “Social percepFon” NOT meant as sense of community or group idenFficaFon Other grounds? THANK YOU !