(7) Refugee Law and Gender

Question 1

What article of the Rome Statute refers to persecution?

Answer 1

Art 7(2)(g) RS

Question 2

What body monitors the Refugee Convention?

Answer 2

UNHCR

Question 3

What is a general rule in relation to entry into a state

Answer 3

states have a soveriegn R to control the entry and continued presence of non-nationals in their territories

Question 4

Intl law governing refugees comprised of

Answer 4

Refugee Convention (1951 + 1967 Protocol)

Question 5

What sort of protection is refugee protection?

Answer 5

Substitute protection! Necessary if state fails to protect its own nationals

Question 6

Principle of non-refoulment per art 33(1) RC

Answer 6

no contracting state shall expel or return a refugee in any manner where life/freedom threatened ….

Question 7

What article defines refugee in the RC?

Answer 7

Art 1A RC

Question 8

Elements of Art 1A RC definition of refugee- refugee is somebody:

Answer 8

1) who is outside their country of origin
2) has well-founded fear
3) of persecution
4) based on race, religion, nationality, membership of a particular social/political group
5) AND is unable to get protection (ie no internal flight alternative)

Question 9

Dif btw refugee and asylum seeker

Answer 9

asylum seekers have general designation as someone seeking international protection –> often means someone who has applied for refugee status but hasn’t received final outcome

Question 10

entitlement of asylum seekers and refugees to protection

Answer 10

both shouldn’t be sent back!
* refugees - due to principle of non-refoulment
* asylum seekers - shouldn’t be sent back until fair assessment of their asylum claim

Question 11

unlike refugees, migrants continue to have

Answer 11

protection of own gov even when abroad and can return home

Question 12

are declarations legally binding?

Answer 12

NO - not legally binding pnly a statement of principle, but still have considerable force

Question 13

Are there exceptions to principle of non-refoulment under art 33(1) RC?

Answer 13

Yes:
1) RGs for regarding them as danger to country’s security
2) convcited of serious crime

Question 14

Art 14 UDHR (prinicple not binding!)

Answer 14

“Everyone has the right to seek and enjoy asylum from persecution”

Question 15

Do states have obligation to grant refugee status to anyone who fulfils the criteria fo the refugee definition per ARt 1A RC?

Answer 15

states are expected to provide protection to those who meet the Convention’s criteria for refugee status and ensure that they are not returned to danger.
* However, the final decision on whether or not to grant an individual refugee status is up to the discretion of each state’s national legal system
* No clear mention of a duty to grant asylum – instead language used is that states have a ‘right, rather than a duty’ to grant asylum due to state sovereignty

Question 16

What was the inital standard for refugees?

Answer 16

refugees as political refugees and not to do with women and their activities (considered personal, private driven by emotion)

Question 17

what is problematic about the perception of refugees today?

Answer 17

there are steretypical assumptions about men and womens flight motives!

Question 18

gendered perception of women refugees is:

Answer 18

1) profitable for them to meet gendered assumption (need of protection)
2) women need protection –> BUT means they must fall within category of ‘good woman’ (don’t leave husband, fulfil societal roles of women like mother daughter etc) excludes those that don’t fit stereotype from protection like lesbian women

Question 19

gendered perception of men refugees is:

Answer 19

not profitable to meet gendered assumption!
* ie, gay men have better chance at refugee status
* reflected in dif success rates of male and female (greater success) applicants, w men considered to have ‘bogus’ refugee claims

vs women who more closely match image of victim of patriachal domination

Question 20

Critical issue with RC and LQTBQI people

Answer 20

not explicitly included in RC refugee definition – can these be grounds to qualify as a refugee? there are increasing applications based. onsexual orientation, gender identity etc

Question 21

Whilst it is unclear whether LGBTQI+ ppl can classify as refugees due to the absence of their inlcusion in the definition in the RC, why is it likely they are included as refugees?

Answer 21

1) sexual orientation, gender identity, sex characteristics considered fundamental to human identity - MAY FALL WITHIN CATEGORY OF MEMBERSHIP OF A PARTICULAR SOCIAL GROUP
2) 1951 Preamble emphasises that the provisions should be interpreted from the perspective that ‘all human beings shall enjoy fundamental Rs and freedoms w/o discrimination’

Question 22

Why difficult to demonstrate fear of persecution based on sexual orientation?

Answer 22

this is highly personal and hidden form of perseuction!

Question 23

What’s super problematic about the discretion requirement which can result in denial of refugee status on the basis that the person can simply exercise discretion to stay in the closet in their country?

Answer 23

1. can’t expect someone to refrain from giving expression to sexual orientation or gender identity  results in collusion of states granting asylum with transphoic and homophobic actors in country of origin
2. closet is a v unsafe space! Sometimes others make their sexual orientation/gender identity public against their will –> permanent risk of persecution
   Living in permanent fear and anguish is degrading and inhuman in itself

Question 24

Can a LGBTQI person still have a fear of persecution if the LGBTQI+ conduct is NOT outlawed in the country of origin?

Answer 24

No - X, Y and Z case
* most states rely. oninternal flight laternative in refusing intl protection (basically say they can just move somehwere else) - but defs shouldn’t do if it’s criminalised!!

Question 25

Can LGBTI behaviour be covered by more convention grounds of the 1951 Refugee Convention?

Answer 25

Overlaps with other factors like political opinion and religion

Question 26

Why is an internal protection alternative often not sufficient to protect LGBTI refugees against persecution?

Answer 26

• o Can often rely on the refugee needing to exercise ‘discretion’ and remain closeted about orientation/identity
• o Also, can face persecution even where not criminalised in the country

Question 27

What’s a recent eg of difficulties faced by LGBTQI+ refugees?

Answer 27

Ukraine - trans women treated like men, men aren’t allowed to leave country, gay families having difficulties proving relationship or relationship to children

Question 28

What does the Art 10(d) EU Qualitifcation Directive wrt refugees say about ‘particular social group?

Answer 28

members of a group that:
1. share an innate characterstic/common background that can’t be changed or
2. feature so fundamental to identity they shouldn’t be forced to renounce it
3. and that group has distincgiv e identity in the country bc perceived as dif from surrounding society

Question 29

Per X, Y and Z when are gay people part of a social group for purposes of refugee application?

Answer 29

when criminal laws targeting homosexuals exist –> there is no limit to membership based on sexual orientation based on behaviour or identity (but case failed to id whether the social group extends to gay/lesbian teenagers/children)

Question 30

Does criminalisation without enforcement amount to persecution? (X, Y, Z case)

Answer 30

No this is based on the fact that the EU directive’s language didn’t use ‘threat of presoecution’ but just ‘prosecution or punishment

Question 31

Can foreign nationals with a homosexual orientation be expected to conceal their orientation or exercise restraint in their country of origin in order to avoid persecution? (X Y Z Case)

Answer 31

asylum applicants can’t be reasonably expected to ‘conceal their homosexuality in their country of origin’ or to ‘exercise reserve in the expression of their sexual orientation’

Question 32

XYZ Case 2013 CJ EU facts

Answer 32

• 3 asylum applicants in NL from Sierra Leone, Uganda and Senegal
• Homosexuality a criminal offence in each country – each applicant claimed asylum on basis of well-founded fear of persecution
• Dutch Council sought clarification as to approach of the applications

Question 33

A, B, C (2014) CJ EU facts:

Answer 33

• 3 persons applied for asylum for fear of persecution based on homosexuality
• Was rejected by the NL council

Question 34

A, B, C (2014) CJ EU - key question re credibility

Answer 34

was to do with what methods of assessing credibiltiy. ofdeclared seual orientatino and whether those limits are dif from those applying to assessment of credibility. ofother grounds of persecution

Question 35

What did the CJEU conclude wrt ABC (2014) in terms of verification of sexual orientation

Answer 35

• When verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter of Fundamental Rights.
• The evaluation of an asylum application should not be based on stereotyped notions and should include an individualised assessment taking into account the applicant’s personal circumstances, vulnerability in particular.
• Not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility.

Question 36

F. v Bevandorlasi 2018 (CJEU) facts:

Answer 36

• F nigerian man escaped and reached Hungary claiming fear of persecution based on homosexuality
• Hungarian office rejected application due to lack of credibility based on psychologist’s report using various tests
• F appealed decision arguing the tests violated his fundamental Rs and were inadequate measures of asssessing sexual orientation

Question 37

Can experts be relied on by national auhtorities in determining sexual orientation for asylum applicaations? (F. v Bevandorlasi 2018 (CJEU))

Answer 37

Yes, tests are fine if they are based on sufficiently reliable methods adn principles in light of standards recognised by international scientific community –> based on proportionality test

• did disagree with the consent to the use of tests due. tothe inherent vulnerability of applicants

Question 38

In F. v Bevandorlasi 2018 (CJEU) were expert reports considered essential by teh court to confirm states re sexual orientation?

Answer 38

NO - credibitliy test should be taken into consideration where aspects of application unsupported by evidence provided but whether applicant makes genuine effort to substantiate application, all relevant elements possibel submitted and satisfactory explanation given and the statements coherent. adnplausable no need

Question 39

What case showed the need for restraint wrt credibility of sexuality claims

Answer 39

ME. v Sweden (2014) ECtHR

Question 40

Facts in ME. v Sweden (2014) ECtHR

Answer 40

• cis male refugee from Libya; marries a transman (but tells family it is his wife), arrived in Sweden 2010 and made asylum application based on criminal prosecution for illegal transport of weapons and bc of fear of retribution for this.
• In 2011, added to his application for legal residence that he had now married a man in Sweden named N – N was introduced to his fam by video but was originally presented as a woman (N transgender)
• • Under Swedish fam reunion procedure, ME would need to return to Libya and request fam reunion from there – but ME feared persecution and ill-treatment bc of sexual orientation.
• ME fears assault because of sexual orientation but exemption request rejected - said his story lacked credibility

*Whilst this request dif from asylum request, it’s the same fear of pers

Question 41

ME. v Sweden (2014) ECtHR outcome

Answer 41

requiring alients to temporarily return to their home country and hide their sexual orientation pending family reunion isn’t a violation of art 3 of ECHR (prohibition of torture, inhuman and degrade treatment)

• here found insufficient evidence that Libyan authorities actively pursecute based on sexual orientation –> court stressed was only a temporary expulsion
• Even if the applicant would thus have to be discreet about his private life during this time, it would not require him to conceal an important part of his identity permanently or for any longer period of time. This, the Court found, cannot by itself be sufficient to reach the threshold of Article 3 of the Convention.

Question 42

What was problematic in the ECtHR’s judgement on ME v Sweden (2014) justification that even tho same-sex behaviour not actively persecuted in Libya:

Answer 42

*HRC and Torture Committee accept that existence of criminalisation engages state’s non-refoulment obligation * - this justification completely ignores this!

Question 43

What was problematic in the ECtHR’s judgement on ME v Sweden (2014) justification that even if was persecution sitch in Libya, only had to be discreet for 4 months

Answer 43

CJ EU and UKSC have both dismissed the idea that LGBT asylum seekers can be rejected based on the premise that they could live perfectly safe lives in their home countries if they only remain discreet.

Question 44

What was problematic in the ECtHR’s judgement on ME v Sweden (2014) justification that ME already chosen to be discreet for private reasons not fear of persecution

Answer 44

• Whilst UKSC agreed with this position, here ECtHR placed significant weight on fact that he’d chosen to live discreetly and ignored statements from ME family threatening to kill him (here court dismissed claims based on lack of substantiation)
• Fails to recognise that where same-sex behaviour criminalised, social pressures and fear of persecution go together – also hard to establish whether they live discretely based on social reasons entirely or persecution fears

Question 45

How did the conduct of Hungary in F. v Bevandorlasi – 2018 (CJEU) violate Yogyakarta Principle 3 (no one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity)

Answer 45

de facto consent was imposed by the CJEU’s decision to permit the use of such tests (if consideered sufficiently credible) where an applicant’s application was ambiguous on the evidence

Question 46

OM v Hungary (2016) (ECtHR) facts

Answer 46

• Fled iran for persecution for being homosexual, criminal proceedings had been instituted against him
• Was then placed in detention with other asylum seekers w/o consideration for the fact that he would be around ppl that could harass him from his own and other countries who held such beliefs)
• Alleged detention unjustified according to art 5 (right to liberty and security) of ECHR

Question 47

OM v Hungary (2016) (ECtHR) held

Answer 47

breach of Art 5
* * Where asylum seeker from vulnerable group fled from country, particular care needs to be exercise to ensure the plight that forced them to flee isn’t recreated  authorities failed to do so here
* * LGBTQI+ applicants were unsafe in custody w other detained persons from his country or areas holding similar views towards LGBTQI+ people

Question 48

UNHCR Guidelines for refugees wrt lgbtqi+ asylum seekers - what do they say wrt detention

Answer 48

care should be taken to ensure their security and protection from harrassemnt/violence etc in detention

Question 49

What is a refugee sur place

Answer 49

o ‘A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”.’

Question 50

Westernised girls could be an example of:

Answer 50

a refugee sur place (harder for boys!)