(7) Refugee Law and Gender Flashcards
What article of the Rome Statute refers to persecution?
Art 7(2)(g) RS
What body monitors the Refugee Convention?
UNHCR
What is a general rule in relation to entry into a state
states have a soveriegn R to control the entry and continued presence of non-nationals in their territories
Intl law governing refugees comprised of
Refugee Convention (1951 + 1967 Protocol)
What sort of protection is refugee protection?
Substitute protection! Necessary if state fails to protect its own nationals
Principle of non-refoulment per art 33(1) RC
no contracting state shall expel or return a refugee in any manner where life/freedom threatened ….
What article defines refugee in the RC?
Art 1A RC
Elements of Art 1A RC definition of refugee- refugee is somebody:
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)
Dif btw refugee and asylum seeker
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
entitlement of asylum seekers and refugees to protection
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
unlike refugees, migrants continue to have
protection of own gov even when abroad and can return home
are declarations legally binding?
NO - not legally binding pnly a statement of principle, but still have considerable force
Are there exceptions to principle of non-refoulment under art 33(1) RC?
Yes:
1) RGs for regarding them as danger to country’s security
2) convcited of serious crime
Art 14 UDHR (prinicple not binding!)
“Everyone has the right to seek and enjoy asylum from persecution”
Do states have obligation to grant refugee status to anyone who fulfils the criteria fo the refugee definition per ARt 1A RC?
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
What was the inital standard for refugees?
refugees as political refugees and not to do with women and their activities (considered personal, private driven by emotion)
what is problematic about the perception of refugees today?
there are steretypical assumptions about men and womens flight motives!
gendered perception of women refugees is:
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
gendered perception of men refugees is:
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
Critical issue with RC and LQTBQI people
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
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?
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’
Why difficult to demonstrate fear of persecution based on sexual orientation?
this is highly personal and hidden form of perseuction!
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?
- 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
- 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
Can a LGBTQI person still have a fear of persecution if the LGBTQI+ conduct is NOT outlawed in the country of origin?
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!!
Can LGBTI behaviour be covered by more convention grounds of the 1951 Refugee Convention?
Overlaps with other factors like political opinion and religion
Why is an internal protection alternative often not sufficient to protect LGBTI refugees against persecution?
- 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
What’s a recent eg of difficulties faced by LGBTQI+ refugees?
Ukraine - trans women treated like men, men aren’t allowed to leave country, gay families having difficulties proving relationship or relationship to children
What does the Art 10(d) EU Qualitifcation Directive wrt refugees say about ‘particular social group?
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
Per X, Y and Z when are gay people part of a social group for purposes of refugee application?
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)
Does criminalisation without enforcement amount to persecution? (X, Y, Z case)
No this is based on the fact that the EU directive’s language didn’t use ‘threat of presoecution’ but just ‘prosecution or punishment
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)
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’
XYZ Case 2013 CJ EU facts
- 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
A, B, C (2014) CJ EU facts:
- 3 persons applied for asylum for fear of persecution based on homosexuality
- Was rejected by the NL council
A, B, C (2014) CJ EU - key question re credibility
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
What did the CJEU conclude wrt ABC (2014) in terms of verification of sexual orientation
- 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.
F. v Bevandorlasi 2018 (CJEU) facts:
- 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
Can experts be relied on by national auhtorities in determining sexual orientation for asylum applicaations? (F. v Bevandorlasi 2018 (CJEU))
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
In F. v Bevandorlasi 2018 (CJEU) were expert reports considered essential by teh court to confirm states re sexual orientation?
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
What case showed the need for restraint wrt credibility of sexuality claims
ME. v Sweden (2014) ECtHR
Facts in ME. v Sweden (2014) ECtHR
- 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
ME. v Sweden (2014) ECtHR outcome
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.
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:
*HRC and Torture Committee accept that existence of criminalisation engages state’s non-refoulment obligation * - this justification completely ignores this!
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
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.
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
- 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
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)
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
OM v Hungary (2016) (ECtHR) facts
- 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
OM v Hungary (2016) (ECtHR) held
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
UNHCR Guidelines for refugees wrt lgbtqi+ asylum seekers - what do they say wrt detention
care should be taken to ensure their security and protection from harrassemnt/violence etc in detention
What is a refugee sur place
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”.’
Westernised girls could be an example of:
a refugee sur place (harder for boys!)
