Foreign Correspondent: Protecting the persecuted - Sexual orientation and gender identity refugee claims

What does it mean to have a non-conforming sex, sexual orientation or gender identity? What counts as serious harm? Can effective protection be found elsewhere? These are just a few of the recurring questions that confront lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) asylum seekers seeking refuge from persecution.

My Churchill Fellowship took me to the US and UK to examine how advocates and adjudicators could better respond to these questions. While there is no universal or exhaustive single solution, my research demonstrated the need for an interdisciplinary approach that blends law, policy, social work, counselling and grassroots training. Generally, the caseworkers and advocates I interviewed suggested that improving the policy and community infrastructure requires: developing specific policy guidance; cultural sensitivity training; enabling culturally sensitive-decision making; facilitating social support networks; and providing access to legal and psychological services.

However, it is worth emphasising that despite the increased specialist work being undertaken on sexual and gender minority asylum issues, there still remains a paucity of critical research, casework support, and advocacy on intersex asylum claims. Additionally, same-sex attracted, bisexual, and lesbian women remain underrepresented within sexual orientation refugee claims.

Despite the domestic variations relating to the grant of asylum in the US, UK and Australia, sexual and gender identity has been accepted in the common law as a peculiar characteristic fundamental to human conscience that should be protected. However, clearly delimiting sexual orientation and gender identity within the scope of a “well-founded fear” of persecution remains elusive. Experiences of LGBTIQ identity, violence, displacement, and emotion are culturally and historically specific. However, such nuances pose challenges for decision-makers. Whether it is the use of popular culture stereotypes that coerce asylum seekers into “scripting” their sexual identities or the intrusive interview questions that make it difficult to disclose intimate information, asylum adjudications suffer from inconsistency and inaccuracy.

In order to remedy some of these bureaucratic burdens, asylum seekers should be supported in telling their stories with open-ended conversations rather than closed interrogations. Leading UK Barrister S Chelvan elaborates that a way of framing open questions for LGBTIQ asylum seekers is using the difference, stigma, shame and harm (DSSH) model. Instead of seeking a chronological or linear account of sexual or gender identity, Chelvan suggests we should focus on when the applicant identified as different, how this difference was stigmatised by others, how the stigma generated self-shame and the extent to which the shame and stigma resulted in harm. Executive Director Erin Power from UK Lesbian and Gay Immigration Group (UKLGIG) adds that interviews must work to enable applicants to narrate and write their own “life stories.” Such narratives should avoid generic tropes as the “believability” of a claim arises from its individuality. Power evinces that there is a connection between thinking and feeling: emotion gives impetus to personal stories. Such narratives are rarely linear, but open questions can enable asylum seekers to provide greater information for their claims. Specifically, this includes letting an asylum seeker share a story with minimal interruption. Legal scholar Toni Johnson observes that adjudicators often fail to grasp the emotional “tells” of oral testimony because they refuse to imagine experiences of sexuality or gender identification that contest their pervasive stereotypes of what being “gay” looks or sounds like. Instead of understanding the reasons for silence or evasion, decision-makers use it as a marker to impugn an asylum seeker’s credibility. 

Incorrect status determinations are dangerous because they can facilitate the return of refugees to places where their life or liberty is threatened. Whether it is in the context of administrative or judicial decision-making, an absence of guidelines on adjudicating LGBTIQ claims continues to produce inconsistent, stereotyped and capricious decisions. The United Nations High Commissioner for Refugees’ (UNHCR) most updated guidelines on sexual orientation and gender identity refugee claims identify that guidelines must address both substantive (i.e. defining persecution and the particular social group) and procedural (i.e. interviewing and use of country information) elements.

Recently, the UK and US has developed guidelines to address sexual orientation and gender identity decision-making in a refugee context. All the advocates who worked to assist in their development (such as Power in the UK) identified that guidelines had facilitated more nuanced and effective decision-making. In particular, the guidelines have eschewed stereotypes, and differentiated between sexual orientation, intersex, and gender identity, and recognised the complex institutional challenges LGBTIQ asylum seekers face when disclosing their personal information. 

My research in the US and UK revealed that the collaborative work of psychologists, lawyers, social workers, academics and activists has been instrumental in supporting sexual and gender minorities navigating the complex asylum process. We need a holistic approach if we want to improve the casework, advocacy, and decision-making key to helping LGBTIQ refugees seek protection from persecution.

Senthorun Raj is an academic and LGBTI activist. He is on Twitter @senthorun.