Arbitrary detention

(Application no. 9912/15), 21 October 2015 

Find Court’s communication here.

• The case concerned immigration detention of a gay asylum seeker from Iran for nearly two months before granting refugee status in Hungary. The applicant complained that his asylum detention was not lawful or justified. It was arbitrary, because the court ordered it without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures.
• ILGA-Europe together with the AIRE Centre, the ECRE and the ICJ submitted that:
  • The Contracting Parties have an obligation under the Convention to take account of the particular risks that the detention of asylum-seekers entails, including, in particular, when deciding to detain those asylum-seekers who might have been exposed to abuse and/or may risk violence and discrimination on account of their sexual orientation while in detention.
  • The interveners stressed the relevance of the EU asylum acquis, the EU Charter of Fundamental Rights and the 1951 UN Convention relating to the Status of Refugees, as amended by its 1967 Protocol, 2 to the determination of the scope and content of Contracting Parties’ obligations under Art 5(1) of the European Convention on Human Rights
• The European Court of Human Rights delivered its judgement on 5 July 2016.
• The Court held that the applicant’s detention verged on arbitrariness and did not contain any adequate reflection on his individual circumstances as a member of a vulnerable group by virtue of belonging to a sexual minority in Iran. Consequently the Court found a violation of Article 5 § 1 of the Convention.

Asylum

(Application no. 78701/14), 19 May 2015

Find Court’s decision here. (struck out of the list of cases)

• The applicant complains under Articles 2 and 3 of the Convention that his expulsion from Sweden to Iran would expose him to a real risk of being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.
• ILGA-Europe together with the AIRE Centre, Amnesty International, the ICJ and the UK Lesbian and Gay Immigration Group submitted the following:
  • Requiring coerced, including self-enforced, suppression of a fundamental aspect of one’s identity is not compatible with the Convention.
  • The criminalization of consensual same-sex sexual conduct gives rise to a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations.

Asylum

(Application no. 71398/12)

Find the Chamber 2014 judgment here and the final Grand Chamber 2015 judgement here. (Struck out of the list of cases as the applicant was granted a permanent residence permit in Sweden)

• The applicant, a married gay man, alleged that his expulsion to Libya in order for him to apply for family reunion from there would entail a violation of Article 3 of the Convention..
• ILGA-Europe, together with FIDH (Fédération Internationale des Ligues des Droits de l’Homme) and ICJ (International Commission of Jurists) submitted the following:
  • There is a consensus in European and other democratic societies in support of gay and lesbian asylum and of greater recognition of, and protection for, the right of gay and lesbian individuals to ‘live freely and openly’. According to national, European and international human rights law standards, an LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of ill-treatment. Concealment may also result in significant psychological and other harm.
  • The interveners provided background country evidence demonstrating that a gay man open about his same-sex marriage in Libya faced substantial grounds for fearing a real risk of arrest, abduction and physical assault by state sanctioned militia. Gay men could not live freely and openly in Libya, without the risk of treatment contrary to Article 3. Even where the exposure to a risk of treatment contrary to Article 3 is expected to be temporary, the period of expulsion is immaterial, because the right to be protected against ill-treatment is absolute.
• Latest update on the situation: the threat of a violation was removed by the Migration Board’s decision (2014) of repealing the expulsion and granting the applicant permanent residence in Sweden.

The Fleeing Homophobia research, a study on policy and practice in 25 European countries, showed huge diversity in the handling of LGBTI asylum claims in the various EU Member States, and identified several challenges: the relevance of laws in the country of origin criminalising consensual same-sex sexual acts or the expression of non-standard sexual or gender identities; the requirement for LGBTI applicants to conceal their sexual orientation or gender identity upon return to the country of origin in order not to “provoke” violence and discrimination; the requirement to seek protection from homo- or transphobic state authorities in the country of origin; the growing trend of rejections based on non-credibility of the sexual orientation or gender identity itself, in many cases based on stereotypes; the problem of late disclosure to the asylum authorities and the increased disbelief that it causes; discrimination and violence faced by LGBTI applicants in reception facilities; the lack of complete and reliable human rights information about LGBTIs in countries of origin.

However, there has been progress over the same period and ILGA-Europe advocated for an improvement of EU legislation, in the frame of the recasting process of three asylum directives: the Qualification Directive (QD), the Asylum Procedures Directive (APD) and the Reception Conditions Directive (RCD).2 Under the Qualification Directive,3 Member States now have an obligation to explicitly recognise not only sexual orientation, but also gender identity, as a reason for persecution which could lead to the granting of international protection.

In addition, under the newly adopted Procedures Directive people who conduct asylum interviews should be professionally trained in LGBTI issues. They should also be capable of recognising the need for special procedural guarantees based on applicants’ personal characteristics. The Reception Directive does not include provisions specific to LGBTI applicants, but some of its general provisions do apply to this group. In particular, all forms of violence in accommodation facilities, including gender-based violence, are to be prevented.

Transposition of the Recast Asylum Procedure Directives and of the Recast Reception Conditions Directive

Directives 2013/32/EU (the recast “Procedures Directive”) and 2013/33/EU (the recast “Reception Conditions Directive”) are some of the directives that make up the Common European Asylum System (CEAS).

In this document, references to recitals and articles of both Directives are prefaced as follows: APD (recast Asylum Procedure Directive) refers to Directive 2013/32/EU, and RCD (recast Reception Conditions Directive) refers to Directive 2013/33/EU.

Read together with other such instruments, such as Directive 2011/95/EU (the recast “Qualification Directive”), they define a set of obligations for Member States and they shape a European asylum system that is much more sensitive to the cases of LGBTI applicants than was the case in the past.

The present document explores the potential of the two Directives adopted in 2013 as regards the rights of LGBTI applicants and the obligations of national authorities in the implementation of the CEAS.

Asylum

(Application No. 30953/11), March 2014 

Find Court’s communication here.

Find Court’s decision here. (struck out of the list of cases, no risk of any imminent refoulement as the applicant has been granted a continuous residence permit valid for one year in Finland)

• The applicant, gay asylum seeker from Iran, complained under Article 3 of the European Convention that he feared  ill-treatment or torture if removed to Iran. He claimed that the Iranian police had evidence of his homosexuality (photos and videotapes) and that his homosexual friends had already been arrested.
• ILGA-Europe together with AIRE Centre, ECRE, FIDH, FLHR, INTERIGHTS and UKLGIG submitted the following:
  • Since 2004, when the Court had the opportunity to consider expulsion of an LGBT person to home country, European consensus has developed socially, politically and legally to a point where there is greater recognition of, and protection for, the right of gay and lesbian individuals to ‘live freely and openly’.
  • According to European and international human rights law standards, an LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of treatment violating Article 3.
  • The mere existence of laws criminalizing consensual same-sex sexual conduct can give rise to acts of persecution. It discloses dispositive evidence of a real risk of Article 3 prohibited treatment.
  • The recent legislative re-codification of the criminalisation of consensual same-sex sexual activity in Iran reinforces homophobic societal norms and prejudices in Iran. The risk of discovery and consequent persecution is ever-present for returning gay men and lesbians, impacting upon and informing their behaviour in all aspects of their private and public lives in a manner wholly inconsistent with their right to freedom from treatment contrary to Article 3.
• Update on the situation: the application was struck out of the list of cases because there was no risk of any imminent refoulement as the applicant has been granted a continuous residence permit for one year with a possibility of renewal in Finland.

In 2011, the European Union adopted the recast Qualification Directive (2011/95/EU) setting out rules governing minimum standards on conditions under which international protection is granted as part of the Common European Asylum System (CEAS).

The purpose of these guidelines, which update the previous version published by ILGA-Europe in 2005 after the adoption of the first Qualification Directive, is to identify the relevant parts of the Directive for applicants for international protection persecuted because of their being lesbian, gay, bisexual, trans or intersex.

This publication will help national policy makers and NGOs to work towards a full implementation of EU law in this area.

Recommendations for the integration of a gender perspective into the work of the European Asylum Support Office

The current discriminatory and incoherent provision of protection across the EU and the lack of expertise on gender/sexual orientation/gender identity-related persecutions are putting individuals at risk.

If the EASO is to ensure that the EU fulfils its obligations to protecting all those at risk whether man, woman, gay, lesbian or transgender, a set of recommendations (attached), produced by a coalition formed by ILGA-Europe, the European Women’s Lobby and Amnesty International’s End Female Genital Mutilation European Campaign, must be translated into practice by the new agency.

The European Asylum Support Office will provide asylum expertise, conduct comparative research, collate country of origin information, gather existing practices, and provide training and guidelines for national asylum authorities.

The coalition calls on the EASO to work against discrimination in asylum procedures and to ensure that gender, sexual orientation and gender identity perspectives are embedded equally in the structure and the work of the EASO.

Current asylum procedures in the EU are generally lacking gender, sexual orientation and gender identity awareness: training on questioning techniques is inadequate, and the knowledge and understanding of persecutions on the basis of gender, sexual orientation and gender identity remains low. For instance, a Christian woman was not granted asylum by the Belgian asylum system because they mistakenly believe Christian girls and women not to be at risk of female genital mutilation (FGM).

Background information:

Gender based violence and persecution is a global problem of pandemic proportions:

• more death and disability among women aged 15–44 are caused by acts of violence than by cancer, malaria, traffic accidents and war combined (UN)
• 3 million girls worldwide are subjected to genital mutilation each year (WHO)
• 76 countries still criminalise same-sex sexual activities between consenting adults
• 539 trans people were murdered worldwide from January 2008 to the end of 2010 (Transgender Europe)

The EASO was established by the European Union in response to asylum challenges and is part of the implementation of the 2008 European Pact on Immigration and Asylum which called for the completion of a Common European Asylum System by 2012 “to offer a higher degree of protection”.

The Directive adopted in 2004 by the European Union sets out the minimum rules governing the award conditions under which of refugee status is granted. This new EU legislation, which defines criteria for being granted refugee status as well as the rights of people recognised as refugees, breaks ground by including specific reference to sexual orientation.

The purpose of these guidelines is to identify the relevant parts of the Directive for LGBT persons and to enable national organisations to assess whether national legislation meets the Directive’s standards in this area.

In 2004, the European Union adopted a Directive setting out the minimum rules governing conditions under which refugee status is granted1. It applies to third country nationals (i.e. persons from outside the EU) who request asylum within a Member State of the EU. It covers the criteria for being awarded refugee status, but also the rights of persons once they are recognised as refugees. Amongst those who apply for asylum, some are lesbian, gay, bisexual and transgendered (LGBT). In some cases, they will be fleeing persecution unrelated to their sexual orientation, for example, due to their involvement in political movements opposed to the government of the country of origin. In other cases, an individual’s sexual orientation is the principal reason why they have experienced persecution or are at risk of persecution. The Directive will be highly relevant to the processing of such claims within the EU.

The Directive will enter into force on 10 October 2006. By then, all national legislation should be in compliance with the requirements of the Directive. Certain states have special ‘opt-out’ arrangements for EU immigration legislation. In this case, the Directive does not apply to Denmark, but it applies to all the remaining 24 states.

The purpose of these guidelines is to identify the relevant parts of the Directive for LGBT persons and to enable national organisations to assess if national legislation meets the Directive’s standards in this area.