Human rights, sexual orientation and international protection
Today, 10th December, is International Human Rights Day. You may remember human rights from some of our recent articles on this blog:
One was our poll asking whether people would agree with the Irish government deporting (non-Irish) LGBT people to countries where same-sex acts are criminalised.
There was also our article on the removal of any reference to sexual orientation from a UN resolution on extra-judicial executions. This despite the fact that several independent experts have reported to the UN about the grave abuses perpetrated in particular against LGBT people.
Yes, human rights – or, more accurately, human rights violations – are quite topical for us who are dykes, queers, faggots, deviants, possessed, witches, criminals, unnaturals, against God’s law, et al. There remain countries in the world where this is how we are viewed, including scores of countries where we are criminalised for who we are, and in six of these the penalties include execution.
When LGBTs flee such countries to seek asylum, will we get protection? How does Ireland treat asylum seekers who fear persecution because of their sexual orientation or gender identity?
Unfortunately, it’s not just in far-away countries that LGBTs are threatened. Problems in Europe – including in Ireland – persist. Added to the worrying events of recent years (just look at Bulgaria, Lithuania, Russia), there are some very sinister developments.
In Sweden, a lesbian couple who applied for refugee status has been threatened with deportation to Iraq. If returned, the women fear (among other things) that they may be subjected to so-called “honour killings”. In a bid to prevent the women being removed by the Swedish authorities back to Iraq, an emergency application was made to the European Court of Human Rights (under its “Rule 39″ procedures) to put a hold on their removal pending their cases being examined by the Court.
It is up to the Swedish government to honour the Court’s request and not return the women. The matter is ongoing, and only one of the women has received confirmation that she will not be deported, for now.
In the Czech Republic, gays – that is, gay men – are being subjected to “gay tests”. This is not a joke. Some refugee claimants who base their application on the grounds of their sexual orientation have been put through “phallometric” tests: the men are shown straight porn videos and, well, their anatomical responses are measured. The Czech government has defended the procedures.
The EU’s Fundamental Rights Agency has strongly criticised the practice. According to PinkNews:
The FRA said the practice violates international human rights laws which prohibit torture and inhumane or degrading treatment. It may also violate provisions around the right to a private life.
In addition, it questioned whether asylum seekers could consent to the test if refusal is taken as proof of lying.
The UN High Commissioner for Refugees has stated that:
self-identification as LGBT should be taken as an indication of the individual’s sexual orientation
I’d bet my next pay-cheque that no asylum applicant anywhere in the world, ever, has had their sexual orientation called into question when they’ve claimed to be straight.
In Ireland, there is very little information in the public domain about the treatment of LGBT asylum seekers here. Although Gaelick is aware of cases where worrying decisions have been issued refusing refugee status – and at least one case where a deportation order has been signed – the anecdotal evidence available cannot be disclosed to protect individuals’ identities and to ensure their privacy and safety.
Amnesty Ireland’s LGBT group brought our attention to one case in the media, however. Last month, a gay man – who was an unaccompanied child at the time of his initial application for refugee status in Ireland – won his challenge to a deportation order signed by the Minister for Justice and Law Reform, Dermot Ahern. The only problem is that the deportation order was issued in 2009, and the deportation was subsequently carried out and the man was returned to his country of origin.
The Evening Herald reported:
The man, who cannot be identified and is referred to as ‘A’, was deported last year after several other challenges were rejected.
Mr Justice Sean Ryan yesterday [12th November 2010] quashed the Minister for Justice’s decision of July 28 last year to refuse to revoke his deportation order for the man.
The man is still in Nigeria and yesterday’s decision does not mean he can come back to Ireland until the minister re-considers his decision, legal sources said.
In Nigeria, same-sex activity is a federal criminal offence country-wide. In individual states in the north of the country, Shari’ah law also applies. Elsewhere the majority of people practice various forms of Christianity, often mixed with elements of traditional religions including juju. Therefore, not only are there serious criminal sanctions in place, but societal attitudes are very strongly opposed to homosexuality.
How many other LGBT asylum seekers have been deported to unsafe countries where they may face torture, death or other forms of serious harm? Perhaps our next poll question should be: Why is Ireland deporting LBGT people to countries where they are criminalised and persecuted?
Persecution and seeking international protection: the good and the bad
A couple of months back, Orange wrote about developments in refugee cases, where asylum seekers were challenging through the UK courts refusals they received in their refugee applications. The refusals were issued with the reasoning that if those people returned to their countries were “discrete” (i.e. if they concealed their identities, or remained closeted) that would be an acceptable way for them to avoid being persecuted. The countries we’re talking about here are – wait for it – Cameroon and Iran. Iran.
Thankfully, the developments developed and sanity prevailed when the UK Supreme Court ruled on the matter in July of this year. (The court’s decision is equally applicable in Ireland, as human rights and refugee law is basically the same worldwide.)
The key part of the ruling emphatically dismisses the idea that lesbians or gay men should in any way conceal their identities and not “flaunt” who they are, or that they are required to be discreet. The ruling essentially boiled the correct approach down to a number of questions:
- When someone claims they fear persecution because they are gay, does the evidence indicate they are, or might be perceived to be, gay?
- If so, does the evidence show that “openly” gay people in that country may be persecuted?
- If so, what would this claimant do if returned to the country?
- If s/he would live openly and therefore be at risk of persecution, then s/he is a refugee – even if s/he could avoid the risk by living “discreetly”.
- If, however, s/he would live discreetly, the question must be asked why they would do that.
- If s/he would live discreetly simply because that his how s/he wishes to live, or because of social pressures (e.g. not wanting to distress or embarrassment to family or friends) then s/he is not a refugee.
- If, however, the reason for living discreetly is because of a fear of persecution, then s/he is a refugee.
The court explained:
To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the [Refugee Convention] exists to protect – his right to live freely and openly as a gay man without fear of persecution.
It is that simple.
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