Abstract
Abstract This article addresses the concern that decision-making in sexual orientation or gender identity (SOGI) asylum claims in Europe is often unfair, and that one way to remedy this is by improving the guidance provided to decision-makers when interpreting the Refugee Convention in respect of these claims. We begin by interrogating a number of different decision-making guidelines and models to assess whether they contribute to a fairer asylum system. We show that, for claims based on SOGI, success invariably depends on the decision-maker’s assessment as to whether a claimant is, or would be perceived in their home country to be, a member of a SOGI minority, and so belongs to a Particular Social Group. Such focus risks neglecting analysis of the actual risk of persecution. We set out our own recommendation for a fairer approach based on prioritising SOGI-specific Country of Origin Information (COI) and the risk of persecution, rather than focusing on whether applicants are ‘genuinely’ members of a SOGI minority. We argue that this will lead to fairer outcomes that are less likely to be overturned on appeal and more consistent with the Refugee Convention’s spirit and letter.
Highlights
This article addresses the concern that decision-making in sexual orientation or gender identity (SOGI) asylum claims in Europe is often unfair, and that one way to remedy this is by improving the guidance provided to decision-makers when interpreting the Refugee Convention in respect of these claims
For claims based on SOGI, success invariably depends on the decision-maker’s assessment as to whether a claimant is, or would be perceived in their home country to be, a member of a SOGI minority, and so belongs to a Particular Social Group
A standard question asked of claimants we interviewed was “In your view, what needs to change so that SOGI claims are treated more fairly?” we held 16 focus groups in which participants were asked, amongst other questions, “Do you think there are changes needed to make it fairer for people to claim asylum because of their sexuality or gender identity?” Fieldwork included 24 observations of asylum appeals, providing an opportunity to assess factors with an obvious bearing on fairness such as whether the proceedings were explained to the appellant, the adequacy of any interpreting provision, and whether the appellant was given a reasonable opportunity to provide an account of their experiences
Summary
This article arises from a growing concern, reflected in scholarship, that decisionmaking in sexual orientation and gender identity (SOGI) asylum claims in Europe is often unfair (a term we will define ) and fails to comply with the spirit if not the letter of the Refugee Convention.[1] One reason for this may be the interpretation and application of international refugee law in different jurisdictions, suggesting that decision-making might be improved by changing the guidance provided to decision-makers when interpreting the Refugee Conventionin respect of these claims.[2]. There is a range of conditions that needs to be met to decide a claim for asylum positively These include that a well-founded fear of persecution has been established, that such fear is on account of one of the five Refugee Convention grounds (namely race, religion, nationality, membership of a particular social group (PSG), or political opinion), and that the home country authorities fail to provide protection.
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