Legal Violence and (In)Visible Families: How Law Shapes and Erases Family Life in SOGI Asylum in Europe

Carmelo Danisi,Nuno Ferreira

doi:10.1093/hrlr/ngab020

Abstract

Abstract Studies on the Refugee Convention have paid very limited attention to the notion of family and family rights of asylum claimants in connection with asylum claims based on sexual orientation and gender identity (SOGI). Drawing on the notion of ‘legal violence’, this article demonstrates the injurious cumulative effect that a heteronormative, homonormative and Western-centered formulation and implementation of asylum and refugee law has on SOGI claimants when it comes to intimate and family relationships. By relying on a solid body of primary and secondary data, it explores the invisibility of SOGI claimants and refugees’ families and how that invisibility is normalized by European legal frameworks, such as the Dublin (III) Regulation and Family Reunification Directive. To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of SOGI claimants, a principled approach based on human rights and specifically the right to respect for family life is suggested.

Highlights

Studies on the Refugee Convention have paid very limited attention to the notion of family and family rights of asylum claimants in connection with asylum claims based on sexual orientation and gender identity (SOGI)
By relying on a solid body of primary and secondary data, it explores the invisibility of SOGI claimants and refugees’ families and how that invisibility is normalized by European legal frameworks, such as the Dublin (III) Regulation and Family Reunification Directive
To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of SOGI claimants, a principled approach based on human rights and the right to respect for family life is suggested

Summary

SOGI ASYLUM SYSTEMS AS A FORM OF LEGAL VIOLENCE

The international protection system was set up to alleviate the suffering of those escaping persecution and offering them much needed protection. In relation to expectations on SOGI claimants’ lives in the host countries,[71] too often these include intimate relationships with local lesbian, gay, bisexual, transsexual, intersexual and queer (LGBTIQ+) people Our data confirm such heteronormative assumptions, considering that the lack of intimate or sexual bonds in an ‘open’ and ‘free’ European society was treated with disbelief (Maurizio, judge, Italy; survey participant C54, UK). In the specific context of relationships, even plausibility risks being an insurmountable obstacle if decision-makers are resistant to sexual, gender and cultural diversity Such a narrow implementation of refugee law, coupled with other problematic aspects like accommodation and procedures, is instrumental in perpetuating asylum systems that deny individual experiences and produce systematic, but yet invisible and unaddressed, violent effects on SOGI claimants. 71 Among others, Akin, ‘Discursive Construction of Genuine LGBT Refugees’ (2018) 23 Lambda Nordica 21 at 37

72 Similarly to other regional and national experiences

EUROPEAN AND DOMESTIC LEGAL FRAMEWORKS AS NORMALIZERS OF LEGAL VIOLENCE

REDRESSING LEGAL VIOLENCE IN SOGI ASYLUM: A PRINCIPLED APPROACH

Findings

CONCLUSION