Abstract
The concept of the term refugee is set out in Art. 1, item I of the Law 9.474 / 97 of the Foreign Statute of Brazil, which defines a refugee as any individual with a well-founded fear of persecution due to race, religion, nationality, political opinion or social group. The Convention of 1951 does not establish a specific category for persecution related to sexual orientation or gender identity. In many countries homosexuality is punished by imprisonment, or the death penalty (Saudi Arabia, Iran, Yemen, Mauritania and Sudan, as well as in regions of Nigeria and Somalia), among other penalties that deny full citizenship, segregate, discriminate and deny rights to this group. Due to the persecution these individuals suffer in their home countries, it is possible to ask: were gay, lesbian, bisexual, transgender and intersex individuals included in the social group category due to its flexible criteria? The United States, Canada and several European countries have been accepting refugee applications for individuals with well-founded fear of persecution because of their sexual orientation or gender identity. By employing this criterion, the CONARE (National Committee for Refugees of Brazil) has granted refuge to gay, lesbian, bisexual, transgender and intersex individuals who are persecuted in their home countries due to their sexual orientation or gender identity. This article explores the concept of the term refugee and its expansion over the past years, focusing especially on the basis of the refugee criterion related to social group. The aim is therefore to analyze the category of social group in the concept of refugee. It also aims to examine the possibility of framing said populations in the category of social group in order to facilitate their obtainment of a Refugee status.
Highlights
The search for a better life has always been one of humanity’s greatest objectives
The UNHCR guidelines serve to legally orient the interpretation for governments, legal professionals, as well as UNHCR officials. One of these guidelines is guideline no. 9: Guidelines on International Protection No 9 Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
The guideline states that refugee claims based on sexual orientation and/or gender identity are most commonly recognized under the “membership of a particular social group” ground
Summary
The search for a better life has always been one of humanity’s greatest objectives. Being able to develop one’s personal identity constitutes an integral part of this objective. Nor does the Protocol Relating to the Status of Refugees of 1967 To this day, legislation in a considerable number of countries recognizes LGBTI persons as members of a particular social group. Legislation in a considerable number of countries recognizes LGBTI persons as members of a particular social group This recognition has allowed asylum seekers to establish the necessary link between their sexuality and a well-founded fear of persecution to allow for them to successfully claim refugee status. This evolution in the interpretation of the law on refugees reflects a larger move towards the recognition of LGBTI rights in international law and in the domestic jurisprudence of several states. Images and stories of intolerance directed at the LGBT population periodically surface in the news from practically every corner of the globe: from countries whose legislations oppress the LGBT community either by death penalty, corporal punishment or incarceration, to countries whose laws point to a clear will to protect the rights of this social group
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