Refugee Status Determination Process for LGBTI Asylum Seekers: (In)Consistencies of States’ Implementations with UNHCR’s Authoritative Guidance

Abstract

The United Nations High Commissioner for Refugees (UNHCR) has been given the duty of supervising the application of international refugee instruments to ensure that states implement them uniformly serving the best interests of asylum seekers and refugees. As part of its supervisory role, UNHCR provides guidance on how to interpret the Refugee Convention and how to conduct the refugee status determination process. Thus, the consistency of states’ interpretation and application of the refugee definition with UNHCR’s authoritative guidance means providing refugee status to people who fulfil the definition of refugee. This chapter focuses on lesbian, gay, bisexual, transgender and intersex (LGBTI) people in need of protection. It identifies persecution, credibility, internal flight alternative and concealment approach as decisive areas for granting or rejecting the asylum applications of LGBTI people and explores the (in)consistencies of states’ interpretation and application of these areas with the UNHCR’s guidelines on international protection, assuming that any inconsistency would mean the need for an enhanced supervisory role. The chapter questions, then, in which area(s) there is a need of enhancing the UNHCR’s supervisory role in the legal process of refugee status determination for LGBTI asylum seekers. By analysing a randomly selected 40 case research sample, the chapter preliminary identifies four inconsistencies and concludes that the UNHCR’s supervisory role needs to be enhanced in three areas: namely persecution (the enforcement requirement of the existing laws), credibility (stereotypes) and the concealment approach.