Martínez Rodríguez, Víctor – Refugee Law and Homosexuality: Is there a need for special protection?

Martínez Rodríguez, Víctor –  Refugee Law and Homosexuality: Is there a need for special protection?

Read the full paper here.

Abstract

Under the 1951 Convention relating to the Status of Refugees, many human beings have found asylum protection on these grounds: race, religion, nationality, political opinion and particular social group.

In the 1990s, national courts of several western countries started to deal with the issue of homosexual asylum-seekers. Are homosexuals entitled to obtain asylum protection according to International Law? Can they be included in the 1951 Convention definition of refugee? According to the literacy of the Convention, sexual orientation is not a valid ground in order to ask for asylum.

However, judges started to wonder whether homosexuals could be comprised in the ‘particular social group’ ground. After some negative decisions, it seems that homosexuals are deemed to constitute a particular social group and therefore included in the Convention definition of refugee, since homosexuality constitutes an immanent characteristic of the personality. Therefore, nobody should be required to change it in order to avoid persecution.

In spite of this development, there are still some confusion in judicial decisions regarding homosexuality as a status and the expression of this status: having a couple, kissing in public, etc. Some decisions seemed to suggest that in order to avoid persecution homosexuals should hide their condition and live discreetly, argument rejected in other decisions since it would tantamount to being forced to change an immanent characteristic of a human being such as sexual orientation.

Another important aspect that all asylum-seekers have to deal with is the issue of credibility, especially when they do not carry any documentation or evidence that support their claim. This is the case in most cases of homosexual applicants. When assessing their credibility, decision makers may be sometimes conditioned by their own biased stereotypes about homosexuality. Therefore, clear and detailed guidelines on this matter would be welcome. On this regard, the United Nations High Commissioner for Refugees issued in 2008 a Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, which deals with this issue, among others, but in some cases in an unsatisfactory manner.

In many cases, homosexual refugees suffer from serious trauma. This, along the fact that homosexuality is a taboo in their countries of origin, can make, for instance, that they find extremely hard to talk about their sexual condition and their personal stories. Therefore, one may wonder whether the asylum procedures should be adapted to the specificities of these cases.

These and other aspects (well-founded fear of persecution, agents of persecution, state protection, refugees sur place, etc.) are analyzed in this thesis, including an overview of the situation of homosexuality in the world, also from a historical perspective, and the steps made in national and international level towards the protection of the rights of homosexuals.

Read the full paper here.

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