Matthew Scott - JAMR13 Migration Law 2 May LGBTI Asylum Claims

Transcription

1 Matthew Scott - JAMR13 Migration Law 2 May 2017 LGBTI Asylum Claims

2 Overview 1. Persecutory harm experienced by LGBTI people 2. Case study small groups BREAK 3. Discretion 4. Credibility 5. Best practice

3 1. Persecutory harm in LGBTI context

4 Persecutory legal frameworks

5 Forms of harm State actors of persecution Criminalisation, prosecution & prison (See joined cases C- 199/12-C-201/12 XYZ ) Forced institutionalization, forced sex-reassignment surgery, forced electroshock therapy and forced drug injection or hormonal therapy Torture and inhuman or degrading treatment in custody or prison Non-state agents Assault and harassment Corrective rape Discrimination in relation to housing, employment etc

6 2. Case Study

7 Case study 1. If Igor were to apply for recognition of refugee status in an EU member state, what are the prospects of success? Consider the elements: A well-founded fear Of being persecuted For a Convention reason Unable or unwilling to avail himself of the protection of his country of nationality Identify the legal doctrinal basis for your assessment 2. Looking only at Utlänningslagen 4 kap. 1, would his case have a greater or lesser prospect of success? 1 Med flykting avses i denna lag en utlänning som - befinner sig utanför det land som utlänningen är medborgare i, därför att han eller hon känner välgrundad fruktan för förföljelse på grund av ras, nationalitet, religiös eller politisk uppfattning eller på grund av kön, sexuell läggning eller annan tillhörighet till en viss samhällsgrupp, och - inte kan, eller på grund av sin fruktan inte vill, begagna sig av detta lands skydd.

8 Persecution on the basis of sexual identity - an example from Russia

9 Does he express a fear? Subjective-objective element of well founded fear

10 Does the condition he fears amount to being persecuted? A sustained or systemic denial of human rights demonstrative of a failure of state protection Hathaway Serious harm + failure of state protection A condition of existence in which discrimination is a contributory cause of (a real risk of) serious denials of human rights demonstrative of a failure of state protection Seeking out and exposing to serious harm in order to suppress or punish someone for something they are or believe

11 Threshold Discrimination versus persecution Core v margins But there are difficulties identifying a the core of a right (notwithstanding adoption of that concept by the CESCR) Consider Yogjakarta Principle 17G on gender reassignment core or margin?

12 Yogjakarta Principle 17 G facilitate access by those seeking body modifications related to gender reassignment to competent, nondiscriminatory treatment, care and support Would a person not provided access to body modification related to gender assignment be persecuted?

13 Is his fear of being persecuted wellfounded?

14 Well-founded fear Hathaway and Pobjoy on HJ & HT and S395 How to determine if a fear of being persecuted is wellfounded if the risk will not accrue as objective A will conceal (convincing?) assumption about meaning of persecution? Anne Frank not persecuted if she could avoid detection The question, what will the applicant actually do? (Lord Hope in HJ and HT referring to claims based on religious belief). Why is this the question do you think?

15 Is there a connection between being persecuted and one or more of the Convention grounds?

16 Nexus Some early obstacles with nexus, but headway already made by gender-based claims. Legal doctrine permits finding MPSG, but in practice the nexus question can be problematic: Obiter acceptance in Ward [1991] and Applicant A v MIEA 1997] Note Millbank s (2002) account of Mr Gui not arrested and beaten by police for being gay, but for contravening public decency by kissing in the park Jenni Millbank, Nonetheless, whether gay people may be members of a particular social group was the first question posed in the reference to the CJEU in XYZ

17 Is he able to avail himself of the protection of his country of nationality?

18 BREAK

19 3. Igor could just pretend not to be gay

20 Discretion 18. It has been said, for example, that it would be unreasonable for a gay man from Pakistan "to flaunt his homosexuality": Exparte T, Dec. No. CO/1191/99 (Eng. QB.D., May 11, 2000), quoting from the reasons of the Special Adjudicator. An Iranian homosexual was told that he should "... avoid overt and public, or publicly provocative, homosexual activity": ivezhadian v. MIMA, [2001] FCA 1415 (Aust. Fed. Ct., Oct. 18, 2001). The claim of a gay man from Turkish Cyprus was dismissed in a case in which the court recited, and did not reject, the view of counsel for the government that risk "... would be avoided by selfrestraint": Exparte Binbasi, [1989] Imm. A.R. 595 (Eng. QB.D., July 25, 1989). 19. Perhaps most explicitly, the Federal Court of Australia upheld a decision refusing the claim of a Sri Lankan homosexual, noting that "[i]mplicit in [the] finding of the Tribunal is the view that a level of discretion for the purpose of avoiding persecution is to be expected of the applicant. Rodger P. G. Haines; James C. Hathaway; Michelle Foster, Claims to Refugee Status Based on Voluntary but Protected Actions, 15 Int'l J. Refugee L. 430 (2003)

21 Discuss Does the following view reflect the state of the art in relation to LGBT claims? The need to protect fundamental human rights transcends national boundaries but, in assessing whether there has been a breach of such rights, a degree of respect for social norms and religious beliefs in other states is in my view appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is reasonably tolerable in a particular society, the factfinding Tribunal is in my view entitled to have regard to the beliefs held there. Pill LJ in HJ (Iran) and HT (Cameroon) v SSHD [2009] EWCA Civ 172

22 Discretion Avoiding flaunting ; unnecessary risk taking Core versus margin of right what is entailed by living openly? the public/private paradox (Millbank 2002 MULR) S395 HJ (Iran) EWCA the question is whether a person can reasonably be expected to tolerate being discrete HJ (Iran) and HT (Cameroon) UK Supreme Court

23 S395/2002 v MIMA Australian case regarding Bangladeshi couple who feared being persecuted owing to their sexual orientation Had been discrete at home Lower Tribunal had imagined two particular social groups gay men who are discrete, and gay men who are open. Majority in High Court considered lower tribunal failed to enquire why they had been discrete to avoid being persecuted and noted that having to be discrete to avoid being persecuted is itself a form of being persecuted Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.

24 Win v IMIA [B]y reference to an historical example, upon the approach adopted by counsel for the respondent, Anne Frank, terrified as a Jew for hiding and for her life in Nazioccupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered were remote, she would be sent back to live in the attic Win v Minister for Immigration & Multicultural Affairs [2001], FCA 132, Australia: Federal Court, 23 February 2001, at para. 17

25 HJ (Iran) and HT (Cameroon) in Court of Appeal HT (Iran) Claimant could be reasonably able to tolerate discretion on return to Iran (note S395 notion of what it means to be persecuted so how being persecuted is defined has significant implications for RSD) HT (Cameroon) Claimant would be discrete if returned (note HT had been attacked after been spotted kissing a man in his own garden)

26 HJ & HT 5 point test 1. Is the applicant gay, or would he be treated as gay by potential persecutors? 2. If so, are openly gay people at risk of persecution? 3. If the applicant would be openly gay, then (s)he has a well-founded fear of persecution [but note same degree of openness as in UK not required core v margins] 4. If the applicant would live discreetly, the decision-maker must ask why. 5. If a material reason for living discreetly on return is fear of persecution that would follow from being openly gay, then there is a well-founded fear of persecution even if the risk would not accrue but if the person would be discrete for some other reason (social/family pressure) then there is not a well-founded fear of being persecuted even if the risk does not accrue Is the fifth question accurate/effective?

27 Joined Cases C-199/12 to C-201/12 Minister voor Immigratie v XYZ (1) Are gay people MPSG? (2) Which homosexual activities fall within the scope of the Directive and (a) Can gay people be expected to conceal their orientation from everyone in their [respective] country of origin in order to avoid persecution? (b) If the previous question is to be answered in the negative, can gay people be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals? (c) Is it possible to determine forms of expression that relate to a core of sexual identity? (3) Does criminalisation of homosexual activities constitute persecution?

28 XYZ Answers 1. MPSG? - must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group 2. Discretion? When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation 3. Criminalisation? the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

29 4. Credibility Millbank (2009) from discretion to disbelief Stereotypes and sexualisation ABC

30 From discretion to disbelief Jenni Millbank, From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom, The International Journal of Human Rights, 13:2-3, Australian cases and 116 UK cases from significant increase in challenges to claimed sexual orientation since S395/2002 with alarming use of stereotypes to found decisions I do not accept this as reasonable. The claimant is a welleducated man who understood the consequences of being gay. It is unreasonable that such a man would choose a life style which would inevitably cause him problems the claimant s description of his experience of his recognition of being a homosexual is inconsistent with someone who is truly gay

31 Credibility how applicant can affect Applicant can harm credibility by Late disclosure Vague and/or inconsistent account of past experiences but consider: Experience of homophobia in officialdom Not comfortable with sexual identity Relevance of gender/ethinic background of parties to interview Demeanour does the claimant seem gay? Fabricating an alternative narrative can still be found credible overall Failing to present the narrative consistently Impact of PTSD (i.e. following sexual assault) on memory Depression

32 Credibility Assumptions by decision-makers Failure to appreciate challenges LGBTI claimants have Stereotyping Sexualization of LGBTI identity

33 MIG 2013:25 Re Nigerian man who claimed asylum after being convicted of fraud and recommended for deportation MiÖD take opportunity to survey and approve of developments in this area, including HJ and HT as well as XYZ Provides guidelines on evaluating the claim, acknowledging the guidelines produced by Migrationsverket

34 5. Best practice

35 C-148/13, C-149/13 and C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie What limits do Article 4 of the Qualification Directive and the Charter of Fundamental Rights of the European Union, in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect? No decisions based solely on answers to questions based on stereotypes No detailed questioning of sexual practices No subjection to tests No refusal merely because of late claim Positive guidance lacking from the court

36 S395 on sexual orientation Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense discreetly ) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality (para 81)

37 Interviewing individuals seeking protection from gender or sexual identity-based harm Decision makers have guidelines (In Sweden: Rättsligt ställningstagande angående utredning och prövning av den framåtsyftande risken för personer som åberopar skyddsskäl på grund av sexuell läggning, könsöverskridande identitet eller könsuttryck - SR 38/2015 Consider: Heteronormative understanding / insight in importance of a gender perspective Hard to tell about sensitive issues, possibility of feelings of shame and taboo Separate interviews with family members affects possibility to tell about violations in the family Awareness of possible effects of trauma Who is the interviewer, interpreter, legal counsel? Importance of country of origin information Specific approach to establishing LGBTI identity (UNHCR Guidelines DSSH model)