Team Members: T. Grantham, C. Saunders and A. Yarritu*

*Note: The team members contributed equally and are listed in alphabetical order.

Blog Post

Increasing Access to LGBTQ+ NGOs for Asylum Seekers

What is the European Court of Human Rights (ECtHR)?

The ECtHR (European Court of Human Rights) is an international court that was founded in 1959 that has civil and political rights outlined in the European Convention on Human Rights (Council of Europe Office in Georgia, 2021). As such, it delivers rulings on applications either made by states or individuals that claim to violate such rights. The ECtHR has a registry composed of lawyers, administrative and technical staff as well as translators in accordance with Article 25 of the European Convention on Human Rights. The Court's parent organization is the Council of Europe, making all staff members of ECtHR staff members of that as well (Council of Europe Office in Georgia 2021).

In accordance with article 36 of the invention, the third-party intervention mechanism allows people aside from the applicant to "submit written comments or take part in a hearing" (Civil Society Portal). Over time, the ECtHR has allowed NGOs who are focused on defending human rights to submit writing to the court to support cases a provide further advocacy. NGOs can also take part in meetings and seminars that the court holds upon invitation. For seminars, the Court tailors the NGOs that are invited to the specific topics that are being discussed depending on their expertise (Civil Society Portal).

Human Rights Abuses of LGBTQ+ Refugees

The UN Geneva Convention considers gender and sexual identities as grounds for refugee status and an EU Directive from 2011 includes sexual orientation as a category that can lead to persecution (The untold story of LGBT refugees, 2022). Yet, the difficult need to provide evidence of one's queer identity makes the process all the more challenging. Statistics on LGBTQ+ refugee claims are limited, but in 2010 Stonewall reported that 98% of claims on the basis of being LGBTQ+ were rejected (The untold story of LGBT refugees, 2022). It's no wonder many hesitate to disclose their sexual or gender identity in the application process. Many remain terrified to say they are LGBTQ+ due to the dangers of coming out in their countries of origin. Rejected claims mean asylum seekers are forced to return home to a hostile, oftentimes dangerous environment.

LGBTQ+ members who flee do so because the governments of their home countries have discriminatory laws and policies set in place that put their lives at risk (Human Rights Watch, 2020). Aside from the actual government actively working against them, there is also no legislation that protects them from hate crimes and discrimination by others in the community (Human Rights Watch, 2020). The Middle East director at Human Rights Watch, Sarah Leah Whitson, notes that in the case of Iran, "the state open discriminates against [sexual minorities]; and they are vulnerable to harassment, abuse, and violence because their perpetrators feel they can target them with impunity" (Human Rights Watch, 2020). Iranian security forces use discriminatory laws to arrest people who they even suspect to be gay. There are even reports of Iranians experiencing abuse as severe as rape done by security forces employed by the government and there is no legislation or people to protect them. LGBTQ+ refugees flee to various countries in Europe because of things like the EU asylum law that "recognises exclusively sexual orientation and gender identity as reasons for persecution" (ILGA Europe, 2021).

Insufficient NGO Access to the Current Interview Framework for LGBTQ+ Asylum Seekers in the ECtHR

When immigrants apply to be asylum seekers, they undergo an interview process by asylum officers. For vulnerable LGBTQ+ asylum seekers, the process is often wrought with discriminatory, offensive practices such as “inappropriate medical tests, psychological assessments, invasive interrogations, or sexually explicit evidence” (EU Should Follow UN Guidelines on LGBT Asylum Seekers 2018).

LGBTQ+ friendly and knowledgeable NGOs can oversee the asylum interview process to ensure misconduct is not tolerated and all LGBTQ+ refugees feel safe and supported throughout their migration journey. An ILGA policy briefing reports that “LGBTI asylum seekers are often at risk of additional danger because of their SOGIESC during their journey and upon arrival in the country where they seek asylum, which can take the form of harassment, exclusion, sexual violence, or other forms of violence. Often but not always, they qualify as vulnerable persons with specific needs in legal assistance, reception conditions, healthcare, and others throughout the asylum process” (citation). Therefore, NGOs’ cooperation with the ECtHR can play an essential role in helping the groups.

Unfortunately, on the one hand, there are currently not enough LGBTQ+ specific NGOs that know how to properly treat queer asylum seekers and conduct proper interviews. In Serbia, for example, "there are no specialized NGOs, working with LGBTQI+ refugees. Local NGOs working with the local LGBTQI+community in Serbia, often don't understand the problems that people are facing" (The challenges faced when you're an LGBTQI+ refugee, 2021). This discourages LGBTQ+ refugees from applying for asylum and disclosing their identities to strangers. Specialized LGBTQ+ NGOs must be the norm, conduct extensive training, and be in charge of the asylum process.

On the other hand, the ECtHR has not fully taken advantage of this vulnerable person's status which can yield extra assistance to combat additional dangers queer refugees face. By attracting specific LGBTQ+ NGOs that handle the asylum process and giving specific oversight powers to these groups, the international community can end harmful practices that target LGBTQ+ refugees.

What is the solution?

Our proposed solution would have NGOs cooperating with the various countries in the European Union to ensure that LGBTQ+ asylum seekers are not mistreated or discouraged from immigrating by being subjected to discrimination during the immigration process. We propose that the ECtHR grants NGOs a larger role in suggesting guidelines for interviewing migrants using their gender or sexuality as a basis for their migration. The Court should appoint LGBTQ+ NGOs to be the ones who conduct asylum interviews and handle abuses of human rights, with the Court's legal support. These suggested guidelines would include avoiding degrading, dehumanizing, or inappropriate interviewing techniques. Another suggestion would be improved conditions in immigrant holding facilities, as LGBTQ+ refugees often face significant amounts of harassment from both other refugees and the facility staff (Council of Europe, 2018). We would also suggest increased cooperation between individual state governments and NGOs in order to introduce more friendly LGBTQ+ legislation and to make efforts to curb homophobic and transphobic hate crimes that occur within these countries of refuge. We also advocate for data regarding LGBTQ+ refugees to be specifically recorded, because there is an extreme lack of data regarding this community. Our final piece of expanded cooperation would be the inclusion of consultants from LGBTQ+ friendly NGOs in cases where immigrants are using their gender or sexuality as a basis for their immigration. These consultants would help interviewers avoid triggering topics and inappropriate questions, and would likely help prevent discriminatory practices. While much work needs to be done, we believe that these suggestions may help provide safety to those that most desperately need it.

References

Civil Society Portal. European Court of Human Rights. [online] Available at: <https://www.coe.int/en/web/civil-society/european-court-of-human-rights> [Accessed 02 October 2022]. 

Council of Europe Office in Georgia. 2021. The European Court of Human Rights. [online] Available at: <https://www.coe.int/en/web/tbilisi/europeancourtofhumanrights> [Accessed 02 October 2022]. 

Human Rights Watch. 2018. EU Should Follow UN Guidelines on LGBT Asylum Seekers. [online] Available at: <https://www.hrw.org/news/2018/08/30/eu-should-follow-un-guidelines-lgbt-asylum-seekers> [Accessed 29 September 2022].

Human Rights Watch. 2020. Iran: Discrimination and Violence against Sexual Minorities. [online] Available at: <https://www.hrw.org/news/2010/12/15/iran-discrimination-and-violence-against-sexual-minorities>

ILGA Europe. 2021. POLICY BRIEFING ON LGBTI REFUGEES AND EU ASYLUM LEGISLATION. [online] Available at: <https://www.ilga-europe.org/policy-paper/policy-briefing-on-lgbti-refugees-and-eu-asylum-legislation/> [Accessed 29 September 2022].

The IRC. 2021. The challenges faced when you're an LGBTQI+ refugee. [online] Available at: <https://www.rescue.org/uk/article/challenges-faced-when-youre-lgbtqi-refugee> [Accessed 29 September 2022].

World Economic Forum. 2022. This is the global refugee situation, in numbers. [online] Available at: <https://www.weforum.org/agenda/2021/06/unhcr-how-many-refugees/> [Accessed 6 October 2022].

Wesolowsky, T., 2021. The Worrying Regression Of LGBT Rights In Eastern Europe. [online] RadioFreeEurope/RadioLiberty. Available at: <https://www.rferl.org/a/lgbt-rights-eastern-europe-backsliding/31622890.html> [Accessed 29 September 2022].

Pew Research Center. 2022. Where Europe stands on gay marriage and civil unions. [online] Available at: <https://www.pewresearch.org/fact-tank/2019/10/28/where-europe-stands-on-gay-marriage-and-civil-unions/> [Accessed 6 October 2022].

World Economic Forum. 2022. The untold story of LGBT refugees. [online] Available at: <https://www.weforum.org/agenda/2018/01/lgbt-refugees-untold-story/> [Accessed 29 September 2022].