Refugee
Womenís Resource Project - Asylum Aid - Issue 21 May 2002
Lesbian, gay, bisexual and transgender asylum seekers: obstacles to protection under the 1951 UN Convention In January 2002, an immigration court in Chicago (USA) granted refugee status to a gay man who fled his country after years of living in fear of persecution at the hands of his family, the police and anti-homosexual groups (see more details below p.5). His advocates claimed the man qualified for asylum based on ëhis membership in the social group of gay men with female sexual identitiesí.
His case adds to a growing number of gay and lesbian asylum seekers who, in recent years, have been granted refugee status on a similar basis in Australia, New Zealand, Northern America, as well as Northern Europe. However, the number of such cases remains limited to a few hundreds and lesbian cases are even rarer around the world.
In the UK, Heaven Crawley notes that ëthe question as to whether homosexuals constitute a particular social group within the meaning of the Refugee Convention has closely followed the debate and case-law developments regarding the construction of particular social groups more generallyí.[1] In this respect, the decision in Shah and Islam is particularly relevant to sexual orientation cases as shown by the fact that the Asylum Directorate Instructions for Home Office decision-makers refer directly to it when providing guidance on such cases: ëIn the light of the judgment we can no longer argue that homosexuals (or other persons defined by sexual orientation) are not capable of being a social group. Discrimination against homosexuals in a society may be such as to single them out as a social group depending on the factual circumstances in the country concernedí.[2]
Despite this positive trend, there is acknowledgment that lesbians around the world face additional obstacles when seeking protection under the 1951 UN Convention. According to Shannon Minter, staff attorney for the National Centre for Lesbian Rights, ëaccess to asylum is an all but unreachable goal for the vast majority of lesbians who need protectioní.[3] Heaven Crawley also reports that ëinformation provided by the [International Gay and Lesbian Human Rights Commission] suggests that lesbian asylum seekers are at a disadvantage even vis-ý-vis gay mení.[4]
Main issues for homosexual asylum seekers and their advocates A review of a handful of (mostly male) cases determined recently highlights the most common issues that need to be addressed by advocates as far as lesbian, gay, bisexual or transgender (LGBT hereafter) asylum seekers are concerned.
Credibility: If the client has not revealed his/her homosexuality immediately on claiming asylum, the Home Office (HO), adjudicator and/or judges may question his/her credibility. Yet there are various reasons for a client to delay disclosing this information: cultural constraints may lead people to feel uncomfortable talking about it, or some may have fled for other reasons and/or did not realise that their homosexuality was a factor in the persecution they suffered.
Muslims are among many cultures who may find it very difficult to talk about homosexuality due to the taboo attached to homosexuals in the societies they come from. Lesbians are often reported to make claims on other grounds than that of sexual orientation. As a result, they may not ëcome outí for months if not years after first applying for asylum (in other cases it may never be revealed). The result is that the credibility of the claim is questioned.
An example of credibility being challenged on this basis (homosexuality not disclosed at an early stage) is clearly provided in the case of Krasniqi: the Adjudicator ëdid not find the Appellant's assertion that he was a homosexual to be credible on the basis of the timing when the information was put forward as a basis for the Appellant's fears. The Adjudicator noted however that such an allegation is easy to make and impossible to disproveí. In appeal, the judge noticed that ëwith regard to the appellant's claim to be a homosexual, (Ö) no evidence has been produced to us to establish that the Adjudicator was wrong in making that findingí.[5]
Anisa de Jong from the SAFRA project,[6] who facilitated last monthís workshop on Muslim LGBT and asylum, recalled the case of a Lebanese man who had been seeing a counsellor for 2 years without revealing his homosexuality. She saw herself the client four years after he first claimed asylum. On the basis of the account he had given until then, she suspected that he was a homosexual and proceeded to explain to him in details all the grounds for claiming asylum under the 1951 UN Convention. She explained carefully how they could include sexual orientation. The client opened up during his second meeting with her.
Another obstacle is that HO decision makers, adjudicators and judges make assumptions about lesbian and gay people: if they are married or have children, they will question the nature of their sexuality and the basis of their asylum claims. The cultural or religious background of the clientís own solicitor can also be perceived as problematic and can lead to late disclosure. In terms of credibility too, cases of Muslim lesbians present a particular challenge for legal representatives or caseworkers. They usually have very limited sexual experience or maybe none at all.
Persecution: The challenge for all advocates is to prove that the treatment experienced amounts to persecution under the 1951 UN Convention. For lawyers or caseworkers representing homosexuals it is an even greater challenge. A typical example is the approach taken in the Netherlands, where lesbian and gay were recognised as particular social group under the Geneva Convention in the early 80s. Despite this, the main problem they face is proving the treatment they suffered amount to persecution or serious harm.
In
addition to other forms of human rights violations, gay and lesbian may endure
discriminatory policies that prevent them accessing essential services such as
employment and/or health care. Some are forced to undergo ëmedical
interventioní in order to attempt to alter their
sexual orientation. Other lesbians
may be forced to conform socially by being forced to marry and have sexual
relationship with their husbands. Yet proving that discrimination or adherence
to social mores amount to serious harm is not easy task. Back in 1994 an Immigration Judge in
the USA concluded that a Russian lesbian who had been put in a special
institution and underwent ëmedical treatmentí
forcibly had not suffered serious harm within the meaning of persecution.[7]
Gay or lesbian asylum seekers may therefore have to suffer years of cumulative discrimination and/or serious harm before being seen as ëeligibleí to apply for refugee protection.
Lack of objective evidence is intrinsically linked to the question of persecution and refers to two issues: evidence of persecution of homosexuals and whether the state tolerates persecution of homosexuals. In Krasniqi,[8] it was found that ëeven if we were to accept that the appellant is a homosexual and therefore a member of a particular social group, we would still dismiss this appeal as we have seen no evidence that as a homosexual the appellant will be at real risk of persecution on removal to Kosovoí.
Whilst Krasniqiís advocate admitted that he had been unable to find evidence of homophobia in Kosovo, he also pointed that it was very likely that ëin an Islamic society there would be open and deep hostility towards homosexualsí. This was especially true of Kosovo which remains a rural and conservative society. He submitted that the judges ëshould take notice that in such societies bigotry existsí. He also pointed to a report from the Kosovo Information Project which suggested that ëthere is no sufficiency of protection for homosexuals in Kosovo because there is no tracking system for any complaints in this regardí. The evidence was however not deemed sufficient by the court to prove persecution.
Up-dated information on the actual treatment of homosexuals constitutes a major problem, especially in countries where there is limited information from the country of origin. Amnesty Internationalís report, ëCrimes of hateí, describe the invisibility and experience of LGBT in a number of countries. Other human rights reports provide very few information. Barry OíLeary, solicitor for Wesley Gryk Solicitors and member of Stonewall Immigration Group who specialises in asylum cases based on sexual orientation, confirmed that with the exception of Iran all HO Country Information Policy Unit (CIPU) reports are silent on the issue.[9] When they acknowledge the existence of laws prohibiting homosexuality, CIPU reports state that such laws are not put into practice therefore homosexuals not deemed to be at risk of persecution.
Such an approach is clearly adopted in court: in Z v SSHD (01/TH/2634), 8 November 2001, the Secretary of State argumentís was that ësince sodomy law was note enforced [in Zimbabwe], the appellantsí rights would not be infringed by its existenceí. Whilst the tribunal was sympathetic to such an argument, it also stated: ëwe cannot see how the conclusion can be avoided that the existence of a law against sodomy is an infringement of the rights to private life of anyone who might wish to engage in that practiceí. In other words, it was found that the prohibition of homosexuality constitutes a violation of oneís human rights.
Even when evidence is available, there may be a reluctance to admit that lesbian and gay suffer from persecution. In another Zimbabwean homosexual case,[10] the Tribunal recorded that the Appellantís representative ëwas quite unable to refer us to any evidence of actual current public outrage against homosexuals in Zimbabweí. This statement was made despite well documented years of anti-gay propaganda by President Mugabe which culminated with his public statement describing lesbians and gays as being ëworse than pigs and dogsí.[11]
The difficulty lesbian women face is that of evidence of actual prohibition of female homosexuality: in some countries there are explicit laws prohibiting male homosexuality but not female. As a result, lesbian women are deemed not to be liable to prosecution. A lesbian from Malaysia who had been forced to marry was refused asylum because it was concluded that it was unlikely that she would be prosecuted under Malaysian sharíia law (see below gay case for treatment of homosexuals in Malaysia).[12]
There is also the issue of the individual having recourse to the authorities for protection: lesbian women for instance will often not go to the police because they are aware that homosexuality is prohibited. In such cases, caseworkers need to depend on objective evidence. But there have been successful cases where state agents have not been involved: the caseworker has had to demonstrate that discrimination and/or persecution has happened throughout life, from childhood to present day.
In the case of Rackus,[13] the adjudicator said there was a paucity of evidence that authorities are condoning violence against homosexuals and said that the violence suffered was the result of a breakdown of discipline amongst individuals. The tribunal however rejected this and allowed the appeal.
Suggestions to help ensure better protection were put forward at SAFRAís first focus meeting in April 2002. There was a consensus on raising awareness about the issues amongst legal practitioners and caseworkers through training workshops.[14]
Social and health workers were also suggested as a target group not the least because they may be the first point of contact for homosexuals or the first person to whom they would talk about their experiences. In addition, Islamophobia and/or xenophobia are common in society.
The choice of interpreter (who should be from a different country or culture altogether if possible) is equally crucial. The Lebanese client who revealed the true basis of his story after four years did so partly because he was then able to talk without the use of an interpreter. It was therefore suggested that it would be good for caseworkers to build up a list of appropriate interpreters. At the same time, caseworkers should keep a record of inappropriate interpretation and used such a record at a later stage if necessary.
Information Sharing, around good practice was deemed equally crucial. For instance, Barry OíLeary has created a very successful group of solicitors that represent Jamaicans claiming asylum on the basis of their sexual orientation. He is very keen on creating a similar forum not only for practitioners, but also for homosexual asylum seekers to share their experiences. Stonewall Immigration Group has also put a list of solicitors with details of their speciality on their website: www.stonewall-immigration.org.uk/.
Women Living Under Muslim Laws announced that they were currently gathering information on the legal status and community/social acceptance of LGBT in Muslim countries and countries with a significant Muslim population.
Other suggestions included the dissemination of information on experts, liasing with the Lesbian and Gay Human Rights Commission (LGHRC) and other groups such as the International Lesbian and Gay Association; as well as refugee womenís organisations that may have split with other mainstream groups for standing up for such issues as homosexualsí rights.
And SAFRA proposed to create an e-list for members to be kept informed on issues around Muslim LGBT, possibly with different sub e-lists re: asylum, access to social services, etc. SAFRA is also planning to organise a conference in June in Manchester. For more details, please contact anisadejong@hotmail.com .
International case law: Gay Malaysian with a female sexual identity gains refugee status in the USA[15] In January 2002, an immigration court in Chicago (USA) granted refugee status to a man who had fled his country after years of living in fear of the police, Islamic authorities, vigilante groups, and his own family. The submissions made by his advocates held that the man qualified for asylum as he had escaped persecution at the hands of the police and anti-homosexuals groups based on ëhis membership in the social group of gay men with female sexual identitiesí.
His advocates said that the courts in the USA have consistently looked at the United Nations Handbook for guidance in defining social group. In particular, and inter alia, they based their argument on the Mexican case of Hernandez-Montiel where the (9th Circuit) court held that ëa particular social group may be united by a voluntary association or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot change it or should not be require to change ití. The court concluded that ësexual orientation and sexual identity are immutable; they are so fundamental to oneís identity that a person should not be required to abandon themí. The court accepted that in Mexico ëgay men with sexual identities are ostracized from an early age and subjected to persecution and police misconductí.[16]
In the case of Malaysia, it was argued that gay men with female sexual identities are a ësocial groupí. Such men are known as ëmak nyahí (transsexuals) and ëpondaní (gender-crossers), a large number of whom are Muslim Malays who are condemned for violating the tenets of Islam.[17] They are labelled sexual deviants and generally shunned by society at a young age. As a result, they tend to frequent certain areas where they know there will be others like them. They also share specific social characteristics, such as mannerisms and style of dress (often in the form of female clothing).
In this context, it was shown that the respondent was routinely ridiculed and abused from an early age, and throughout his teenage and adult life, by his parents, teachers, peers, religious leaders and, ultimately, by Malaysian authorities. He suffered continued bullying at school and his parents repeatedly abused him physically, hitting him household objects. On one occasion, his mother hit him with a broom with such force that he had to go to the hospital with a severe head wound.
He also faced severe persecution in the Malaysian society. He and his friends were verbally and physically harassed wherever they went. One night, he was forced to carry out oral sex and witness two of his friends being sodomized by police officers. Not only did the experience traumatize him but he had to live with the threat of similar harassment, violation and persecution on a regular basis.
The lawyers argued that the respondent had a well-founded fear of persecution if returned to Malaysia particularly in the context of rising influence of and support for Islamic fundamentalism and as the very authorities meant to protect him from homophobia are known perpetrators of such mistreatment.
Current evidence shows that the Malaysian
Islamic Affairs Department operates as ìthe morality policeî, with fifty enforcement officers across the country who are
empowered to arrest Muslims suspected of breaking Islamic laws, including
homosexuals, transvestites and transsexuals. A recent study also demonstrates that these laws are
routinely enforced: gay men with female sexual identities are apprehended by
the police and Islamic religious authorities at relatively high rates.[18] Gay men have also been blamed by the
authorities for the countryís social and economic struggles.[19]
Pakistani woman fleeing domestic violence wins asylum case in Australian High Court
On 11 April 2002 a High Courtís decision in Australia allowed refugee status to a Pakistani woman who fled her country after being repeatedly assaulted by her husband.[20]
The opinion of one of the dissenting judges, which we reproduce in part below, highlights however the diversity of views expressed in cases of domestic violence and more generally the potential of a lack of uniformity in decisions made on gender-related persecution worldwide.
The woman had been the ëtarget of domestic violence at the hands of her husband, and, to a more limited extent, of his family. The violence included slappings, beatings, which led to her hospitalisation, a threat to throw acid on her and a threat to kill her by setting fire to her. On one occasion, an attempt to set fire to her commenced when she was doused with petrol, an activity which stopped when a neighbour arrived in response to the screams of Ms Khawar and her childrení.
She reported the violence to the police on four separate occasions but received no protection. She was told instead that ësuch incidents were occurring throughout the country and that they could do nothing about ití or that ëwomen always tried to blame their husbands for problems of which they were the real causeí. On one occasion, her husband and his brother beat her so harshly for reporting her case to the police that she had to be hospitalised for a week. She fled in 1997 and applied for asylum in Australia.
Her application was refused in January 1999 by the Refugee Review Tribunal (RRT) who found that: ëthe conduct that the Respondent feared was not for reasons of her membership of any particular social group, nor was it for any other Convention related reason. It found that the Respondentís problems were related solely to the fact that she married her husband against the wishes of her husbandís familyí.[21]
Whilst the Tribunal found that the woman had not been harmed for a Convention reason, it did consider that the harm she suffered ëwas of sufficient severity to come within the meaning of the expression ìpersecutionîí.[22] On the other hand, the RRT did not indicate whether it accepted the submission that there is a systematic failure by police in Pakistan to investigate complaints of domestic violence. The applicant applied to the Federal Court for review of the Tribunalís decision on the grounds that the Tribunal had failed to make findings with regard to the authoritiesí failure to provide protection.
The Federal Court (Branson J) agreed on this matter but also concluded that the ëTribunal reached a conclusion on the question of whether [the applicantís] fear of persecution was for reason of her membership of a particular social group without first identifying the relevant social groupí. The judge set aside the decision of the Tribunal and referred the matter to the Tribunal ëfor further consideration according to lawí.
An appeal by the Minister to the Full Court
of the Federal Court was dismissed by majority on 23 August 2000. The majority
found that ëthe
stateís conduct constituted persecution and secondly, by finding that the
combination of the husbandís conduct and the stateís conduct also constituted
persecutioní.
On 1st June 2001, the High Court granted the Ministry for
Immigration leave to appeal the decision of the Federal Court.
The main grounds for appeal were:
ëThe majority erred in law by holding
that a stateís systemic failure to protect the members of a particular social
group who were subject to domestic violence could constitute persecution ëby
reason ofí the victimís membership of the group, even though the perpetrator of
the violence was not motivated by a Convention reason to inflict the
violence.
The majority [also] erred by holding that the causal
nexus required by the words ëby reason ofí could be established if domestic
violence, perpetrated for a non-Convention reason, was inflicted in the
knowledge that state protection would not be provided to the victim by reason
of her membership of a particular social groupí.[23]
The decision of the High Court
In reaching its decision to dismiss the Ministerís appeal, the High Court decided in its majority that the decision of Branson J and the Full Court was correct and pointed to the decision in Ex parte Shah. The majority of the High Court said that the Tribunal had failed to determine whether Mrs Khawar was a member of a ëparticular social groupí. One judge concluded: ëIn my view it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group. (Ö) Cohesiveness may assist to define a group; but it is not an essential attribute of a group. Some particular social groups are notoriously lacking in cohesiveness í (par. 33).
In addition, it agreed that ëthe Tribunal did not make a finding upon material put forward on behalf of Mrs Khawar which would tend to show a systematic failure by Pakistani police authorities to investigate or to lay charges in respect of complaints by women of domestic violence against them.í (par. 80).
One judge in the High Court dissented: ëWhat there is here is what sadly occurs from time to time everywhere (Ö): violent family discord of which the unfortunate first respondent is the victim and in respect of which the police are reluctant interveners. .(Ö) As to women married to abusive husbands (Ö) there will always be questions as to the efficacy and availability of local measures to prevent the abuseí (par. 154). He added: ëthere is no finding of fact by the Tribunal that the government of Pakistan was complicit in violence to women in abusive relationships. (Ö). It is very difficult, indeed probably impossible, for an Australian court to assess according to our own standards or the standards of other countries the policing priorities of those countries. There needs to be, for persecution to have occurred, elements of deliberation and intention on the part of the State, which involve, at the very least, a decision not to intervene or actí (par. 155, Our emphasis).
This position was rejected by the High Court and one Judge in particular: ëMany countries (including, at least until quite recently, Australia) have afforded imperfect protection to women who suffer domestic violence. It does not follow that it is impossible to distinguish those countries that, however imperfectly, provide agencies of the law and non-discriminatory legal rules to address the problem from those countries that, for supposed religious, cultural, political or other reasons, consciously withdraw the protection of the law from a particularly vulnerable group within their societyí (par. 130).
UK Projects, Events, News
Refugee Mental Health Conference The Conference will take place on 17th June 2002 at the Arcola Theatre, 27 Arcola Street, London E8 2JD (10:30am to 4:30pm) and will include plays, exhibitions, workshops and a panel discussion. The event, organised by Social Action for Health will be an ideal opportunity for refugees, mental health professionals, community and frontline workers to get information, network, discuss issues and make recommendations. It is free for refugees, community workers, activists, and voluntary sector. A small fee of £20 is charged if you are working in a statutory organisation. Please book your place as early as possible by contacting
Social Action for Health, Brady Centre, 192 Hanbury Street, London E1 5HU, tel 020- 7247 1414, fax 020- 7247 7447 or email:
Appeal
for Afghan Women RAWA Some practitioners from the Refugee Legal
Centre are organizing a fundraising event for the Revolutionary Association of
the Women of Afghanistan RAWA (for more see www.RAWA.org) on Thursday July 4th
at the Arts CafÈ, 28 Commercial Street, London E1 6LS (£8 a ticket). Performance include a couple of
comedians including Shazia Murza and a live band invited to perform and a
number of gifts have already been selected.
The organizers are however still looking for people who would be able to contribute with the fundraising either by donating items/goods that can be auctioned or who would be able to perform on the night. Thank you to contact Anita Sharma at asharma@refugee-legal-centre.org.uk.
International News
The basis of the discussion is the recognition that ëprescriptions for gender roles and relations can lead, for example, to so called ìhonor killingî, rape and domestic violence. Men as well as women are affected. The scourge of gender-based violence is one of the most serious obstacles to the achievement of gender equality. It will be addressed with a focus on men's roles and responsibilities in ending it. The panel will raise questions, then, concerning socialization processes and discourses of masculinity and offer some examples of policy and program leadership at both national and global levelsí.
For more details, visit online:
www.undp.org/gender/programmes/men/men_events_beijing.html
Publications/Other resources Committee to Defend Womenís Rights in the Middle East produces new bulletin ëWomen in the Middle Eastí, provides news on the latest events, legislation or violations affecting womenís rights in Islamic and secular countries in the region, ranging from North Africa to Middle East or any other country where Islamic rule affects the life of women. The first issue (May 2002) reports on four women currently awaiting to be sentenced to death by stoning in Iran, Pakistan and Nigeria (see also WAN, Issue 20 April 2002). Meanwhile in Mecca, Saudi Arabia, 15 pupil girls were burnt to death in a girlís school as the religious police prevented the girls to escape the blaze and firemen to evacuate them because the girls were not wearing the mandatory Islamic dress.
Morocco & Jordan: reforms in womenís civil rights In Morocco the governmentís proposal to eliminate inequalities in the laws has been met with resistance amongst political Islamic groups as they denounce the reform as a threat to Islam and family. The reform would raise the legal aid for marriage to 18 from 15 for women, outlaw polygamy in most cases and allow divorcee women for the first time custody of their children if they remarry. In December last year, the Jordanian Cabinet also approved several amendments to the Civil status law including: new restriction on polygamy, provisions for women to have legal resource in case of divorce, and raising the legal age for marriage to 18 for women and men; in addition, a legislative amendment to Article 340 of the Penal Code means that perpetrators of honour crimes are not exempt from the death penalty.
The Committeeís website can be visited at www.eclipse.co.uk/women. For more information or to subscribe to the bulletin (by email), contact Azam Kamguian, at azam_kamguian@YAHOO.COM .
Human Rights Watch complete Migrants Rights Project online For information on HRWís work on the rights of migrants and asylum seekers in Western Europe, visit
HRWís Childrenís Rights Division also released a publication ëNowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Moroccoí (available in English and Spanish, a summary and recommendations also available in French and Arabic). For a copy, please contact masona@hrw.org
Information pack on ëNon-Consensual Sex in Marriageí (NCSM) The pack produced by the non-governmental organisation Change contains details on legal frameworks (including international instruments), policy initiatives and cultural contexts and relevant research data on NCSM, as well as a collection of womenís testimonies from all over the world. It also contains a bibliography and a list of useful contacts for sources of information.
To obtain a copy, please contact Kate Bell on: Tel: 020 7733 6525 Fax 020 7733 9923 or email: change@sister.com or write to Change, Bon Marche Centre Room 222, 241-251 Ferndale Road, London SW9 8BJ.
UNHCR releases paper on ëRefugee Womení as
part as its Global Consultations on International Protection on Women (May 2002) The paper (re: EC/GC/02/8, 25 April 2002) produced in consultation with a number of partners addresses the five ëmost salient and sometimes
inter-related protection concerns facing refugee women todayí and includes:
ß
safety and
security in all refugee projects and programmes;
ß
facilitating
equal access to humanitarian assistance and essential services;
ß
registration and
documentation issues including the separate documentation of women;
ß
gender-sensitive
application of refugee law and procedures including facilitating separate
claims for women;
ß
trafficking in
women and girls and including extending asylum procedures to the victims of
trafficking.
Crucially the UNHCRís document affirms domestic violence as a basis for asylum:ëThe refugee definition, itself, allows for an array of valid gender-based claims, including (...) severe forms of domestic violence (Ö). In addition, most countries recognize non-State actors of persecution, including husbands or partners who violate a woman's human rights, where the state is unable or unwilling to protect against persecutioní (para. 14).
The full document is available in pdf at www.unhcr.ch/prexcom/globalcon.htm .
Also produced by UNHCR is the latest statistics report on asylum trends in Europe, North America, Australia and New Zealand for January ñ March 2002 (25 April 2002) available online: www.unhcr.ch/cgi-bin/texis/vtx/home?page=statistics
Nationality, Immigration and Asylum Bill: a full text copy of the second reading of the Bill is available online at: www.asylumsupport.info/thenewbill.htm.
In addition, www.segregation.org.uk provides
information on the UKís non compliance with UN Convention on the Rights of the
child, with material about the forthcoming Human Rights challenges to providing
segregated education to children of asylum seekers. See also: Ahmed, ëCherie
Booth firm takes on Blunkett over asylum child educationí, The Observer, 5 May 2002 at: www.guardian.co.uk/
Produced by RWRP
(for more details on
The
RWRP is funded by the Community Fund, the Joseph Rowntree Charitable Trust,
Oxfam, Womankind Worldwide, Servite Sisters Charitable Trust Fund, Avenue
Trust and Law Society Trustees.
Any views expressed in this publication are those of the
authors. Any legal information in this bulletin
is intended as a general guide only, and should not be used as a substitute
for legal advice. Any
contributions from, or references to, external sources, agencies or
individuals do not necessarily reflect the views of Asylum Aid nor receive
our endorsement.
information
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Street
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Fax: 020 7247 7789
Email: sophiac@asylumaid.org.uk
Website: www.asylumaid.org.uk
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womenís ASYLUM NEWS
[1] Crawley, H., ëRefugees and Gender: Law
and Processí, Jordans,
London, 2001, pp.161-174.
[2] Quoted by Crawley, H., op. cit. (emphasis
in original). See also footnote 16
below on the interpretation of membership of a ëparticular social groupí in Shah
and Islam.
[3] See Minter, S., ëLesbians and asylum:
overcoming barriers to accessí, p. 3, in Levy S (ed) ëAsylum Based on
Sexual orientation: A resource guideí (International Gay and Lesbian Human Rights
Commission, London Legal Defence and Education Fund, London).
[4] Crawley, H., ibid.
[5] Krasniqi v SSHD CC-22108-00 (01TH02140),
30th August 2001
[6] SAFRA, is a
resource project for LGBT who are Muslim and / or come from a Muslim background
and encounter obstacles in obtaining fair and equal social services or legal
protection because of their cultural, religious or ethnic identity, or gender
and sexual orientation (see also Womenís Asylum News Issue 20).
[7] In Re Pitcherskaia, No A-72143932 (Immigration Judge, 13 June
1994).
[8] See footnote 5 for reference.
[9] CIPU reports are produced by the
Immigration and Nationality Directorate and are used by HO decision-makers when
determining asylum cases.
[10] Darnley Ashley v SSHD (01/TH/1837), 21
September 2001
[11] The Daily News confirmed
these facts when it recently reported on the investigation of allegations that
the Zimbabwean Broadcasting Corporation's chief executive officer (CEO) was
homosexual after he was caught in a city nightclub, prompting security guards
to arrest him (see ëZBC probe Bossí, 2 April 2002, Harare, online at
http://allafrica.com/stories/200204020196.html).
[12] Refugee Appeal No 2151/94 13 November 1997,
quoted by Crawley, H., op. cit., p. 167.
[13] Rackus v SSHD CC-47585-98 ([2002] UK
IAT 00200), 1st February 2002.
[14] In many ways, the issues at stake are
similar to that of gender issues in an asylum case but they still may need to
be explicitly ëunpackedí
for all dealing with homosexual asylum seekers.
[15] This is a summary version of the submission
made to the Immigration Court kindly provided by Vanessa Melendez, Assistant
Clinical Professor of Law at Northwestern Law School Bluhm Legal Clinic,
Chicago, USA.
[16] In the UK, a similar approach to the
interpretation of membership of a ëparticular social groupí as referred to in the 1951 UN Convention
was adopted by the House of Lords in the case of Shah and Islam (1999). Crucially, rejecting a previous ruling (SSHD
v Savchenkov [1996] Imm AR
28 (CA), the Lords found that ëwhilst [the] social group must exist independently of
persecution, discrimination against the group could be ‚taken into account in identifying it as a social group i.e.
discrimination against the group could be a factor contributing to the identity
of a social groupí. The Lords also rejected the concept of
ëcohesivenessí required for the existence of a social group (see Islam v
SSHD; R v IAT ex parte Shah [1999]
INLR 144, Imm AR 283 (HL).
[17] Under Islamic law, sexual relationships
between men are considered a sin.
See Yik Koon, ëMak Nyahs in Malaysia, the Influence of Culture and
Religion on Their Identityí,
Malaysian Northern University, research paper presented at the Fourth
International Congress on Cross-Dressing, Sex and Gender Issues, Philadelphia,
October 5-8, 2000. According
to the author, non-Muslim mak nyahs are at less risk of apprehension by the authorities
due to the fact that there is no official religious ruling to bind their
behavior, as there is with Muslims.
[18] See Yik Koon,
op. cit. The study reported that
of the 507 ìmak nyahî surveyed, 55% and 28% reported that they had
been apprehended by the police and the Islamic religious authority
respectively. The most common
offense charged was cross-dressing.
[19] In 2000 the deputy prime minister was
arrested as a ësodomistí and subsequently tortured. Two years before, the acting chairman
of ëPeopleís Voluntary Anti-Homosexual Movementí (PASRAH) (created by
supporters of the prime minister), declared: ëthese homosexuals or sodomites
have begun to threaten the stability of Malaysian societyí.
[20] Unless otherwise stated the Information
below is summarised from High Court of Australia (2002), Minister for
Immigration & Multicultural Affairs v Khamar [2002] HCA 14, 11 April 2002 at www.lexisnexis.com.au/aus/products/high-court/200201536.htm;
and from Federal Court of Australia (2000), Minister For Immigration &
Multicultural Affairs v Khawar [2000] FCA 1130, 23 August 2000, Available at: www.austlii.edu.au/au/cases/cth/federal_ct/2000/1130.html
.
[21] Her husband who had married her ëfor
loveí had been subsequently estranged from his
family for five years.
[22] High Court of Australia (2002), 11 April
2002, op. cit.
[23] Minister
for Immigration and Multicultural Affairs v Khawar & Ors (S128/2001), 1 June 2001,
available at: www.hcourt.gov.au/registry/matters/matters_nov2001.htm
.