(IE doc. #
1/2002)
February 2002
General Evaluation
ILGA-Europe
welcomes the presence of a horizontal anti-discrimination clause in Article 35
of the draft Directive:
‘Member States shall implement the provisions of this Directive without discrimination on the basis of sex, race, nationality, membership of a particular social group, health, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.’
We particularly
support the prohibition of any discrimination on the ground of sexual
orientation in the implementation of this Directive. We believe that such
anti-discrimination clauses are a positive example of mainstreaming equality
norms and we would encourage this practice to be followed throughout EU law and
policy. However, we believe that the non-discrimination clause should be a
non-exhaustive list of grounds, following the example in Article 21(1) of the
Charter of Fundamental Rights. Moreover, we recommend explicit reference to
non-discrimination on grounds of gender identity (i.e. transgender persons).
‘Member States shall implement the provisions of this Directive without discrimination on any ground such as [text deleted] sex, gender identity, race, nationality, membership of a particular social group, health, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.’
Grounds for the award of refugee status
Evidence confirms the continuing existence of widespread persecution of LGBT people in many parts of the world. A report from the Parliamentary Assembly of the Council of Europe in 2000 noted that in 40 states worldwide same-sex relationships between either men or women remain illegal, and that in a further 40 states same-sex relationships between men also remain unlawful.[1]
It is also important to consider that in many cases involving LGBT persons, the persecution arises not only from the actions of State authorities, but also from discrimination and persecution in society generally, combined with the State being either unwilling or unable to protect effectively individuals from such persecution.[2] Amnesty International conclude that ‘much of the violence faced by lesbian and gay people occurs within the community or in the family … this does not absolve the state of responsibility.’[3]
The definition of grounds for the award of refugee status proposed in the Directive is based on that found in the 1951 Geneva Convention: the existence of a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion …’.[4] The Directive clarifies the definition of membership of a social group. Crucially, Article 12(d) states that ‘the concept of social group shall include a group which may be defined by relation to certain fundamental characteristics, such as sexual orientation, age and gender …’. ILGA-Europe strongly welcomes this explicit recognition of sexual orientation as a possible ground of persecution. In the interests of absolute clarity, we propose to add explicit reference to social groups defined by reference to gender identity or health status – for example, persons who are HIV positive or living with AIDS.
Amended Article 12(d)
‘The concept of social group shall include a group which may be defined by relation to certain fundamental characteristics, such as sexual orientation, age and gender, gender identity, health status …’
Article 9(1) of the proposal specifies that the source of persecution can be ‘the State, parties or organisations controlling the State, non-State actors where the State is unable or unwilling to provide effective protection.’[5] Moreover, Article 11(1) defines persecution as also including acts of discrimination, discriminatory laws or the discriminatory implementation of laws.[6] ILGA-Europe firmly supports and endorses the broad approach adopted by the Commission. It very much hopes that the Member States will ensure these aspects of the proposal are fully maintained in order to provide effective protection for those fleeing persecution based on sexual orientation or gender identity.
Subsidiary protection
Article 15 provides for subsidiary protection for individuals who do not qualify for refugee status, but who cannot be returned to their home state ‘owing to a well-founded fear of being subjected to … serious and unjustified harm’. This is defined as including ‘torture or inhuman or degrading treatment or punishment’. ILGA-Europe supports the provision for subsidiary protection mechanisms. Some applications for asylum based on sexual orientation or gender identity persecution fail because whilst there is evidence of widespread social hostility towards LGBT persons, this is regarded as falling short of ‘persecution’. For such individuals, subsidiary protection mechanisms can be an essential alternative source of international protection.
In its explanatory memorandum, the Commission clarifies that the expression ‘unjustified’ harm is designed to cater for ‘circumstances in which a state may be justified in taking measures that cause harm to individuals, such as in the event of a public emergency or national security’.[7] ILGA-Europe is concerned at the potential for ‘national security’ reasons to be interpreted widely. For example, the 52 men arrested in Egypt in summer 2001 and charged with offences linked to alleged homosexuality were tried in state security courts.[8] In order to make it clear that any discriminatory treatment is an unjustified harm, the following amendment is proposed.
Amended
Article 15 – new subparagraph
‘Member States shall grant subsidiary protection to an applicant for international protection who is outside his or her country of origin, and cannot return there owing to a well-founded fear of being subjected to the following serious and unjustified harm: […]
(d) serious
and/or persistent discrimination on any of the grounds mentioned in Article 35.
Family members
Article 6(1) provides that ‘accompanying family members are entitled to the same status as the applicant for international protection’. Therefore, where one family member is awarded refugee status, the other accompanying family members will also be extended that status. This can be essential to ensure the right of other family members to remain within the territory of the receiving state, as well as access to employment, education, social welfare, etc.
Article 2(j) defines family members as:
‘(i) the spouse of the applicant or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples;
(ii) the children of the couple referred to in point (i) or of the applicant alone, on the condition that they are unmarried and dependent and without distinction as to whether they were born in or out of wedlock or adopted;’
ILGA-Europe
firmly opposes this approach. The underlying objective of EU Justice and Home
Affairs Policy is to realise an ‘Area of Freedom, Security and
Justice’. One of the cornerstones of this Area is ‘freedom from
discrimination’.[9]
Nonetheless, this proposal would enshrine in law discrimination against
lesbian, gay, bisexual and transgender persons and their family members. The
basic problem with the current approach is that respect for the fundamental
right to family life (guaranteed for ‘everyone’ in Article 7 of the
Charter of Fundamental Rights) will vary depending on the state in which the
applicant for asylum arrives.
Family members
will only fall within the scope of Article 2(j) where states treat unmarried
couples ‘in a way comparable’ to married couples, either in law or
in practice. Whilst it is difficult to assess exactly to which states this
applies, it can be presumed that the intention is to cover states such as the
Netherlands where same-sex marriage or registered partnership are available.
Therefore, a person awarded refugee status in the Netherlands can also have
this status (and protection) extended to their same-sex partner and any
children of the couple. In contrast, a person awarded refugee status in Spain
will not have this status extended to their same-sex partner, because Spanish
law does not recognise non-marital partnerships as comparable to marital
partnerships.
Taking this
example further, for LGBT refugees in states such as Spain, there is also a
risk that any children in the family may be separated from one of their
parents. If the refugee is the biological parent or legal guardian of any
children, then the children will gain refugee status, whilst the other parent
could be denied this status. Alternatively, if the refugee’s partner is
the biological parent or legal guardian of the children, then the children also
may be denied refugee status. Denial of refugee status could ultimately mean
that the partner and children will be deported. This is arguably contrary to
the UN Convention on the Rights of the Child. Article 9(1) states:
‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child …’
Moreover, the
Convention obliges States to:
‘… respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’[10]
ILGA-Europe also
draws attention to the European Parliament’s 1992 Resolution on the
European Charter of Rights of the Child that opposes any child being subject to
discrimination on the grounds of, inter alia, his or her
parents’ sexual orientation.[11] It is
unacceptable that the protection of the fundamental human rights of refugees
and their family members will vary across the Member States. Moreover, if this
approach is maintained, it will remain an incentive for LGBT asylum applicants
not to apply in the EU state in which they first arrive, but to attempt to
reach other states where their families will be fully recognised.
Amended
Article 2(j)
“Family
members“ means:
‘(i) Irrespective
of sex, the spouse, registered partner or unmarried partner
in a stable relationship of the applicant. In assessing whether a stable
relationship exists, Member States shall consider as evidence of the relationship
factors such as the length of the relationship, previous cohabitation, shared
parental responsibilities and any other means of proof.’
Mainstreaming LGBT issues
We believe the mainstreaming approach to equality norms cannot be confined to the insertion of a non-discrimination clause. On the contrary, equal treatment considerations must permeate the entire body of any legislative proposal. Consultation with all relevant organisations is an essential part of this process. The Commission details some of the groups it consulted on page 3 of its explanatory memorandum. ILGA-Europe is willing to be an active participant in the shaping of EU immigration and asylum policies, however, this requires full information and consultation from the Commission in the future, particularly in advance of the publication of proposals.
Throughout this proposal there are several instances where reference is made to a range of ‘vulnerable’ groups, but without explicit reference to sexual orientation or gender identity. Given the potential for LGBT issues to be overlooked or excluded in the absence of specific mention, we propose the following amendments and clarifications:
Amended
Article 7 (assessment of applications for international protection)
‘In assessing an applicant’s fear of being persecuted or exposed to serious and unjustified harm Member States shall take into account, as a minimum, the following matters: […]
(d) the individual position and personal circumstances of the applicant, including factors such as background, gender, gender identity, sexual orientation, age, health, and disabilities so as to assess the seriousness of persecution or harm. Where the form of persecution is specifically related to gender, gender identity, sexual orientation or being a child, account shall be taken of the fact that persecution, within the meaning of the Geneva Convention, may be effected through sexual violence or other means specific to gender, gender identity, sexual orientation or age;’
Explanation: the Commission note in the explanatory memorandum that sexual violence is a form of persecution that can be targeted specifically at women, depending on the nature of the violence.[12] ILGA-Europe points out that sexual violence is often a frequent source of persecution of LGBT persons and consequently gender identity and sexual orientation must be explicitly included in this subparagraph. For example, Amnesty International identify the case of a Zimbabwean lesbian who was repeatedly raped on order of her parents because they believed this would make her pregnant and ‘correct’ her lesbianism.[13]
The explanatory memorandum also notes here that Guidelines on assessing applications from women or minors should be developed at the national level in consultation with UNHCR. This is an approach that could also be usefully extended to dealing with LGBT applications.
Amended
Article 10 (the internal protection alternative)
‘(2) In examining whether an applicant can be reasonably returned to another part of the country in accordance with paragraph 1, Member States shall have regard to the security, political and social circumstances prevailing in that part of the country, including the respect of human rights, and to the personal circumstances of the applicant, including age, sex, gender identity, sexual orientation, health, family situation and ethnic, cultural and social links.’
Amended
Article 18 (Content of international protection)
‘(3)
When implementing the provisions of this Chapter, Member States shall take into
account the specific situation of persons who have special needs such as:
minors, unaccompanied minors, disabled people, elderly people, lesbian, gay,
bisexual and transgender people, single parents with minor children and
victims of torture or sexual abuse or exploitation and persons suffering from
infirmity, whether mental or physical, and pregnant women. Member States shall
also take into account the specific situation of single women who are subject
to substantial gender or gender identity related discrimination in their
country of origin.’
Article 28
– Unaccompanied minors – new subparagraph (7)
‘(7)
All decisions affecting minors shall be taken in accordance with the best
interests of the child and the UN Convention on the Rights of the Child. There
shall be no discrimination against any child or his or her parents on any
ground such as of sex, gender identity, race, nationality, membership of a
particular social group, health, colour, ethnic or social origin, genetic
characteristics, language, religion or beliefs, political or other opinions,
membership of a national minority, fortune, birth, disabilities, age or sexual
orientation.’
Laws governing
applications for asylum and the award of refugee status impact on lesbians, gay
men, bisexuals and transgender (LGBT) individuals. In particular, where
individuals face persecution because of their sexual orientation or gender
identity, this can be a reason for claiming asylum in another state. However,
many countries – including within the European Union – do not
recognise persecution based on sexual orientation or gender identity as
legitimate grounds for granting refugee status. Moreover, some countries only
grant refugee status where an individual is under threat of persecution from
the state authorities in their country of origin. Yet, sexual orientation and
gender identity persecution can often be a result of general social hostility
and oppression, as well as state-initiated actions.
ILGA-Europe
monitors and evaluates asylum law proposals from the European Union to ensure
that these take account of the particular needs of lesbian, gay, bisexual and
transgender asylum applicants.
This proposal
from the Commission aims to lay down minimum standards on the grounds for
awarding refugee status. It establishes also minimum standards for the award of
subsidiary protection. This is another form of international protection where
persons are not entitled to refugee status, but cannot safely be returned to
their country of origin. Finally, this proposal would also establish rules
relating to the reception and integration of those individuals awarded refugee
status or benefiting from subsidiary protection. Therefore, there are basic
rules regarding the access of refugees and persons benefiting from subsidiary protection
to health care, housing, education, social welfare and the labour market.
This is an
important proposal for LGBT asylum applicants. First, it will determine the
circumstances under which refugee status may be awarded because of persecution
based on sexual orientation or gender identity. Second, certain provisions
apply to the members of a refugee’s family, including unmarried partners.
Finally, LGBT refugees may have particular healthcare or accommodation needs
and these issues fall within the scope of this proposal.
Pursuant to the
Treaty of Amsterdam, Denmark cannot participate in this proposal. The UK and
Ireland may choose to participate in this proposal. The proposal is currently
pending the opinion of the European Parliament. After this is produced, the
Council of Ministers will have to decide whether to adopt the law based on
unanimous agreement.
[1] Council of Europe, Parliamentary Assembly, ‘Situation of gays and lesbians and their partners in respect to asylum and immigration in the Member States of the Council of Europe’ Doc. 8654, 25 February 2000, par. 28.
[2] For example, see the following UK cases: Jain v Secretary of State for the Home Department [2000] Imm AR 76; R (on the application of Ragman) v Special Adjudicator [2000] All ER 1634.
[3] Amnesty International, ‘Crimes of hate, conspiracy of silence – torture and ill-treatment based on sexual identity’ (London: Amnesty International, 2001) 39.
[4] Article 5(1).
[5] Article 9(1).
[6] Article 11(1).
[7] Page 13.
[8] See further, Amnesty International, ‘Egypt: Verdict due in unfair trial of 52 men prosecuted for alleged sexual orientation’, 12 November 2001, AI Index MDE 12/030/2001 - News Service Nr. 197. Available from: http://www.amnesty.org
[9] See Commission, ‘Towards an area of Freedom, Security and Justice’ COM (1998) 459, 5.
[10] Article 2, emphasis added.
[11] [1992] OJ C241/67, par. 8(5).
[12] Page 16.
[13] Amnesty International, above n 3 p. 39.