LGBT ASYLUM APPLICATION RELIED ON STEREOTYPES .

LGBT ASYLUM APPLICATION RELIED ON STEREOTYPES

Thousands of lesbian, gay, bisexual, trans and intersex (LGBTI) asylum seekers apply for international protection in Europe each year. The European Union and European States have already taken some concrete and positive steps, such as recognising sexual orientation as a persecution ground in Article 10 of the Qualification Directive. Some Member States have also explicitly added gender identity as a persecution ground in their national legislation (Portugal, Spain) or policy documents (Austria, the United Kingdom); the Qualification Directive may well be amended so as to include gender identity. There are cases in which persecuted LGBTI asylum seekers are recognised as refugees, receive subsidiary protection, or are granted another form of protection in Member States of the European Union

VIALATION OF A WELL FOUNDED FEAR OF PERSECUTION 

 On a regular basis, LGBTI asylum seekers are returned to their country of origin because they purportedly can prevent persecution by concealing their identity. This denies, for LGBTI applicants, the fundamental notion which is at the heart of refugee law: if people have a well-founded fear of being persecuted on account of the legitimate exercise of a human right, they are entitled to international protection. To require them to renounce their human rights in order to be ‘protected’ negates the function of such rights. Similarly, LGB asylum applicants are regularly returned to countries where they have a well-founded fear of being imprisoned or sentenced to death for engaging in sexual activities with a person of the same gender. A further example is that serious human rights violations against trans people, occurring on a large scale in many parts of the world, often do not lead to asylum.

HUMAN RIGHT LAW VIALATION 

Reports,  however, shows that there are considerable differences in the way in which European States examine LGBTI asylum applications. As Europe aims at creating a Common European Asylum System with a uniform status, this is highly problematic. The Dublin system, according to which only one EU Member State examines an asylum application, presumes an illusory common standard in the application of refugee law which is sadly lacking. To counter these differences in asylum application treatment, the European Asylum Support Office should give priority to promoting and coordinating the identification and pooling of good practices regarding the examination of lesbian, gay, bisexual, trans and intersex asylum applications.

A second general conclusion which follows from the present comparative study is that on a number of points, European State practice is below the standards required by international and European human rights and refugee law. European practice clearly shows that national authorities in many instances rely on stereotypes when examining LGBTI asylum applications. 

LGBT ASYLUM DECISION BASED ON STEREOTYPES.

For example, legal decisions still frequently rely on the idea that the sexual orientation of an asylum seeker is only to be taken seriously when the applicant has an ‘overwhelming and irreversible’ inner urge to have sex with a person of the same gender. These stereotypes exclude persecuted bisexuals from international protection, in addition to other LGBTI people who do not behave in accordance with the stereotypes used by decision makers. Stereotypes may exclude lesbians who do not behave in a masculine way, non-effeminate gays, and LGBTI applicants who have been married or who have children. Furthermore, the fundamental character of the relevant human rights for LGBTI individuals is frequently denied in the asylum