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2019 | Buch

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LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective

Persecution, Asylum and Integration

herausgegeben von: Arzu Güler, Maryna Shevtsova, Denise Venturi

Verlag: Springer International Publishing

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book addresses the ‘three moments’ in lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers’ and refugees’ efforts to secure protection: The reasons for their flight, the Refugee Status Determination process, and their integration into the host community once they are recognized refugee status.The first part discusses one of the most under-researched areas within the literature devoted to asylum claims based on sexual orientation and gender identity, namely the reasons behind LGBTI persons’ flight. It investigates the motives that drive LGBTI persons to leave their countries of origin and seek sanctuary elsewhere, the actors of persecution, and the status quo of LGBTI rights. Accordingly, an intersectional approach is employed so as to offer a comprehensive picture of how a host of factors beyond sexual orientation/gender identity impact this crucial first stage of LGBTI asylum seekers’ journey.In turn, the second part explores the challenges that LGBTI asylum seekers face during the RSD process in countries of asylum. It first examines these countries’ interpretations and applications of the process in relation to the relevant UNHCR guidelines and questions the challenges including the dominance of Western conceptions and narratives of sexual identity in the asylum procedure, heterogeneous treatment concerning the definition of a particular social group, and the difficulties related to assessing one’s sexual orientation within the asylum procedure. It subsequently addresses the reasons for and potential solutions to these challenges.The last part of the book focuses on the integration of LGBTI refugees into the countries of asylum. It first seeks to identify and describe the protection gaps that LGBTI refugees are currently experiencing, before turning to the reasons and potential remedies for them.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract

During the human history, millions of people have been forced to flee their homes due to a variety of reasons.

Arzu Güler, Maryna Shevtsova, Denise Venturi

Before the Flight: Drivers, Reasons and Actors of Persecution

Frontmatter

Chapter 2. Implementing Hostility and Acceptance: LGBTQ Persecution, Rights, and Mobility in the Context of Western Moral Entrepreneurship

Abstract

Contemporary queer migration is shaped by regional and cultural attitudes toward sexual and gender minorities, a fact that is well known in both academic and activist spheres. Much less is mentioned about the ways that homophobic and discriminatory attitudes came to pervade certain regions, while others became the champions of lesbian, gay, bisexual, transgender and queer (LGBTQ) rights. This chapter employs Becker’s theory of moral entrepreneurship to examine Western influence over gender ideologies and the treatment of sexual and gender minorities across the globe, and seeks to explain why non-Western societies that once accepted sexual and gender minorities are now resistant to Western-led LGBTQ rights movements. Focusing on two case studies of imperials and their relationships with their colonies, the chapter discusses the acceptance of sexual minorities by non-Western societies prior to Western contact, and the ways that imperials controlled gender roles and behavior as an exercise of colonial rule. Next, it discusses how restrictive social and legal policies were retained in non-Western colonies, despite the shift to a more permissive stance in the Western countries themselves. In the postcolonial period, many non-Western societies held the antipathy toward sexual minorities as a way to differentiate themselves and resist Western influence, a theme that continues to appear in today’s landscape of LGBTQ rights and oppression.

Katherine Fox

Chapter 3. A Qualitative Exploration of the Child Abuse Experiences of Sexual and Gender Minority Refugees and Asylees in the United States and Canada

Abstract

Research has shown that lesbian, gay, bisexual, and transgender (LGBT) children are likely to experience chronic victimization and that these experiences correlate with numerous mental health problems. However, there is little understanding of the abuse experiences of LGBT children living in countries where rights for sexual and gender minorities are limited or nonexistent. In this chapter, we explore the child abuse experiences that contribute to LGBT individuals’ decision to flee their countries of origin in search of protection. In addition, we examine the impact of these abuse experiences on their pre-migration mental health. We conducted 26 interviews with individuals who obtained refugee or asylee status in the United States or Canada on the basis of sexual orientation or gender identity. Participants originated from countries in Asia, Africa, the Caribbean, Eastern Europe, Latin America, and the Middle East. We identified the following themes: abuse by parents and caregivers, abuse by peers and school personnel, having nowhere to turn, and dealing with psychological distress. Findings demonstrate that participants experienced severe verbal, physical, and sexual abuse throughout childhood and adolescence and that this abuse occurred at home, in school, and in the community. Furthermore, there were no resources or sources of protection available to them. Participants linked their abuse to subjective experiences of depression, anxiety, and traumatic stress, as well as suicidal ideation and suicide attempts. We provide implications for clinical practice as well as international policies that protect the well-being of children.

Edward J. Alessi, Sarilee Kahn, Sangeeta Chatterji, Dean Manning

Chapter 4. Fleeing Gender: Reasons for Displacement in Pakistan’s Transgender Community

Abstract

Transgender women in Pakistan, or khwaja siras, continue to suffer human rights abuses that cause many to become Internally Displaced Persons, despite legal protections in their favor. The chapter poses a twofold question to explore this inconsistency. Firstly, it draws from illustrative case study research to identify the discrimination that informs transgender perceptions of persecution and forces them from their homes. Based predominantly on qualitative data, it presents a 5-part typology of cumulative forms of discrimination against khwaja siras in terms of family, employment, housing, education, and healthcare. Importantly, police act as key agents of persecution for them, permitting and participating in their oppression. Secondly, this sociolegal study asks how such widespread discrimination against transgender women can persist notwithstanding legal reforms—a problem of social progress failing to result from legal progress. It finds that human rights protections for the transgender population lack actual implementation due to inaccurate legal wording, low level of trust in legal institutions, and generalized social stigma against the LGBTI community. This analysis revealed not only that mainstream social conservatism mitigates enforcement of LGBTI-friendly laws, but also that such conservatism creates an environment in which their persecution qualifies khwaja siras for, but yet impedes their ability to gain, UN protection as refugees at the international level. The empirical data from this research draws heavily on four comparative life histories of khwaja siras, two who gained refugee status and two who did not, which demonstrate the patterns of persecution against the transgender community in Pakistan.

Laine P. Munir

Chapter 5. To Stay or to Go? Decision-Making of LGBTQI Syrians in Mixed Migration Flows

Abstract

Factors that cause Syrians who may define their sexual orientation or gender identity (SOGI) as lesbian, gay, bisexual, trans, queer, intersex or otherwise (LGBTQI) to flee their homes and move onwards from situations of displacement are complex. So strong is the social stigma against LGBTQI persons in Syria, and much of its neighbouring region, that many Syrians who fear persecution based on their SOGI may nonetheless cite other reasons for moving more broadly related to their experience of conflict, discrimination, socio-economic situation or asylum. Recognising that multiple factors impacting displacement and migration decisions can interact at the same time, evolve over time, be different between groups moving in the same flows, or be perceived differently by the communities through which people move, is characteristic of a mixed migration approach to analysing the movement of different individuals and groups along similar routes. In contrast to prevailing binary analyses of migration as either forced or voluntary, this chapter applies a mixed migration lens to examine the complexity of the decisions made by LGBTQI Syrians to leave their country, move onwards towards Europe, or remain displaced in a neighbouring country. In doing so, it argues that policies recognising the complexity of decisions made by Syrian LGBTQI people on the move may better serve their protection needs than policies based on the assumption that their movement is either forced or voluntary.

Alex Odlum

Chapter 6. ‘I’ve got to go somewhere’: Queer Displacement in Northern Central America and Southern Mexico

Abstract

This chapter seeks to understand the complex, damaging contexts that provoke increasing numbers of the lesbian, gay, bisexual, trans and queer population in northern Central America to flee their homes. Through personal accounts of queer mobility in the region, displacement is analysed not as a one-off or exceptional event, but as a constantly shifting process (moving out of place) and condition (being out of place). Queer mobility is seen here in terms of the quest for placement, rather than as movement per se. Continuous negotiations to stay put, to make a place for oneself, were based in disadvantage which often resulted in complex displacements. Displacement in these terms is an intrinsic part of marginal queer experience. While the ruptures associated with these displacements can cause damage, so they can disrupt established oppressions and allow room to re-accommodate one’s personal social location. Yet, since this re-accommodation is the result of complex constellations of marginalised existence, it is fragile, and hard-won gains can be short-lived. In particular, the intersection between gender and sexual transgression, economic and social marginalization, and rampant organized and targeted hate violence all translate into pervasive precarity. The gravity and complexity of the experiences shared here highlight the need to ensure that the growing body of work on queer migration and asylum does not overshadow other spatial and temporal scales of displacement which are a crucial dynamic of the relationship between queer mobility and survival.

Ailsa Winton

Refugee Status Determination Process: States’ Implementation, Heterogeneity, Western Narratives and Sexual Orientation

Frontmatter

Chapter 7. Refugee Status Determination Process for LGBTI Asylum Seekers: (In)Consistencies of States’ Implementations with UNHCR’s Authoritative Guidance

Abstract

The United Nations High Commissioner for Refugees (UNHCR) has been given the duty of supervising the application of international refugee instruments to ensure that states implement them uniformly serving the best interests of asylum seekers and refugees. As part of its supervisory role, UNHCR provides guidance on how to interpret the Refugee Convention and how to conduct the refugee status determination process. Thus, the consistency of states’ interpretation and application of the refugee definition with UNHCR’s authoritative guidance means providing refugee status to people who fulfil the definition of refugee. This chapter focuses on lesbian, gay, bisexual, transgender and intersex (LGBTI) people in need of protection. It identifies persecution, credibility, internal flight alternative and concealment approach as decisive areas for granting or rejecting the asylum applications of LGBTI people and explores the (in)consistencies of states’ interpretation and application of these areas with the UNHCR’s guidelines on international protection, assuming that any inconsistency would mean the need for an enhanced supervisory role. The chapter questions, then, in which area(s) there is a need of enhancing the UNHCR’s supervisory role in the legal process of refugee status determination for LGBTI asylum seekers. By analysing a randomly selected 40 case research sample, the chapter preliminary identifies four inconsistencies and concludes that the UNHCR’s supervisory role needs to be enhanced in three areas: namely persecution (the enforcement requirement of the existing laws), credibility (stereotypes) and the concealment approach.

Arzu Güler

Chapter 8. LGBTI Asylum Applications in Ireland: Status Determination and Barriers to Protection

Abstract

This chapter explores Irish law and policy in respect of lesbian, gay, bisexual, trans, intersex (LGBTI) asylum claims. It investigates the outcomes of LGBTI claims, specifically looking at the growing body of case law within the last 10 or so years from the Irish High Court on the assessment of core elements of asylum claims based on sexual orientation and gender identity such as State protection, persecution, credibility and the assessment of risk on return. Twenty High Court decisions between the years 2006 and 2017 are analysed, in the first instance to determine the extent to which these decisions are compatible with international best practice guidelines. Secondly, the case law is analysed with reference to the impact of the concepts of fair procedures and constitutional justice on the outcome of LGBTI claims, in order to offer guidance to decision makers in the assessment of such claims, and to further inform the ongoing trans-judicial dialogue on the correct approach to assessment of asylum claims based on sexual orientation and gender identity.

Patricia Brazil, Samantha Arnold

Chapter 9. The Membership of a Particular Social Group Ground in LGBTI Asylum Cases Under EU Law and European Case-Law: Just Another Example of Social Group or an Independent Ground?

Abstract

The 1951 Refugee Geneva Convention relating to the Status of Refugees defines the different grounds upon which a person can be recognized as a refugee. However, throughout the years, different reasons of persecution have emerged which were not envisaged by its drafters. Traditionally, these claims have been recognised under the membership of a particular social group ground. This is also the case of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people. When transposing the Qualification Directive 2011/95/EU-recast into their legal systems, some European Union Member States do not explicitly foresee sexual orientation or gender identity as a ground for asylum. This paper aims to analyze what different social group ground approaches exist and what impact these approaches have had on LGBTI asylum cases, as well as to determine the potential role that the interpretation has on them.

Maria Guadalupe Begazo

Chapter 10. Legal Requirements to Prove Asylum Claims Based on Sexual Orientation: A Comparison Between the CJEU and ECtHR Case Law

Abstract

Despite the proposed reform of the Common European Asylum System in 2016, European Union legislation still remains silent on which methods should be used to prove asylum claims based on sexual orientation. The author identifies some problematic cases, in which selected European Union countries face problems with assessing the credibility of lesbian, gay and bisexual asylum seekers. One of them is Czech Republic, where a controversial practice of phallometric tests was recently used to prove homosexuality, although the practice was supposed to be abandoned. The chapter further compares the case-law of the Court of Justice of the European Union with case law of European Court of Human Rights in this area to identify the most common challenges. It aims to question whether the two courts result effective in clarifying which practices are admissible in asylum proceedings and which methods should be prohibited, as they may violate asylum seekers’ basic human rights. The author argues that there are significant contradictions in the judgements of the two courts, which cause problems both to the decision makers and asylum seekers and that it is urgently needed to adopt and implement common European guidelines.

Andrea Mrazova

Chapter 11. Gay and Lesbian Asylum Seekers in the United States: The Interplay of Sexual Orientation Identity Development, Reverse-Covering, and Mental Health

Abstract

Lesbian and gay (LG) identified asylum seekers are caught having to play out both covering and reverse-covering processes in the United States: they first faced the necessity of attempting to cover in their country of origin where they experienced discrimination and persecution if their sexual orientation was known, but when applying for asylum, they must reverse-cover so as to prove their sexual orientation to the immigration judge. This chapter examines the psychological implications of the reverse covering demand on LG asylum seekers, asserting that the immigration judges’ perceived expectation that these individuals be out regarding their sexual orientation identity at the time of the asylum interview can produce negative mental health effects. Findings from a qualitative research study conducted by the author concerning the experiences of 15 LG individuals seeking asylum in the United States due to persecution in their country of origin as a result of their sexual orientation are used to ground this idea. Six recommendations are provided for immigration judges regarding how to avoid perpetuating a reverse-covering demand and consequent potential negative mental health effects by means of improved education on how to conduct better LG-informed interviews.

Kateri Berasi

Chapter 12. “Wherever We Would Go, We Would Be Together” The Challenges for Queer Refugee Couples Claiming Joint Asylum in Canada

Abstract

Scholars note that immigration in North America and Western Europe has been heavily regulated by heteronormative and patriarchal norms which have historically denied immigration to lesbian, gay, bisexual, trans, and queer (LGBTQ) couples. While the research regarding how LGBTQ individuals navigate the immigration process in Canada has increased, there remains little investigation into the asylum experiences of LGBTQ couples who file jointly. This is a serious oversight, as a significant number of asylum claims are joint claims by LGBTQ refugee couples. This chapter questions the reasoning behind the challenges to queer refugee couples’ claims during the migration and asylum process and argues that it is the intersection of gender and sexuality behind the vulnerability of queer asylum claimants both within their countries of origin and when they are seeking asylum. The chapter focuses on narratives of two queer refugee couples who made joint claims in Vancouver, British Columbia. I follow their experiences prior to migrating to Canada through their asylum hearing. Their stories reveal underlying heteronormative and culturally-biased institutional and social barriers LGBTQ refugee couples face in escaping persecution and having both their relationships and need for asylum recognized by the Immigration and Refugee Board of Canada.

Katherine Fobear

Chapter 13. Seeking Protection as a Transgender Refugee Woman: From Honduras and El Salvador to Mexico

Abstract

Criminal violence in El Salvador and Honduras is on the rise, making hundreds of thousands flee. Within this context, lesbian, gay, bisexual, transgender, and intersex persons (LGBTI), in particular transgender women, are a small but highly visible and vulnerable group. Transgender women face pervasive discrimination and violence in their countries of origin in great part due to a dominant patriarchal structure that does not allow them to safely express their gender identity. Thus, transgender women flee north to Mexico seeking international protection. However, even with refugee status, they continue to face overall a deeply hostile transphobic society in Mexico, which limits their possibilities of integration. The research question explored in this chapter is to what extent transgender women fleeing Honduras and El Salvador can openly live their gender identity in Mexico and whether this process of self-emancipation serves as a protection mechanism for them. Through a desk review and individual case studies of transgender women from Honduras and El Salvador, this chapter argues that while extremely high risks follow transgender women through their journey and into their integration in Mexico, transgender refugee women find ways for self-emancipation through openly expressing their gender identity in LGBTI safe spaces. Nevertheless, though it is a key protection mechanism, these important efforts are not enough to overcome systematic and systemic challenges they face such as intersectional transphobia and xenophobia.

María Paula Castañeda Romero, Sofía Cardona Huerta

Granting Refugee Status: Reception, Accommodation, and Integration of (Recognised) LGBTI Refugees

Frontmatter

Chapter 14. Refugee Resettlement: A Protection Tool for LGBTI Refugees

Abstract

Refugee resettlement is an exceptional tool to protect the world’s most vulnerable refugees who, despite having fled their country of origin and receiving recognition as a refugee in the country of asylum, are unable to live in safety or to access human rights. This chapter asks how the United Nations High Commissioner for Refugees (UNHCR) and states can provide protection to vulnerable lesbian, gay, bisexual, transgender, and intersex (LGBTI) refugees and argues that the global resettlement system is an essential tool for their protection. The chapter first discusses the protection needs of LGBTI refugees in their countries of asylum, with a focus on Syrian and Iraqi refugees in Jordan, Lebanon, and Turkey, including ongoing fear of persecution in the country of asylum, lack of state protection, and lack of familial or social support. Second, it examines refugee resettlement as a protection tool offering LGBTI refugees access to protection and human rights. The chapter then narrates the process of refugee resettlement through the United Nations and resettlement states, addresses the limitations that prevent the global resettlement system from protecting more LGBTI refugees, and provides recommendations to UNHCR and governments to improve resettlement as a protection tool.

Betsy L. Fisher

Chapter 15. Enhancing UNHCR Protection for LGBTI Asylum-Seekers and Refugees in Morocco: Reflection and Strategies

Abstract

This chapter suggests that while the United Nations High Commissioner for Refugees (UNHCR) has made great strides in delivering protection services to lesbian, gay, bisexual, transgender, and intersex (LGBTI) asylum-seekers and refugees, room for improvement remains. An illustrative example is Morocco, where laws criminalizing consensual same-sex relationships are rigorously enforced and LGBTI individuals are vulnerable to widespread violence and discrimination. As such, LGBTI asylum-seekers and refugees in Morocco face heightened security risks on account of their sexual orientation or gender identity and expression. Many turn to the UNHCR for protection as well as specialized services to meet their housing, medical, and financial needs, and resettlement. Questioning how UNHCR-Rabat can provide LGBTI asylum-seekers and refugees with meaningful access to its protection services, this chapter begins with an overview of the legal and political context for asylum-seekers and refugees as well as common experiences of LGBTI individuals in Morocco. It then identifies and proposes suggestions for UNHCR to strengthen its policies of confidentiality and non-discrimination towards asylum-seekers and in delivering services to LGBTI persons of concern during registration, working with partner service organizations to identify LGBTI refugees and their specialized needs in terms of housing, healthcare, and financial services. Finally, this chapter reflects on advocacy efforts for increased resettlement of LGBTI refugees if safety for them in Morocco remains illusory. Many of the recommendations in this chapter can also be applied in other countries where LGBTI refugees require improved access to UNHCR’s protection services.

Nicholas Hersh

Chapter 16. “The Atmosphere Is Oppressive”: Investigating the Intersection of Violence with the Cisgender Lesbian, Bisexual, and Queer Women Refugee Community in Nairobi, Kenya

Abstract

Humanitarian agencies are becoming more aware of and sensitised to the concerns of persons with diverse sexual orientations and gender identities. This institutional understanding, however, tends to aggregate the needs of cisgender lesbian, bisexual, and queer (LBQ) (The term “LBQ refugee” in this paper refers to cisgender women, and does not cover women with diverse gender identities. This is explained more in the methodology section.) refugees in protection responses for other queer refugee communities. This homogenises their unique protection profile, and warrants a more nuanced approach to working with members of this group. This chapter explores the living conditions and vulnerabilities of cisgender LBQ refugees who are registered as persons of concern with the United Nations High Commissioner for Refugees Nairobi. Through a qualitative and quantitative framework, it examines particular forms of sexual and gender-based violence that are pronounced throughout the LBQ refugee community in Nairobi; evaluates the effectiveness of interventions by humanitarian agencies that have been harnessed for the protection of these refugees; and discusses ongoing challenges in the relationship between agencies and LBQ persons of concern. By understanding and giving attention to the distinct risks of LBQ refugees through targeted programming, humanitarian agencies can maintain a protection mainstreaming approach while addressing individual vulnerability.

Hester K. V. Moore

Chapter 17. Integration Challenges Faced by Transgender Refugees in Italy

Abstract

This chapter questions the challenges trans refugees encounter when beginning the integration process in Italy. It finds out that both refugee-specific challenges and the challenges valid for transgender persons generally render their integration a complex process. First, the chapter analyses the challenges faced by refugees in the integration process, due to both the lack of an institutional system and a hostile social environment. It then focuses on how the lack of an institutionalised integration process is even more problematic for vulnerable refugees and trans refugees in particular. In the second section, the chapter describes the situation of trans people in Italy, outlining the discrimination problems and drawing parallelisms between the integration challenges faced by refugees and ones faced by trans individuals. The article furthermore analyses a number of challenges faced solely by trans and gender non-conforming refugees. Lastly, a number of recommendations are made to the Italian organisations in order to overcome the lack of institutional help in the integration process.

Emma Bassetti

Chapter 18. Conclusion

Abstract

The last decade has observed an increased interest by scholars in the issue of queer migration: one of the first academic volumes on the topic was published in 2013 (Spijkerboer 2013), with several articles following during the next years (Hersh 2015; Rumbach 2013; Shidlo and Ahola 2013; Türk 2013, etc.).

Arzu Güler, Maryna Shevtsova, Denise Venturi

Titel: LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective
herausgegeben von: Arzu Güler
Maryna Shevtsova
Denise Venturi
Verlag: Springer International Publishing
Electronic ISBN: 978-3-319-91905-8
Print ISBN: 978-3-319-91904-1
DOI: https://doi.org/10.1007/978-3-319-91905-8