Author:
Dr. Sacha Hasan
Abstract:
This review examines the
prominent threats facing LGBTQ refugees and asylum seekers being stirred by the
combination of the increasing hostility of UK immigration laws against refugees
and asylum seekers on the one hand, and the uncertainty of LGBTQ rights to
protection due to potential change in the UK commitment to the EU human rights
law after Brexit on the other. This raises an urgency to recognise these groups’
intersectional vulnerability and needs, and their right to protection against
state and non-state prosecutions. This calls for an immediate action to bring
legislative change through increasing awareness, building capacity, and
ensuring representation in the governmental and civic forums working with LGBTQ
refugees and asylum seekers.
Refugee, asylum seeker,
LGBTQ, human right, legislation, Brexit, UK, EU.
Review:
LGBTQ is one of the 9 protected
characteristics under the UK’s Equality Act 2010, which is considered a
significant improvement from the Gender recognition Act 2004, being more
explicit and inclusive to wider SOGI (Sexual Orientation and Gender Identity) community.
However, the UK departure from the EU is posing a prominent threat and
uncertainty to LGBTQ rights in the UK, due to the fact that the EU Law is the
only available justification to include this community in its equality act (Help Refugees, 2019).
On the other hand, the
1951 Refugee Convention recognises a refugee as a person who is unable or
unwilling to return to his or her country of origin because he or she will be
persecuted on the basis of one of five grounds: race, nationality, religion,
political opinion, or membership of a particular social group. In the UK, sexual orientation, gender
identity, and/or sex characteristics is recognised as being a part of a
particular social group in its asylum laws, and therefore, those identified as
LGBTQ are entitled to seek asylum (Home Office, 2021).
Nonetheless, this is routinely
exploited due to the ‘culture of disbelief’ and an ‘impossible burden of proof’
as said by Moira Dustin, who led the UK part of the SOGICA (Sexual Orientation and Gender
Identity Claims of Asylum) four-year project funded by the European
Research Council (ERC) (University of Sussex, 2020).
This sits in a broader picture of The UK Home Office hostile environment
policy announced in 2012, being a part of a strategy of reducing UK immigration
figures.
Combining these facts
raises the fear that future post-Brexit immigration policy may subject asylum
seekers to further scrutiny, while possibly disregarding equality and
non-discrimination rights for LGBTQ, causing LGBTQ refugees to have a
two-dimensional vulnerability: immigration and non-state prosecution status, and LGBTQ+ identity. This
makes it essential to prioritise LGBTQ refugees, especially given the
relatively low number of countries that are both willing and able to protect
LGBTQ persons against such injustices (Vitikainen,
2020). This is a loud call for a commitment to recognising and addressing
intersectionality needs in legislation.
There may
not be a single best approach to drive legislative change, but there may be
several initiatives to provide a safer environment for LGBTQ refugees and
asylum seekers. These are proposed after consulting a variety of resources from
UNHCR (2015), Equality Human rights Commission (2015), Council of Europe
commissioner of human rights (2018), The Scottish Refugee Council (2020), and
Help refugees (2020). It
is important to note that these should be approached simultaneously, as change
here is to be called on all levels of the government, including Whitehall and Parliamentary
select committees.
Brexit negotiations
should pressure the UK government to produce reformed human rights legislation
that ensures the protection of LGBTQ individuals. However, with the hard Brexit
we have arrived at, achieving this has become a real challenge that may involve
collaborative effort form governmental and nongovernmental organisations on
both the national and international levels. This is to address the urgent need
for Immigration Laws in the UK to explicitly recognise a separate
category/ground for well-founded fear of prosecution for LGBTQ asylum seekers. Human
rights lobbying bodies can be only one dimension of this collective effort and
can help put pressure, in particular on the Home Office, to recognise and act
on the authoritative guidance provided by UNHCR. This
latter has rich resources on the state and non-state forms of persecution LGBTQ
persons may experience, including prosecution by the country of asylum
authorities, host communities, family members, and other asylum-seekers and
refugees.
In
addition, research has an important role to play in establishing the evidence base.
Local authorities should engage in further research and knowledge exchange
about how to ensure safe reception conditions, as well as the specific care LGBTQ
refugees and asylum seekers may need. It is beneficial to seek examples and
advice from international good practices of receiving and sheltering LGBTQ
refugees and asylum seekers, such as Berlin’s Model for the Support of LGBTI
Refugees, which includes counselling, training and the provision of a
specific shelter for at-risk LGBTQ asylum seekers (Berlin
State Office for Equal Treatment and against Discrimination, 2016). Another
example is the work of the Organization for Refuge, Asylum & Migration
(ORAM) which is based in San Francisco but works internationally. Their
programs assist with the international process of resettling LGBTI refugees by
building local networks and supportive communities for LGBTI refugees, while
also offering legal representation and assistance (ORAM, 2012; Ruckstuhl,
2016).
It is essential to
provide a practical guide and professional and culturally sensitive training
for all those involved in the asylum-seeking procedure, including
decision-makers, interviewers, and interpreters (whose presence in an interview
can be very unsettling for the asylum seekers), especially in relation to LGBTQ
criminalising laws around the world, religious and cultural pressures, and
stereotyping. In addition, seeking to involve trained LGBTQ individuals in the
determination process of refugee status for LGBTQ asylum seekers can help to
provide more understanding and open-minded decisions. This is to provide
an appropriate, sensitive, and efficient assessment of LGBTQ claims for refugee
status. This is while ensuring that their dignity is upheld throughout the
procedure, where intrusive questioning and physical or psychological tests are
completely abandoned. The Home Office and its partners should make full use of
already available policy documents, procedural guidelines, tools and other
resources on SOGI produced by UNHCR, International
Commission of Jurists, ILGA-Europe,
ORAM, and EASO. Training can be delivered in co-operation with international agencies,
like UNHCR, and civil society organisations that stand for LGBTQ rights (e.g.
LGBT Youth, The refugee Council, Refugee Action).
Raising awareness is an
essential avenue for action. Through organising a successful and positive media
campaign which could use posters, workshops, events, slogans, etc., awareness
in relation to LGBTQ rights and refugees and asylum seekers issues could be
raised across all areas of life in the country, especially in schools and
universities, community and civil society organisations, charity supporting
retailers, and social media providers. This could be done in co-operation with
national and international organisations and agencies that call for LGBTQ
refugee and asylum seekers rights (e.g. LGBT Youth Scotland, The
Scottish Refugee Council, UNHCR, and the Equality and Human
Rights Commission). Such contributions could raise public awareness and
understanding around challenges and difficulties LGBTQ refugees and asylum
seekers may experience in their country of origin and in the countries they
flee to. This would potentially change the voting patterns arriving to a more understanding
and inclusive Parliament that follows the example of MP
Christine Jardine, the Lib Dems’ spokesperson for home affairs, who said: ‘This
Conservative government is letting down every LGBT+ person and every individual
in this country who cares about human rights. We should be leading the campaign
across the world against homophobia and transphobia. Instead, we have a
government that is turning its back and looking the other way’ (The Guardian, 2019). Having said that, it is essential
to ensure representation in Parliamentary select committees from academics
involved in LGBTQ and refugees research and from LGBTQ rights pressure groups
and civil society organisations. This is to arrive at an informed law and
policy making process where LGTBQ refugees and asylum seekers rights are
preserved.
LGBTQ refugees and
asylum seekers are particularly at risk of becoming the victims of the growing
hostile environment for refugees and asylum seekers in the UK coupled with the
uncertainty of post-Brexit availability of protection, allowing the possibility
for catastrophic consequences for their safety and dignity. It is important to understand
that avoiding this threat is a matter of political will. Therefore, working
with international and national partners to train and build the capacity of the
public and governmental organisations to work with LGBTQ refugees and asylum
seekers, using available international
guidance, and increasing the representation of LGBTQ individuals in employment
in governmental and civic forums, have the potential to arrive at a
more tolerant and better equitable government, Whitehall and select committees.
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