Good practices related to LGBTI asylum applicants in Europe

Introduction : In the past few years there have been several developments related to lesbian, gay, bisexual, trans and intersex (LGBTI) asylum seekers in Europe. The Fleeing Homophobia research, a study on policy and practice in 25 European countries, showed huge diversity in the handling of LGBTI asylum claims in the various EU Member States, and identified several challenges: the relevance of laws in the country of origin criminalising consensual same-sex sexual acts or the expression of non-standard sexual or gender identities; the requirement for LGBTI applicants to conceal their sexual orientation or gender identity upon return to the country of origin in order not to “provoke” violence and discrimination; the requirement to seek protection from homo- or transphobic state authorities in the country of origin; the growing trend of rejections based on non-credibility of the sexual orientation or gender identity itself, in many cases based on stereotypes; the problem of late disclosure to the asylum authorities and the increased disbelief that it causes; discrimination and violence faced by LGBTI applicants in reception facilities; the lack of complete and reliable human rights information about LGBTIs in countries of origin.

However, there has been progress over the same period and ILGA-Europe advocated for an improvement of EU legislation, in the frame of the recasting process of three asylum directives: the Qualification Directive (QD), the Asylum Procedures Directive (APD) and the Reception Conditions Directive (RCD).2 Under the Qualification Directive,3 Member States now have an obligation to explicitly recognise not only sexual orientation, but also gender identity, as a reason for persecution which could lead to the granting of international protection. In addition, under the newly adopted Procedures Directive people who conduct asylum interviews should be professionally trained in LGBTI issues. They should also be capable of recognising the need for special procedural guarantees based on applicants’ personal characteristics. The Reception Directive does not include provisions specific to LGBTI applicants, but some of its general provisions do apply to this group. In particular, all forms of violence in accommodation facilities, including gender-based violence, are to be prevented.

Table of contents

Introduction 4
1. National policies and policy guidelines on the handling of LGBTI asylum cases 7
2. Criminalisation 8
2.1. What is at stake? 8
2.2. Criminalisation of same-sex relations is a violation of human rights 8
2.3. EU law’s ambiguities on criminalisation 9
2.4. UNHCR’s position 10
2.5. Good policies and practices on criminalisation at the national level 10
3. Discretion 13
3.1. What is at stake? 13
3.2. EU law ruled out the “discretion requirement” 13
3.3. UNHCR’s position 14
3.4. Good policies and practices on discretion at the national level 15
4. Credibility 20
4.1. What is at stake? 20
4.2. EU law applicable to assessment of sexual orientation and gender identity 21
4.3. UNHCR’s position 22
4.4. Misunderstandings and misleading practices regarding credibility 23
4.5. Good policies and practices on credibility at the national level 25
4.6. NGO/academic proposals for alternatives 26
5. Late disclosure 28
5.1. What is at stake? 28
5.2. The application of EU law to cases of late disclosure 28
5.3. UNHCR’s position 29
5.4. Good policies and practices on late disclosure at the national level 30
6. Internal flight alternative 32
6.1. What is at stake? 32
6.2. UNHCR’s position 32
6.3. Good policies and practices on internal flight alternative at the national level 33
7. Country of Origin Information 35
7.1. What is at stake? 35
7.2. EU law principles on COI 35
7.3. UNHCR’s position 36
7.4. Good policies and practices at the national level 36
8. Interviewers and interpreters 39
8.1. What is at stake? 39
8.2. EU law principles on interviewers and interpreters 39
8.3. UNHCR’s position 40
8.4. Good policies and practices at the national level 40
9. LGBTI sensitivity trainings and special expertise 43
9.1. What is at stake? 43
9.2. An obligation under EU law 43
9.3. UNHCR’s position 44
9.4. Good policies and practices at the national level 44
10. Conditions in reception facilities 47
10.1. What is at stake? 47
10.2. EU law principles on the conditions in reception facilities 47
10.3. Good policies and practices at the national level 48
11. Other good practices 51
Table of Good Practices 55