Irish Refugee Council: An Invisible Social Group – Sexual Minority Asylum Seekers in Ireland

This post is contributed by Samantha Arnold, Policy Assistant at the Irish Refugee Council.

The persecution of sexual minorities (gay, lesbian, bisexual and/or transgender individuals) is not a new phenomenon. However, issues arising with regards to qualification and substantive rights have only recently come to the fore  (see here, here and here)

The Qualification Directive, as well as the Irish Refugee Act 1996, acknowledges the right of sexual minorities to seek asylum (under the social group nexus). However, in relation to the Qualification Directive it is specifically stated that “[s]exual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States…”

Those who suffer from serious harm are also entitled to protection under European Union and Irish law. Under the Qualification Directive, the applicant must establish ‘substantial grounds… for believing’ that a person may suffer serious harm if returned to their country of origin or habitual residence.  This is problematic as it places more of the burden on the applicant rather than a shared responsibility to establish a well-founded fear of persecution (see here)

Sexual minorities face a number of hurdles in proving that they are refugees or in need of subsidiary protection. Sexual minorities may conceal their sexuality or gender identity in order to avoid alienation, arrests, harassment or prosecutions. In practice, decision makers have been looking to make a distinction between persecution and purportedly less serious forms of harm, such as discrimination on the basis of sexual identity (See here). The UNHCR Guidance Note also identified where decision makers argue homosexuals should take reasonable steps to avoid persecution.

Secondly, the European Union Agency for Fundamental Rights Report on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in EU Member States identified issues related to country of origin reports.  Discrimination based on sexual orientation and gender identity is a relatively new field of research.  Accurate figures and reports are not always easy to come by.

Thirdly, applicants face barriers in relation to credibility. Some identities or characteristics are known to be more identifiable, and thus more credible, than others.  Changing sexual preference or bisexuality is often viewed as suspect. Often a person’s past marriage, relationship or family status negatively affects their claim. Similarly, an applicant may fear revealing their identity in the early stages of the application process. When the applicant later reveals their sexual orientation or gender identity, the authorities may see this as discrediting.

Lastly, interviews have been identified as a point of concern.  LGBT asylum seekers may feel intimidated by inappropriately appointed interpreters (those from the same society they fear) and a general lack of information resulting in inappropriate questioning. The Guidance Note highlights the tendency for officials to focus on past sexual acts and relationships rather than the applicant’s identity.

No data can be collated in relation to sexual minority cases as the Refugee Appeals Tribunal decisions archive is not accessible to researchers. Lack of information and training at the official level as well as a lack of procedural transparency has resulted in a gaping hole in the European asylum discourse.  The number of sexual minority applicants is unknown. Jurisprudence or detailed case summaries are inaccessible and qualification success rates are unknown.

The need for a clear and transparent asylum system is evident.  Presently, LGBT protection seekers are invisible in Ireland which has also affected the substantive rights associated with those found in a legal limbo during the asylum process.

Ireland’s responsibility to provide a fair procedure to every applicant has been to the fore on debates surrounding the new Immigration, Residence and Protection Bill 2008.  In order to improve the procedures in place and those that may become law, protection statistics should be made available; frontloading should be made a priority; a reasonable amount of time should be allowed to gather evidence; accuracy of country of origin reports should be improved; interviews should be recorded; and interviews and interpreters should be better trained to deal with sexual minority cases (See here).