Johann Las Gartner wrote "(In)credibly Queer: Sexualy-based Asylum the European Unn" as part of the 2014 Humany Actn Diplomacy and Diversy Fellowship. The rearch say was first published Transatlantic Perspectiv on Diplomacy and Diversy (Humany Actn Prs 2015). The plete book is available for purchase on Amazon. Abstract [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]European untri’ asylum systems are turng non-normative inti to active acplic the perpetuatn of limed Wtern hetero-normative unrstandgs of what means to be queer.[/perfectpullquote] Fally regnised as eligible for refugee stat Europe, asylum seekers fleeg om persecutn on the ground of sexual orientatn rema among the European asylum systems’ most visible nstuents. To be granted asylum, queer refuge need to prove to immigratn thori and judiciari that they are queer, that they fear persecutn on the grounds of their sexualy, and that such fear is well-found. Even more than s of polil, relig or ethnic persecutn, however, the oute of their claims is largely pennt on the existence of ually non-existent evince. By implitn, queer quts for refuge are regard as easily ma and impossible to prove. While the European legal amework has been extendg s vatn for protectn to queer inti, accs to the premis seems to creasgly be rtricted to those who ply wh an expected drs . As the number of queer refuge creas, issu of credibily and stereotypg do too. Queer refuge are ved to prent their selv ways that are easily unrstandable to their adjuditors orr to crease the likelihood of succeedg wh their claims. Hereby, European untri’ asylum systems are turng non-normative inti to active acplic the perpetuatn of limed Wtern hetero-normative unrstandgs of what means to be queer. By reflectg on a limed range of the challeng that queer asylum s pose to the European systems and that the European systems pose to queer asylum seekers, this article seeks to draw attentn to often neglected dividuals who also form part of asylum systems, which prume refuge to be heterosexuals. ‘I Am So Sorry I Was Born Gay. I Wish our Boat had Sunk’ (1) As the stutns of the European Unn (EU) have tedly stggled to transform the agmented asylum polici s area of ‘eedom, secury and jtice’ towards a unified mon asylum system that do more jtice to s name’s ethos, the waters surroundg the old ntent rather silently turned to one of the world’s adlit borrs. (2) Until que recently, Europeans were largely obliv to the humanarian disaster that has been unfoldg at the fortrs’ borrs. The imag of boats the Mederranean, wh humans packed like sard, have bee ponents of the European media landspe too equent to be ignored. The news reports lger: sce the begng of this year alone, almost 100,000 migrants have arrived Italy by sea, wh yet another thoand havg lost their liv attempts to touch European soil. (3) For those who succeed enterg, seekg refuge the EU is often said to equate wh playg the lottery. (4) Asi om notorly unequal distributns, (5) asylum procr still vary largely om one member state to another; both substance and out.[perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]To be granted asylum, queer refuge need to prove to immigratn thori and judiciari that they are queer, that they fear persecutn on the grounds of their sexualy, and that such fear is well-found.[/perfectpullquote] Surely, applyg for safety a unn of natns that lik to pri self on trail-blazg mocratic valu should never be parable or ak to gamblg. When the variabl ‘LGBTQ’ (6) and ‘refugee’ cross, however, when the former the latter, the game dimensns of the European asylum system bee ever more apparent. On the one hand, this is due to the fact that the game queer asylum seekers are required to play is simply one that was not signed for them. (7) On the other hand, queer refuge rry stori of persecutn that take place at the very margs. The margs are not only of the societi they flee om, travel, and arrive . Queer refuge stand also at the margs of migratn and ternatnal velopment rearch, law, policy and practice. Migrants are heterosexuals. Ingraed wh and built around this premise, hetero-centric ameworks lead only very few to qutn how queer migrants engage the system. (8) Almost half a ln asylum applitns were procsed throughout the EU 2013. How many of them were filed on the basis of lovg the wrong kd? How and where are the plac queer refuge who arrive Europe origally ped? What are the experienc of queer refuge on the journeys they embark on after fleeg their homelands? Are queer asylum seekers immigratn tentn relatively more exposed to vlence and abe than heterosexual on, siar to queer prisoners’ fat prisons? [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]Migrants are heterosexuals.[/perfectpullquote] We are left to gus. Primary rearch wh queer refuge is sparse. Based on news reports and some of the rearch that exists on queer refugee law and policy, the followg seeks to draw attentn to a few of the issu queer asylum seekers face Europe and a few of the issu Europe fac wh queer asylum seekers. Queer inti will by fn never be the most central of any of the above-mentned realms, and this article is th no attempt to prent them as such. Precisely for this reason, however, relegatg queer experienc to footnot is difficult to sta. The margs, after all, tend to fe and nfe their re. Md the Gap Sexualy avowedly remas among the most iologilly ght and culturally ntted them ntemporary societi. The days queer rights are makg headl as they never have before. If nothg else, they make apparent the ever-creasg divi between the stanc towards and agast sexual mori. [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]Over 175 ln queer dividuals worldwi are timated to live unr persecutory environments. (9)[/perfectpullquote] Wh the last s me tremendo advanc for the rights of certa queer muni. In many other plac, however, the suatn has drastilly terrated. Over 175 ln queer dividuals worldwi are timated to live unr persecutory environments. (9) In at least 76 jurisdictns, privately engagg sexual terurse wh a person of the same sex is outright crimalised, seven of which is punishable by ath. (10) Though laws and state-sponsored ab tend to target homo- and bisexual men and women, discrimatn agast those who transcend nventnal genr norms is no ls prevalent. Beyond the provisns of natnal statute books, dividuals who do not perform acrdance wh their environments’ soc-cultural master narrativ equently face systematic vlence cludg asslt, rape, torture and murr, and the nial of their basic civil rights. In the ‘better’ s this might jt be limed to discrimatn employment, health and tn. (11) Honour killg mpaigns, blackmail, or rrective rape for lbians are only some of the methods employed around the globe to extermate viant sexuali and inti. (12) In homophobic soc-cultural environments, cints of vlence naturally stay unreported as a rult of ernment officials actg as eher wilful or as reckls acplic. (13) In ntexts like the, impuny for perpetrators is more norm than exceptn. (14) [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]As the list of untri and societi that most recently and most harshly persecute queer inti go on, other parts of the world this last is set to go down history as the beta versn of the Stonewall rts.[/perfectpullquote] Particularly most recent tim, several ernments have opted for the (re)statement of drastic measur to ee their societi om the queer evil. In Ai, for example, Ugandan print Yoweri Meveni earlier this year publicly signed a law ont of numero media reprentativ that impos life prison sentenc for homosexual nduct and the promotn thereof. (15) Though stck down aga the begng of Augt by the Constutnal Court of Uganda, (16) the ernment has promptly filed an appeal, (17) a strong ditn that the law will likely return sooner rather than later. Around the same time, yet much ls overtly, Nigeria passed s Same Sex Marriage (Prohibn) Act. (18) In ntrast to s tle, the statute crimalis any direct or direct ‘public show of same-sex amoro relatnships’ and fore prison sentenc of up to ten years for anyone who ‘supports the registratn, operatn and stenance of gay clubs, societi, anisatns, procsns or meetgs Nigeria’. (19) We wns siar velopments Chad, Ethpia or the Democratic Republic of Congo. (20) Not long ago, Gambian print Yahya Jammeh ved s queer populatn to leave the untry. (21) The stated alternative to the vatn was havg their heads cut off. Six years down the road, the untry’s parliament passed a bill imposg life imprisonment for ‘aggravated homosexualy’. Cameroonian stunts spected to be queer are expelled and hand over to the police for arbrary arrt. (22) In Lebanon, civil society Augt this year warned homosexual men to leave their phone lls unanswered as police forc allegedly arrt members of the muny to subsequently exame text msag an attempt to track down other homosexuals. (23) In Asia, the Indian Supreme Court last year restated sectn 377 of the Penal Co, which outlaws same-sexual relatns and impos prison terms of up to 10 years the world’s largt mocracy. (24) In Malaysia, where 86% of the populatn views homosexual persons as acceptable, (25) school boys intified by their teachers as beg too ‘effemate’ have been sent to anti-gay mps to gui them back to a proper life style. (26) In September 2014, the Indonian provce Aceh passed a law that fore public ng as the penalty for anal sex between men and for the ‘bbg’ of appropriate body parts the se of women. (27) Closer to Europe and spired by Rsia’s famo homosexual propaganda legislatn, (28) the Kyrgyz Parliament is currently the procs of passg a siar bill that crimalis any nduct or statements favour of non-tradnal sexual relatnships. (29) Concerns were raised last month that Belas might soon follow su. (30) Albe subsequently whdrawn, replit of such laws have been troduced the Armenian and Moldavian parliaments last year. (31) [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]Developments on issu around queer rights are on the rise Lat Ameri.[/perfectpullquote] As the list of untri and societi that most recently and most harshly persecute queer inti go on, other parts of the world this last is set to go down history as the beta versn of the Stonewall rts. (32) Though queer rights everywhere rema ‘among the many leftovers of the unfished bs of morn mocraci’, (33) polil and soc-cultural climate change is swiftly on s way. Lat Amerin societi, for example, have often been regard as particularly sued to high levels of stutnalised homo- and transphobia due to the prevalence of relig iology and wispread machismo. And yet, progrsive velopments on issu around queer rights are on the rise. Argenta was not only the first untry the Ameris to ferally troduce same-sex marriage, but was also the first one globally to troduce the most progrsive piece of genr inty legislatn. (34) Marriage or civil unn rights for same-sex upl furthermore exist Brazil, Uguay, Mexi Cy, Colombia and Ecuador. Internatnal news headl at the time of wrg clud Ecuadorian Print Rafael Correa’s bold announcement that the untry is set to regnise the unns of same-sex upl on natnal inty documents. (35) Siarly, socially nservative Chile now has s first openly gay member of the armed forc. (36) Also Cuba, where queer men barely five s ago were among those who paid the hight price for the Cuban learship’s termatn to succeed wh s Revolutn, (37) sex-change operatns are now fund by the state and reasons exist to believe that the untry is not too far om legalisg same-sex unns. (38) In the Uned Stat (US), Print Barack Obama ed a stir the Amerin polil climate 2012 when he followed US-Vice Print Joseph R. Bin Jr.’s lead publicly endorsg same-sex marriage as the first Head of State the history of the untry. (39) Alongsi judiciari and legislatur across the natn droppg their stat’ same-sex marriage bans like rollg domos, the Defense of Marriage Act was 2013 fally led unnstutnal by the US Supreme Court. (40) [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]Out of the eighteen jurisdictns that globally allow for same-sex marriage, eleven are suated Europe, eight of which are member stat of the EU.[/perfectpullquote] In Europe pecially, however, nsirable chang societal attus, laws and polici unr the rabow have emerged recent years. Though away om a queer paradise, (41) progrs is sweepg over many untri. At the Council of Europe level, the European Court of Human Rights’ (ECtHR) readg of the European Conventn on Human Rights (ECHR) as a livg stment has over the urse of the last three s led to drastic legal and societal chang favour of queer rights across the board. (42) Out of the eighteen jurisdictns that globally allow for same-sex marriage, eleven are suated Europe, eight of which are member stat of the EU. (43) Another dozen give same-sex upl the right to engage a civil unn, cludg eply Catholic untri like Malta, which legalised same-sex unns earlier this year. (44) Public thori, state and lol, have across the Unn started to implement a range of iativ to advance queer rights and have lnched actn plans to bat queer discrimatn. The Charter of Fundamental Rights of the EU explicly prohibs discrimatn based on sexual orientatn. (45) Albe only applible to employment, EU law specifilly outlaws discrimatn on the grounds of sexual orientatn all s member stat. (46) In 2012, a Directive was passed that aims at protectg victims of hate crim based on sexual orientatn, genr inty and, for the first time ever mentned any ternatnal legislatn, genr exprsn. (47) The EU Parliament has s own LGBT tergroup, which is the Parliament’s largt and among s most outspoken and active stakeholrs. In 2014, 394 out of 570 Members of the European Parliament adopted a remendatn for a future EU roadmap agast discrimatn on grounds of sexual orientatn and genr inty. (48) The EU Commissn has mandated the EU Agency for Fundamental Rights to llect evince about the suatns of queer people the member stat. Furthermore, has self produced a tailed report on queer discrimatn. (49) Bis several publitns, the EU Agency 2013 furthermore nducted a survey directed at sexual and genr mory members the EU. (50) Fallg short of 100,000 rponnts, reprents one of the most prehensive rearch projects ever nducted on the experienc of and discrimatn agast queer persons worldwi. In short, while the journey remas plete and while the queer rights rerds ntue to differ drastilly om member state to member state, discrimatg agast queer persons is beg creasgly unstaable and unfashnable across the EU. Queer Journeys [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]Ltle is known about the mory of queer refuge who do manage to file asylum applitns based on sexualy refugee-receivg natns.[/perfectpullquote] This ever-creasg separatn between the stanc towards and agast non-nformg sexuali is takg place the ntext of unprecented global populatn movements. (51) Its logil by-product is that mass of queer dividuals flee their home untri the hope for ternatnal protectn ls homo- or transphobic environments. (52) For the majory of queer refuge this hope never translat to realy. As is the se wh more than 80% of all global refuge, reachg their tend statn also remas an illn for most queer on: rather than arrivg acceptg plac, their journeys equently termate neighbourg or trans untri. (53) Often, as for example the s of Egypt, Kenya or Turkey, such plac differ substantially the hostily that is award agast them. (54) While ltle to nothg is known about the experienc of queer refuge both on their journeys and their untri of first asylum, still more perplexg that almost as ltle is known about the mory of queer refuge who do manage to file asylum applitns based on sexualy refugee-receivg natns. In the EU, this was noticed 2009 by the EU Agency for Fundamental Rights one their earlit reports on LGBT persons Europe. (55) Subsequently, an effort to mence fillg the massive rearch gaps, the first prehensive study on queer asylum polici and reali Europe was unrtaken by the Dutch rearchers Sabe Jansen and Thomas Spijkerboer 2011. (56) An effort, which will hopefully spark further enquiry and bate the near future. [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]Queer refugee figur are drastilly on the rise.[/perfectpullquote] Globally, the Organisatn for Refuge, Asylum and Migratn (ORAM) timat that fewer than 2,500 queer refuge a year are acrd protectn, (57) yet neher the Uned Natns High Commissner for Refuge (UNHCR) nor the majory of the 176 terrori that share asylum statistics wh the UNHCR mata statistics or hold any other form of data ncerng this field. (58) Europe is no exceptn. Belgium is the only EU untry that systematilly llects and publish the number of queer asylum applitns. (59) In s se, the overall number of asylum cisns between 2008 and 2012 totalled 67 576, of which 2 992 or 4.43% were based on sexual orientatn or genr inty. (60) Though Norway is often ced to be the send European (yet non-EU) untry that systematilly registers s asylum cisns based on sexual orientatn and genr inty, (61) s data are not officially published. Upon enquiry for this article, the Norwegian Directorate of Immigratn provid s manually unted numbers for the years 2008 to 2013, emphasisg that ‘the numbers are very uncerta’ as ‘manual reports n be both plete and rrect’. (62) Even if not entirely accurate, the absolute valu differ tremendoly om those Belgium: Norway’s first stance asylum cisns between 2008 and 2013 totalled 76 361, of which 170 or 0.22% were based on sexual orientatn or genr inty. (63) Th, if the Belgian average of 4.43% were to be extrapolated to the total number of asylum applints the EU 2013 (435,000), the annual number of queer asylum claims would be around 19,000. (64) If the same were done for the Norwegian average, ntrast, the number would stand at ls than 1,000. (65) This difference mak impossible to lculate reliable timat about the actual numbers of queer refuge enterg or stayg the EU. In relative terms, however, both s strongly support an often-stated assumptn that queer refugee figur are drastilly on the rise. In the se of Belgium, where the number of queer asylum cisns stood at 116 s 2006, the number had more than doubled by 2008, and has creased sharply every sgle year sce, culmatg 1,059 cisns 2012 alone. (66) The relative crease Norway is fact much higher than that of Belgium: pared to 2008, where Norway admistered 3 cisns, the number was up to 11 2011 and stood at 73 2013. (67) Three ma lsons may be taken away om the numbers, or the lack thereof; [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]It impossible to lculate reliable timat about the actual numbers of queer refuge enterg or stayg the EU[/perfectpullquote] (i) Queer inti have started to perate both untri’ refugee systems at exponentially creasg rat. Dpe the differenc the Belgian and Norwegian data, is to be assumed that the Belgian numbers, reprentg the only available for the EU, serve as a better ditor of the wir trends the EU. Even if the real number stands somewhere between Belgium and Norway, this would still signify that thoands of queer refuge are enterg Europe every year; (68) (ii) The fact that the thoands of queer petns are not ptured by 27 out of 28 member stat’ asylum data banks sentially renrs them visible. Invisibily is easily nflatble wh non-existence, which n turn implicly work to legimise omissns by state thori and civil society actors takg up this issue on their agenda; (iii) Data and rearch are need on queer asylum applitns and their regnn rat. EU ernments that do not llect any data on queer asylum seekers, let alone make such data public, impe asylum seekers, practners and the general public om any knowledge of, or the pacy to draw parisons about, the (non-)importance of this migratn, about the trends and velopments there, or about the (un)likelihood of succeedg wh an asylum claim based on queer persecutn. Beyond this problematic, the pertence of data lie more fundamentally mocratic qutns about transparency and EU human rights standards. How, for example, whout the availabily of any such knowledge, would anyone theoretilly or practilly ever be able to hold EU ernments acuntable for the persecutn of [who knows how many] queer refuge that follows after the are quietly beg returned to the ndns they origally ped om [who knows where]? (69) Queer Refuge unr the Law While executiv have no data and policymakers monstrate limed tert, judiciari and legislatur have many ntexts bee rather acquated wh the existence of queer refuge. A herage of WWII, the primary stment for the protectn of all refuge remas the 1951 Conventn Relatg to the Stat of Refuge (hereafter: the Conventn). (70) Geographilly and temporally expand to s current spe by s 1967 New York Protol, (71) there are currently 146 state parti mandated unr ternatnal public law to grant surrogate or substute protectn to refuge. The Conventn f a refugee as a person wh a ‘well-found fear of beg persecuted for reasons of race, relign, natnaly, polil opn, or membership of a particular social group’. (72) In le wh all other ternatnal human rights legislatn that stems om the days the Conventn was drafted, sexualy is not explicly enumerated as a persecutn ground emed servg of protectn. (73) If a person is granted the stat of a refugee acrdance wh the Conventn, she is entled to not face the removal to her untry of orig or rince. (74) [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]The Conventn f a refugee as a person wh a ‘well-found fear of beg persecuted for reasons of race, relign, natnaly, polil opn, or membership of a particular social group’.[/perfectpullquote] Interpretg the Conventn as not enpassg protectn agast queer persecutn was first emed unstaable by the Dutch 1981. (75) Ever sce, sexual orientatn (and, to a lser extent, also genr inty) have creasgly entered the legal asylum vobulary of many refugee-receivg natns. In most ‘Wtern’ untri is now que wily accepted that queer refuge n prima facie nstute members of ‘a particular social group’, thereby fallg wh the amb of the Conventn. (76) (77) (78) Different analys have been followed to f queer refuge to the social group tegory, two of which have domated ternatnal refugee law. One, origally veloped North Amerin jurispnce, (79) se sexual orientatn as an nate and immutable characteristic, buildg on the notn that sexualy is such a fundamental aspect of an dividual that she nnot be required to forsake . (80) A send analysis, veloped Atralian se law, (81) adopts a tt of social perceptns, whereby members of the particular social group meet the thrhold for protectn only if they are uned by a mon characteristic that is perceived as differentiatg them om (and ) their society at large. (82) Both approach have their strengths and weakns, (83) rt on limed assumptns about sexualy, and may often nverge sce groups that are persecuted on the basis of an immutable characteristic are equently also perceived as a distct social group. (84) In the EU, the Court of Jtice of the European Unn (CJEU) November 2013 clarified that sexual mory members fely nstute members of a particular social group for the purpos of the member stat’ asylum procr. (85) It thereby only formalised and fostered a prevly existent nsens on what had already been well reflected the EU, where the 2004 Qualifitn Directive rporated the 1951 Refugee Conventn fn of a refugee to supra-natnally bdg EU law. (86) The Directive, part of an (on-gog) effort to harmonise asylum polici across the Unn, provis that sexual orientatn as well as genr inty (subsequently add 2011) are relevant persecutn grounds. (87) Reflective of the divergent practic across the Unn at the time was passed, lists both approach mentned above as valid nceptualisatns for such a fdg. Seemgly nsistent wh the UNHCR posn on this matter, however, the wordg of the EU Directive suggts that the two approach are to be treated as cumulative requirements (rather than as alternative bas). (88) The recent lg of the CJEU, while articulatg that sexual mory members do share an nate protected characteristic, due to which they ‘mt be regard as formg a particular social group’, (89) has upheld the cumulative readg. The member stat of the EU ntue to be left wh a prerogative to exame whether a queer petner meets the ‘social perceptn’ thrhold the ntext of her se. [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]A queer petner needs to prove their sexualy... and that the untry of their natnaly or rince is unwillg or unable to offer protectn.[/perfectpullquote] While the nsens that queer inti (though notably first and foremost, gay men and lbians) certaly nstute a particular social group is a tremendo movement the right directn, jurispnce on the matter has been and ntu to be extremely nsistent s fns and analys. Especially the s of genr inty claims have spe their practil and legal uniquens often been append to the grounds of genr and sexual orientatn and ntue to be subject of a limed body of jurispnce and scholarship. (90) (91) In sum, after queer inti were for s entirely exclud om protectn unr the Conventn, sce parably recently queer refuge are regnised unr the particular social group tegory. This regnn, however, ‘has only created the ndn for protectg LBGTI applints’. (92) Legally, to be granted refugee stat a queer petner still needs to prove her sexualy, a well-found fear of persecutn on the basis of the aforementned, and that the untry of her natnaly or rince is unwillg or unable to offer protectn. Practilly, evintiary hurdl are prent every sgle of the legal on. The practil hurdl n roughly be seen as fallg to two ma areas. The first one ncerns provg a refugee’s queerns. Qutns of credibily and stereotypg domate this ntext. The send one ncerns evince of queer persecutn her untry of orig. Non-existent answers to qutns that are asked by immigratn officials but few others, domate that one. (In)credibly Queer Credibily is always ‘at the re of the asylum procs’ and most refuge al wh a certa culture of disbelief on the si of immigratn thori. (93) In many s ‘the issue of credibily may be the fulcm of the cisn as to whether the claim succeeds or fails’. (94) An asylum seeker is generally faced wh the burn of provg her claim; she needs to persua the cisn-makers that her qut for refuge is a credible one. For several reasons, this burn be a ltle more burnsome for queer refuge than for others. On s most obv level, beg queer neher wh a membership rd, (95) nor have the queer gen been disvered yet. (96) Th, needg to prove queerns to (hetero-centric) state thori is prone to lead to rather nasty suatns. The crease of such suatns seems to be an unfortunate pann to progrs queer asylum law. Reactnary Proof So how do one go about (dis)provg queerns? In an ial world, one wouldn’t. (97) While the burn of provg an asylum petn rts on the claimant, askg petners to prove what entire horts and s of scientists haven’t que managed to, has led thori to get que actively and passively volved ‘assistg’ queer claimants the procs. Different strategi have been pursued. Reflective of a ntuoly prevalent societal unrstandg that beg queer is mostly about ss and sex (rather than, say, inty and love), a lot of the practic monly employed by state thori build on precisely such ias. [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]Reflective of a ntuoly prevalent societal unrstandg that beg queer is mostly about ss and sex (rather than, say, inty and love), a lot of the practic monly employed by state thori build on precisely such ias.[/perfectpullquote] The Czech thori are probably the most skilled at uncreatively rcg queer inti to penile and vagal reactns. In 2010, emerged that sexual aroal tts (also gog by penile plethysmography and vagal photoplethysmography) reprented a practice ed the first of the new lennium to tt whether purportedly queer asylum seekers were actually queer. (98) Developed the 20th century as a diagnostic tool to assist aversn therapi to cure homosexualy and as an objective method to prove sexual viancy or paraphilia, (99) Czech immigratn officials hooked gay and lbian petners to mach that termed levels of sexual aroal by measurg the asylum seekers’ physil reactns as they were exposed to homo- and heterosexual porn. After the revelatns, the practic were immediately nmned by the EU Agency for Fundamental Rights, the EU Commissn and the UNHCR as vasive, gradg and irrencilable wh European human rights standards. (100) Although the Czech Republic seems to have been an exceptnal se, the same method was applied at least one se by the Slovak thori 2012. (101) Ultimately, takg reurse to such methods reflects on an out-dated and medil unrstandg of homosexualy. (102) In le wh such, many untri across the EU still e psychologists, psychiatrists and sexologists to terme the sexualy of s asylum applints. (103) Notably, even judg have not shied away om askg legal reprentativ which medil evince existed for their claimants to be queer. (104) [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]Vulnerabily may often translate to submissivens, which leads many petners to ‘agree to anythg’ that is asked om them.[/perfectpullquote] Ls physil but equally qutnable, the UK Home Office has earlier this year e unr heavy attacks after a nfintial report leaked, which revealed tails about how s immigratn officials terrogated (vs. terviewed) queer asylum applints. (105) In the hours-long terviews that queer petners unrgo, qutns asked to male applints by officials clud ‘Did you put your penis to x’s backsi?, ‘When x was peratg you, did you have an erectn?’, ‘Did x ejaculate si you?’ or ‘Why did you e a ndom?’. (106) While this has ed particular outcry the UK media, the thori’ e of qutns that rce queer inti to anal or oral peratn are equally mon other EU untri cludg Belgium, the Netherlands, Ireland, Atria and Cyps. (107) More ncerng still is a trend among queer asylum seekers that appears to velop the Uned Kgdom. It has been revealed that queer asylum seekers - as a rult of a climate of creasg disbelief - are directly forced to unrtake extreme steps to crease the likelihood of havg their sexualy believed by immigratn seworkers and the judiciary. (108) Among the are ‘voluntary’ submissns of photographic and vio evince showg them while engagg timate ntact wh persons of the same sex. (109) Asi om the mocratic qutns scenars like the raise, they are above all reflective of the general vulnerabily of asylum seekers. Vulnerabily may often translate to submissivens, which leads many petners to ‘agree to anythg’ that is asked om them, whereby thori, turn, n relatively easily get away wh (directly) mandg such qutnable submissns of evince. (110) Fake till You Make [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]European urts effectively required refuge to play hi and seek wh their persecutors.[/perfectpullquote] A rctn of queer inti to sexual nduct has not been limed to tts and terview qutns. It unrpned ‘discretn reasong’, which at least until last year was wily applied by judiciari across Europe. (111) Implicly rtg on the above ‘social perceptn’ approach, queer asylum seekers were nied refugee stat on the basis of their abily to ‘behave discreetly’ about their non-nformg inty orr to avoid persecutn. (112) Even s where claimants were believed to be queer and to have a well-found fear of facg persecutn, petns were monly rejected on the basis of a ‘reasonably expectable discretn’ regardg their sexual orientatn. (113) Th, those fleeg om persecutn were found to be persecuted before subsequently beg returned to the same persecutory environments, jtified by an argument that they may jt avoid showg publicly the e of their persecutn. Put differently, European urts effectively required refuge to play hi and seek wh their persecutors. Thereby, they played to the persecutors’ hands by imposg on queer asylum seekers ‘the same submissive and pliant behavur’ that ‘the agent of persecutn the untry of origs seeks to achieve by persecutory nduct’. (114) Qutnable light of s moraly and practil nsequenc, the UNHCR has firmly rejected this approach. (115) The prevalence of this reasong serv as evince for the different standards that are applied to s of queer asylum. Its tragedy is ‘that urts advanced this obligatn of behavur modifitn, effect postulatg self-censorship, agast gay applints even as they vigoroly (and appropriately) rejected any parable duty to disguise one’s polil opns or relig nvictns orr to be safe’. (116) Ined, havg mand om refuge to operate their own protectn has for years subverted the entire logic behd the tablishment of a system that grants surrogate protectn. (117) The assumptn prent such reasong is aga a view of queer inty as somethg sexual and behavural, as opposed to nsirg queer inty belongg a highly plex matter tegral to one’s personal inty. An assumptn, which would hardly be applied to heterosexuals. (118) Followg Atralia’s lead, the UK Supreme Court a ntroversial landmark judgment abolished discretn reasong 2010. (119) While sce then also Fland, Swen and Germany followed su one way or another, (120) he CJEU s 2013 lg held that discretn reasong is no longer a valid basis for nyg protectn to queer asylum seekers anywhere the EU. (121) In July 2014, an Advote General of the CJEU furthermore issued an opn that asylum thori should avoid takg reurse to methods that unrme the human digny of queer asylum seekers. (122) The opn emphasis that s like the on scribed above, cludg physilly tsive queer-ttg, timate sex qutns, or sexually explic photographic or vio evince, are vlatn of EU law. (123) Acrdg to the Advote General, statements by asylum seekers about their own self-intifitn mt be the startg pot of credibily asssments. (124) Th, much movement the right directn has very recently been takg place. It remas to be seen, however, what effects the CJEU cisn and the subsequent opn will have on queer asylum jurispnce and policy across those member stat. Commentators have suggted that where discretn reasong ends, cultur of creasgly disbelievg queer applints like to follow. (125) Kylie Concerts and Colourful Cocktails The adjuditor’s inty queer asylum s might often tend to end up beg more cisive than the one of the claimant. (126) Naturally, the European ntext adjuditors and immigratn officials are ually culturally ‘European’, Csian, heterosexual and - the ntext of the legal profsn - largely male. Agast the orthodox premise of law beg an objective tool of adjuditn liberal legal systems, the ntraly of law is always, as a matter of urse, curtailed by the personal experienc, soc-enomic background, culture, race and sexualy of the dividual applyg and terpretg . (127) Especially light of the credibily of an asylum claim beg entirely pennt on the termatn by thori, which ually and naturally exhib a limed unrstandg of both queer and foreign inti (and when taken together, of a sort of double-‘other’), cisn-makers are ntuoly at risk to reach cisns that are disproportnately rmed by their own subjective prenceptns of the (foreign, often non-Csian, queer) subject they adjudite on. Asi om the negative impact this has on the oute of dividual s, terview and urt rooms thereby bee normative nstctn s of a limed set of queer inti which adjuditors em worthy of protectn. (128) More worthy of protectn seem to often be those petners who rrpond to sentialist, Wtern and hetero-normative stereotyp of queer dividuals (or bodi). (129) Asylum jurispnce across Europe is riddled wh s where cisn-makers emed queer men not to be ‘mp’ enough, or queer women not to be ‘butch’ enough. (130) Exampl clu an applint Cyps whose claim failed bee he had not tried to avoid the untry’s ary service, which was found to ntradict ‘gay’ nduct, or a Nigerian woman Hungary whose medil examatn rulted the fdg of her ‘strong feme sexualy’ (i.e. a femy not mascule enough), a factor that hred the posive oute of her qut. (131) Queer asylum seekers are nonted wh assumptns about their own inti and the experienc they have had. Such assumptns logilly rt on ‘Wtern’ hetero-normative and sentialist characterisatns of sexual and genr mori. Lord Roger of the UK Supreme Court serv a tellg illtratn. Givg a ‘trivial example om the Wtern ntext’, his lordship is of the opn that ‘jt as male heterosexuals are ee to enjoy themselv playg gby, drkg beer and talkg about girls wh their mat, so male homosexuals are to be ee to enjoy themselv gog to Kylie ncerts, drkg exotilly loured cktails and talkg about boys wh their straight female mat’. (132) While the Supreme Court judge his seventi has ldable tentns, pots to the trivialy of his exampl, and did state that the same mt apply other societi (‘suggtg that he has some awarens that there are differenc between gay cultur here and there’), (133) such clichéd pictns of queer (or straight) dividuals, irrpective of whether they stem om the hight judicial stance of the Uned Kgdom or immigratn thori all across Europe, are troublome on many levels. The perpetuatn of flawed assumptns by majori about mori is obvly and by self problematic. Mlims aren’t terrorists, foreigners don’t stk, blon women aren’t thick, and queers do love their beers. They are pecially problematic, however, when they are imposed by heterosexual adjuditors on foreign inti legal procs that functn to secure the claimants’ physil and psychologil tegry, namely by providg transnatnal protectn to their ‘different’ inty. Offerg protectn to only those who meet clichéd fns feats the pot of protectg who is persecuted on the grounds of beg different. [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]Queer asylum seekers are thereby required to ‘perform their inti a way that shows they are ‘ place’ among the receivg state’s good gay and lbian cizenry’. (137)[/perfectpullquote] Sexualy and genr inty are not entirely static phenomena. Both relate to plex ternal inty procs and are subject to external fluenc. Among the is culture. Queer inti vary substantially om society to society as culture has an immense impact on how inti are dividually exprsed (or not exprsed). (134) The UNHCR remarks to this end that the experienc of queer persons ‘are strongly fluenced by their cultural, enomic, fay, polil, relig and social environment. The applint’s background may impact the way he or she exprs his or her sexual orientatn and/or genr inty, or may expla the reasons why he or she do not live openly [queer].' (135) By prupposg limed notns of supposedly European homosexualy as part of asylum procs, queer petners are beg ‘mould, through their dividual asylum claims, to a particular, Wtern characterizatn of queer inty’. (136) Queer asylum seekers are thereby required to ‘perform their inti a way that shows they are ‘ place’ among the receivg state’s good gay and lbian cizenry’. (137) Beg place often equat to embodyg the expectatns that immigratn officials have of their own lol and culturally specific queer muni. Among them, for example, is evince of participatn the lol mercial queer scene. To tablish the tthfulns of their queer inty, petners are asked about their experienc , and tails about, lol gay and lbian tablishments. (138) Given the lguistic obstacl, the fancial burns, the stigmatisatn many asylum seekers face their host untri, as well as the impacts of physil and psychologil suffergs a past of persecutn, this is often neher possible nor sired. Common as well is the ttg of supposedly queer Wtern cultural referenc. A Jamain lbian petner the UK, for example, was recently asked as part of her credibily asssment whether she had read Osr Wil. (139) Prev heterosexual relatnships or marriag (cludg forced) are equently and mistakenly ed as evince agast a claimant’s queerns, as are children stemmg om such. Comg-out stori are expected to be provid acrdance wh thori’ pre-nceived unrstandgs of such. Viewed as a pivotal element a queer narrative by many immigratn officials, an expectatn of this kd neglects that the notn of ‘g out’ is a largely Wtern phenomenon that might not even exist, or at least exprs self differently, the cultural settgs of a claimant. Prevalently required is also the evince of timate relatnships wh lol queers, an expectatn that asylum seekers may neher be able nor want to live up to. (140) The list of erroneo stereotypil notns employed by European immigratn and judicial thori to nclu that queer inti aren’t actually queer is non-exhstive. (141) The rults of their employment are vastatg, not least for those petns that are rejected on this basis. [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]The lack of rmatn and evince about the shape of queer persecutn worldwi only fuels the importance of queer refuge’ narrativ their credibily asssment. [/perfectpullquote] Simple, the Bt The personal stori of queer refuge are ually their only evince to support their claim. In part, this is only logil, given that queer dividuals societi that persecute them will as a matter of urse engage ‘queer activi’ the most closeted ways, leavg behd as ltle evince as possible. The lack of rmatn and evince about the shape of queer persecutn worldwi only fuels the importance of queer refuge’ narrativ their credibily asssment. The stereotypil assumptns ma about queer asylum seekers are th equently required to match herently narrated acunts about the petners’ sexual or genr inty, at bt le wh the thori’ expectatns thereof. (142) Given the very nature of queer persecutn, however, an expectatn of herency n both be absurd as well as ill-found. Persons fleeg om persecutn societi g them to nceal their inty for the sake of physil or social survival may exhib a gree of shame, trma and distrs that impes them om offerg entirely herent narrativ. (143) Bis, queer refuge may often have had very limed experience articulatg facts or feelgs about their queer inty as well as about their sex life, another major factor that n work agast them credibily asssments. (144) Increasg cultur of disbelief, arguably ative to creased legal acmodatns of queer refuge (such as their applibily for asylum unr the Conventn or the aboln of discretn reasong), may work to centivise queer asylum seekers to turn away om the plexi of their dividual stori to lean towards prentg simplified, more easily unrstandable, and thereby more stereotypil Wtern versns of their selv. While the UNHCR reports that ‘some applints exaggerate or fabrite their claims based on ept advice or a misguid belief that dog so will help their se’, (145) is qutnable whether European asylum reali would prove such advise or beliefs to be misguid. At the ntrary, light of the above, European immigratn thori implicly ve queer petners to prent themselv acrdance wh ro-centric and hetero-normative ials of queer persons. It seems more plsible that acceptg this vatn creas the likelihood of succeedg wh, rather than hurtg, a claim. Commentg on the US ntext, Sarah Hger’s fdg that ‘an applint mt anticipate and perform certa stereotyp her own applitn as the surt means of gag asylum. In this way, stereotypil scriptns bee the legal tth of what is to be "homosexual" and form the standard to be applied beyond the dividual se’ only support this logic. (146) European asylum systems, along the l of ‘flee, but make sure you wear pk’, seem to be creasgly acceptg of queer refuge, yet unr the unstated ndn that they meet clichéd and unsubstantiated hetero-normative ials of European queer dividuals. Shall this trend ntue and bee the saft avenue to succeed wh a queer asylum claim the EU, s product would be paradoxil: European asylum polici and laws would directly turn non-normative inti persecuted on the basis of their non-normativy to active acplic perpetuatg Wtern flawed normative stereotyp about sexual and genr mori. Moreover, they would hereby aid a morally and culturally qutnable nstctn and promotn of a psdo-universal queer subject that operat on limed Wtern-centric notns of sexualy. (147) Well-found Fears of Fake Sodom? Unrlyg much of the above is the problematic of distguishg between bona fi and fake claims. Wh queer inti beg hard to prove, a fear of ‘dulent’ applitns by thori is not unjtified. It is qutnable though, whether claims such as those of journalist Steve Korver, that ‘posg as a homosexual is the latt trick to get refugee stat or benef om the subsidiary protectn’ or that of the UK judge Marqus of Queensberry, that ‘the real mischief (...) that is likely to be ed by this allowg his appeal is by enuragg a flood of dulent Zimbabwean (and no doubt other) asylum-seekers posg as sodom’ are actually reflective of European asylum trends. (148) The experienc of Brish lawyer Jill Power, who has fend hundreds of queer asylum seekers for the UK Lbian & Gay Immigratn Group, suggt that such claims are hardly staable: ‘Not tellg the tth while providg an -pth, tailed and nsistent story would be difficult for someone to mata over the long perd that we work wh them. It would very quickly be obv to if someone tried to ‘act’ a lbian, gay or trans persona and liftyle and to regularly attend LGBT events for the purpose of embellishg an asylum claim’. (149) Sce neher data that would perm to systematilly evaluate the validy of a fear of dulent queer applitns, nor qualative rearch on such exist, nclns this ntext are hard to reach. Regardg queer asylum petns on the basis of sexual orientatn as easily ma and impossibly disproven is not ill-found. On the flipsi, however, the ntentn that ‘fdgs of the falsy of sexual inty refugee termatns are easy to make and impossible to appeal’ is at least as, if not more, valid. (150) In the UK, for example, NGO fdgs suggt that 98-99% of asylum claims ma by lbian and gay persons om 1999 to 2009 failed, pared to a 73% average of all other grounds. (151) Ltle reason exists to believe that s of genr inty are more succsful, given they are equally hard to prove, except perhaps the s of post-operative transgenr applints. Solutns [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]Instead of qutns about sexual nduct, the mol suggts that queer refuge should be qutned on their feelgs about beg (perceived as) ‘different’ their rpective societi, the stigma that aris out of such, the potential isolatn that follows, and the related harm they have experienced.[/perfectpullquote] Queer asylum s will always be msy, says UK Shadow Immigratn Mister Chris Bryant. (152) The ms referred to is arguably two-fold. Firstly, relat to the fact that the challeng that thori and asylum seekers enunter queer asylum s are to a disproportnately high gree foced on the provisn and subsequent terpretatn of evince, rather than on qutns of law. Sendly, such evince is often not existent. The lack of tangible evince for a claimants’ queerns is somethg law and policy might jt have to accept. Provg sexual orientatn li beyond the means of science, let alone of urts and immigratn thori. Credibily asssments will nohels always be a central part of queer asylum s. Different solutns have been put forward to unter velopments that ph queer petners eher to gradg suatns or that require them to remble hetero-normative Wtern stereotyp of queer inti to crease the likelihood of succeedg wh their claims. Among them are S. Chelvan’s creasgly proment ‘Difference, Stigma, Shame & Harm Mol’, which seeks to overe stereotype reliance by shiftg the foc of credibily asssments to enquiri about the non-heterosexual life experienc of queer claimants. (153) Instead of qutns about sexual nduct, the mol suggts that queer refuge should be qutned on their feelgs about beg (perceived as) ‘different’ their rpective societi, the stigma that aris out of such, the potential isolatn that follows, and the related harm they have experienced. Other mentators regard LGBTQ cultural petency trag for asylum officials to be a worthwhile solutn. (154) Nile LaVlette this ntext rightly not that sce the refugee termatn procs is a guardian system that at s re is about cidg ‘who gets and who do not’, ‘the bt we n hope for is that staff and adjuditors will have the qualifitns and rourc to do the job well’. (155) She th suggts trags on awarens and attus about adjuditors’ own bias and stereotyp, on cross-cultural and queer-sensive skills velopment as well as on knowledge about the foreign cultur and their queer muni. Ouagadougowhat? Such knowledge is pennt on rearch about foreign queer muni and the persecutn thereof. Informatn on the social, polil and legal environments lked to queer experienc wh persecutn is not merely relevant for such trag purpos, however. Its existence is ccial the legal and evintiary ntext of the Conventn’s persecutn requirement, which li at the heart of the fn of a refugee. (156) A claim will only succeed if an asylum seeker is found to have been, or will be upon her return, subjected to such forms of harm that are emed persecutory. While the term self has no universally accepted fn, (157) nsens exists that not all kds of treatment that are unjt, discrimatory or unnstutnal will meet the legal thrhold of persecutn. Rather, the human rights vlatn needs to be particularly grave and of a systemic nature. (158) [perfectpullquote align="right" borrtop="false" ce="" lk="" lor="" class="" size=""]'Google search on the suatn of LGBT persons their untri of orig will likely produce many rults of news reports and blog entri documentg dividual s of persecutn and mistreatment. The challenge is havg asylum cisn-makg bodi accept the documents as credible evince of the suatn on the ground for LGBT dividuals’. (167)[/perfectpullquote] Objective, plete and reliable rmatn on the ndns the plac asylum seekers purport to be fleeg om therefore needs to th be available. Such rmatn is pertent both for petners to support the thenticy of their claims, and for thori to reach their cisns. (159) The Qualifitn Directive stipulat this ntext that cisn-makers need to ‘take to acunt all relevant facts as they relate to the untry of orig’ and to obta ‘precise and up-to-date rmatn’ on the suatn of queer asylum-seekers their untri of orig. (160) EU law furthermore requir member stat to ‘ensure that precise and up-to-date rmatn is obtaed om var sourc (…) as to the general suatn prevailg the untri of orig of applints for asylum’. (161) In other asylum ntexts such rmatn is monly retrieved om ernmental or non-ernmental reports, rearch, and media verage. Systematilly llected and objective documentary evince about queer persecutn is parably srce, however. (162) As such, as no surprise that Jansen and Spijkerboer have intified substantial problems wh the untry ndn rmatn that European immigratn thori currently base their adjuditns on. (163) Wh the exceptn of ls than a handful of untri, thori across the EU maly rely on non-queer specific documentatn and often on media reports. (164) Reliance on the prr is problematic not least bee general human rights related untry reports do not often enpass queer issu. This n mistakenly be, and has been, terpreted as evince that queer persecutn do not occur. (165) Bis beg symptomatic for the margalisatn of queer issu ternatnal velopment rearch, overly relyg on the latter above all enhanc the abily of thori to adjudite acrdance wh their own bias and nceptns, stead of wh the reali of their petners. The untry of orig rmatn gui by ILGA Europe, Europe’s most proment queer rights NGO, implicly illtrat this pot. (166) On s first page is stated that ‘[a] Google search on the suatn of LGBT persons their untri of orig will likely produce many rults of news reports and blog entri documentg dividual s of persecutn and mistreatment. The challenge is havg asylum cisn-makg bodi accept the documents as credible evince of the suatn on the ground for LGBT dividuals’. (167) Asylum lawyer Barbara Wsel, recently speakg at Humboldt Universy, suggts that the challenge li elsewhere: reference to how German immigratn thori go about intifyg the right sourc of rmatn queer asylum claims when ltle rmatn is available, she stat that ‘sometim they make easy for themselv. The first bt article they fd on Google that sus their view of the ndns is the one that will be brought up as valid evince’. (168) [perfectpullquote align="left" borrtop="false" ce="" lk="" lor="" class="" size=""]While no siar s have (yet) been intified the EU, the e of random articl retrieved om Google is not unmon. (170)[/perfectpullquote] Rearch on Atralian se law dit even worst scenars: a number of Atralian tribunals ma e of dub gay travel guis cludg the ‘Spartac Gui’ or ‘’ to evaluate the untry ndns of queer asylum seekers. (169) While no siar s have (yet) been intified the EU, the e of random articl retrieved om Google is not unmon. (170) It is qutnable whether e g such material legal proceedgs of this kd is really rencilable wh the standards of fairns, ntraly and serns that asylum s serve to be judged on. The problematic herent to relyg on agmented documentatn is furthermore unrpned by the fact that that the termatn of whether specific circumstanc amount to persecutn is, aga, ‘highly pennt on how a cisn-maker terprets and weighs the evince’. (171) Arwen Swk to this end rightly not that ‘two asylum judg, makg termatns separated by very small perds of time, will often review ndns for a sgle untry a radilly different fashn’. (172) Though this fdg appli siarly to other judicial ntexts, is pecially prone to arise when, as a rult of a lack of credible documentatn, thori need to reach their judgements on the basis of arbrarily chosen sourc rather than on regnised and substantiated evince. Intertgly, rearch Norwegian se law shows that the majory of queer asylum s were actually rejected pertag to untry of orig rmatn, and not on the basis of negative credibily fdgs. (173) Ser and queer-specific documentatn that is not out-dated, (174) and which vers not jt persecutn of gay men, but also of lbians and transgenr inti, is th extremely ccial to mimise arbrars and maximise fairns and nuance queer asylum cisn-makg. Whout the availabily of such, no substantiated answers n be found to qutns ncerng the extent to which a petner is persecuted, the different levels of persecutn om one place to another wh the same untry, (175) the particulari of the particular social group qutn, or whether the non-enforcement of anti-homosexualy laws n legimately be regard as meang that no persecutn tak place. (176) Nuanced asylum cisn-makg simply requir nuanced unrstandgs about the persecutn of foreign queer inti. Today, such an unrstandg on the si of European thori remas away. Or Wsel’s words: ‘they nnot even pronounce the nam of the pals of the untry, and then they have to ci about the suatns for gays and lbians that untry’. (177) Concln While pronouncg foreign pal nam will always be a tricky, more rearch about the suatn of queer asylum seekers wh the European borrs, and about the persecutn of queer inti outsi of the, are enavours European stat n and need to engage . Not least, sce today’s persecutn of queer inti many parts of the world is to a nsirable extent the product of our European lonial history. (178) It is th difficult to sta the gree to which asylum claims based on sexual orientatn ntue to be severely unr-rearched and obscured throughout the EU. Though legally the suatn for queer refuge Europe has progrsed dramatilly over the last , queer inti are renred visible by 27 out of 28 member stat’ asylum data banks. We are left to gus how many of almost half a ln asylum applitns are based on the grounds of queer persecutn, where queer refuge origate om and what precisely they ped. What we do know, turn, is that credibily issu domate queer asylum procr and that lacks of evince disproportnately burn petners. As a matter of urse, petners’ sexuali are subjective nature and hard to prove. Though whether the fear of persecutn is a genue one is equally subjective, the most objective element of queer asylum claims is the evintiary qutn of persecutn. While this qutn remas only one aspect of queer asylum s, the fact that is per se more provable should and by self make mer creased attentn. Beyond the basic problematic of how thori n adjudite rponsibly on a well-foundns of a fear of persecutn if no knowledge exists about the persecutn the first place, creased European rearch would lead to more nuanced unrstandgs of the specific ntexts that European asylum systems’ subjects are shaped by and are purportedly fleeg om. Wh such an unrstandg, adjuditors would also be ls jtified and nsequently ls likely to engage ill-found attempts to shut the floodgat. Rather than perpetuatg a culture that operat on an ial prumptn that queer asylum seekers are liars and on disproportnate state powers to fe sexualy norms for foreign queer inti, European thori would assist themselv and their claimants by takg the evintiary aspects of persecutn, rather those of sexualy, more serly. This uld leverage at least some of the subjectivi that fuel many elements of queer asylum claims and guarantee fairer rults of queer asylum adjuditns. Simply put, might be time to brg some lour to the European rearch palett. Only by way of creased efforts to pture queer issu on both the ternal European asylum and external ternatnal velopment agenda n the out of queer asylum s bee substantiated and jt. • • • Catn Gartner, Johann Las. "(In)credibly Queer: Sexualy-based Asylum the European Unn." In Transatlantic Perspectiv on Diplomacy and Diversy, eded by Anthony Chase, 39-66. New York: Humany Actn Prs, 2015. Referenc Anonymo Iranian asylum seeker taed on Man Island, Atralia. Quoted : Oliver, Lghland, ‘Gay asylum seekers on Man Island wre of fear of persecutn PNG’, The Guardian Atralia, 24 September 2014. In the last 14 years, almost 40.000 persons have died on migrant rout worldwi, the majory of which tried to get to Europe. See: Tara Brian and Frank Laczko (eds), Fatal Journeys, Trackg Liv Lost durg Migratn (Geneva, Swzerland: Internatnal Organizatn for Migratn, 2014), at 11-12. Uned Natns High Commissner for Refuge (hereafter: UNHCR), UNHCR Central Mederranean Sea Iniative (CMSI) EU Solidary for rcue-at-sea and protectn of refuge and migrants (CMSI Actn Plan, UNHCR Bure for Europe, Updated Versn 22 July 2014); UNHCR, Statistil Yearbook 2012 (12th ed., Geneva, Swzerland: UNHCR, 10 December 2013). See for example: Kris Pollet, Hélène Soups-David and Almaz Teffera, Not There Yet: An NGO Perspective on Challeng to a Fair and Effective Common European Asylum System (Asylum Informatn Database Project, 6 September 2013). Such as, for example, five member stat (Swen, Germany, France, Italy and the Uned Kgdom) acuntg for over 70% of the total of 136.000 posive cisns on asylum applitns. Posive cisns this ntext refer to eher the grant of refugee stat, subsidiary protectn, or thorisatns to stay for humanarian reasons. See for example: Eurostat, Asylum cisns the EU28 (Eurostat News Release 98/2014, 19 June 2014); Eurostat, Asylum applints and first stance cisns on asylum applitns: 2013 (Eurostat Data Foc 03/2014, March 2014). The termology around sexual orientatn and genr inty is subject to much bate. Based on the nvictn that each of the labels is a product of social fictn and that normative mols of inti are by fn acpanied by substantial limatns, the label ‘queer’ will the followg be preferred as an umbrella term for sexuali and genr inti that viate om societal norms their rpective cultural ntexts. Wh an awarens that this term is at least as ntted and do ltle jtice to the plexi herent to cross-cultural and dividual unrstandgs of non-heterosexual sexuali or fluid genr inti, the thor regards ‘queer’ as a more enpassg and fluid term, and th as the lser evil. For the UNHCR fns, see: UNHCR, Guil on Internatnal Protectn No. 9: Claims to Refugee Stat based on Sexual Orientatn and/or Genr Inty wh the ntext of Article 1A(2) of the 1951 Conventn and/or s 1967 Protol relatg to the Stat of Refuge (HCR/GIP/12/09, 23 October 2012), at paras. 8-11. Sharalyn R. Jordan, 'Un/Conventnal Refuge: Contextualisg the acunts of refuge facg homophobic and transphobic persecutn', 26(2) Refuge (2009), at 166. See: Ehne Luibhéid, ‘Queer/Migratn: An Unly Body of Scholarship’, 14(2-3) A Journal of Lbian and Gay Studi (2008), at 169. Organizatn for Refuge, Asylum & Migratn, Openg Doors (ORAM), A Global Survey of NGO Attus Towards LGBTI Refuge and Asylum Seekers (ORAM, June 2012), at 7. Lus Paoli Itaborahy and Jgshu Zhu (eds), State-sponsored Homophobia – A world survey of laws: crimalisatn, protectn and regnn of same-sex love (9th ed., Internatnal Lbian Gay Bisexual Trans and Intersex Associatn, May 2014), at 9. The ath penalty for same-sex terurse is currently imposed by the followg untri: Iran, parts of Nigeria, Sdi Arabia, Somalia, Sudan and Yemen. Uned Natns Human Rights Council (OHCHR), Report of the Uned Natns High Commissner for Human Rights on Discrimatory Laws and Practic and Acts of Vlence agast Individuals based on their Sexual Orientatn and Genr Inty (OHCHR, 17 November 2011). See for example: ibid; Ryan Thoron and Sam Cook (eds), Nowhere to Turn: Blackmail and Extortn of LGBT People Sub-Saharan Ai (New York: Internatnal Lbian Gay Bisexual Trans and Intersex Associatn, 2011); Human Rights Watch, ‘They Want Us Extermated’: Murr, Torture, Sexual Orientatn and Genr Iraq (New York: Human Rights Watch, 2009). OHCHR (2011) above no. 11, at paras. 23, 30. Ibid, at para. 23, 30, 42. The Anti-Homosexualy Act, 2014, signed to law 24 Febary 2014. Available: (all URLs hereafter: last accsed on 29 September 2014). Officially, the law was stck down on the basis of the formaly (rather than substantive) requirement of Article 88 of the 1995 Constutn of Uganda, which prcrib a mimum quom of one-third of Members of Parliament, havg been vlated. Art. 145 of Uganda’s Penal Co, a herage of Brish lonial le, ntu to crimalise ‘rnal knowledge agast the orr of nature’ which n lead to life imprisonment and has the past been employed to prosecute queer dividuals. See: Neela Ghoshal and Maria Burt, ‘Is now Legal to be Gay Uganda?’, Foreign Policy Blog, 7 Augt 2014. Chris Johnston, ‘Uganda holds first pri rally after 'abomable' anti-gay law overturned’, The Guardian, 9 Augt 2014. Same Sex Marriage (Prohibn) Bill, 2011 (SB.05), signed to law 7 January 2014. Available: (Prohibn) Ss. 4(2), 5(2) Same Sex Marriage (Prohibn) Bill, 2011 (SB.05). In September 2014, ernment misters Chad voted on a draft law that would make homosexual relatns punishable wh prison sentenc of up to two years. (See: David Smh, ‘Chad be 37th Ain state to seek ban on homosexualy’, The Guardian, 22 September 2014). In the se of Ethpia, a plan to add homosexual terurse to a list of crim eligible for printial pardons was troduced by the legislature and endorsed by the Council of Misters March 2014. The bill was dropped aga a month later. Neverthels, homosexual terurse Ethpia remas punishable by a 15-year prison sentence. (See: Associated Prs, ‘Ethpian ernment ncels anti-gay rally’, The Guardian, 16 April 2014). In December 2013, a draft bill was troduced to the Congole Natnal Assembly. Not yet public, the bill allegedly ntas 37 articl that crimalise homosexualy and transgenrism. (See: Valérie Bah, ‘DRC Looks to Follow Uganda's Footsteps wh Anti-Gay Bill’, ThkAiPrs, 11 March 2014). Associated Prs Ivory Coast, ‘The Gambia pass bill imposg life sentenc for some homosexual acts’, The Guardian, 9 September 2014. Jill Power : Oreet Ashery, Stayg: Dream, B, Soft Stud and Other Stori (web publitn, 2010), at 9. Available: An announcement was ma by Helem, a lol queer rights NGO, on 26 Augt 2014 on the anisatn’s Facebook page wall. It read: “URGENT ANNOUNCEMENT: Helem has learned that the Hobeich police statn has been arrtg dividuals Beit and gog through their WHATSAPP ntacts. They are summong ntacts om tae based on their WHATSAPP nversatns to go down to the police statn for qutng. If you receive a phone ll DO NOT GO, ll 71 916 146 and Helem reprentativ will stct you on what to do. DO NOT answer unknown numbers and save the Hobeich police statn numbers on your phone so you n regnize them. (…). For further rmatn, see: S.177 reads: ‘Whoever voluntarily has rnal terurse agast the orr of nature wh any man, woman or animal, shall be punished wh imprisonment for life, or wh imprisonment of eher scriptn for term which may extend to ten years, and shall also be liable to fe’. Available: PewRearchCenter, The Global Divi on Homosexualy (PewRearchCenter, 4 June 2013). BBC News Asia-Pacific, ‘Effemate' boys Malaysia sent to 'anti-gay' mp’, BBC, 19 April 2011. Heather Sl, ‘Indonia's Aceh provce pass law punishg gay sex wh public ng’, The Inpennt, 27 September 2014. Signed to law on 29 June 2013, Rsia’s Feral Law ‘On Introducg Amendments to Article 5 of the Feral Law ‘On the Protectn of Children om Informatn Harmful to their Health and Development’ and Miscellaneo Legal Acts of the Rsian Feratn for the Purpose of Protectg Children om Informatn Advotg for a Denial of Tradnal Fay Valu’’ amends two prevly existg child protectn laws by addg rmatn ‘propagandisg non-tradnal sexual relatnships’ to the list of rmatn banned for distributn among children. It furthermore troduc a new admistrative offence of ‘propaganda of non-tradnal sexual relatnships among mors’ the Feratn’s Co of Admistrative Offenc. Available: For an English translatn and analysis of the bill shortly before was passed, see: Article 19, ‘Rsia: Feral laws troducg ban of propaganda of non-tradnal sexual relatnships’ (London, Article 19, June 2013). Available: Hayley Miller, ‘Anti-LGBT “Propaganda” Law Advanc Kyrgyzstan’, Human Rights Campaign Blog, 20 June 2014. Joseph Patrick McCormick, ‘Concerns raised that Belas may enact anti-gay law siar to Rsia’s’, PkNews, 27 July 2014. Human Rights First, Fact Sheet Spread of Rsian-Style Propaganda Laws (Updated versn: 11 Augt 2014). The origs of movements amg their fight for queer rights as a civil rights issue is often traced back to the ‘gay liberatn movement’, born the spontaneo rebelln agast a route police raid at the Stonewall Inn New York June 1969. See for example: Hannah Dee, The Red the Rabow: Sexualy, Socialism & LGBT Liberatn (London: Bookmarks Publitns, 2010), at 7; Annamarie Jagose, Queer Theory - Ee Efühng (2nd ed., Berl: Querverlag GmbH, 2005), at 46; Veronique Mottier, Sexualy: A Very Short Introductn (Oxford: Oxford Universy Prs, 2008), at 100. Ni J. Beger, 'Queer Readgs of Europe: Genr Inty, Sexual Orientatn and the (Im)Potency of Rights Polics at the European Court of Jtice', 9(2) Social & Legal Studi (2000), at 250. In stark ntrast to most genr inty laws across the globe, the Argentian ‘Law of Genr Inty’ requir neher medil diagnosis nor judicial approval for dividuals to change their legal sex. See: Ley Intad Género; Expediente 5259-D-2007. Available: For the ntext of the EU, Denmark September 2014 followed Argenta’s example by passg the first law the EU that allows legal sex chang whout a clil diagnosis. See: Eme Saner, ‘Europe's terrible trans rights rerd: will Denmark's new law spark change?’, The Guardian, 1 September 2014. Agencia Públi Noticias l Ecuador y Suraméri (ANDES), ‘Ecuador tablece o recho nstucnal la unión entre personas l mismo sexo’, ANDES, 23 Augt 2014. BBC News Lat Ameri & Caribbean, ‘Chilean sailor mak history after announcg he is gay’, BBC, 28 Augt 2014. Though acunts and analys of this time differ substantially and are often tated by polil iology, is well tablished that homosexual men Cuba were systematilly persecuted special mps om the late 1950s onwards. Fil Castro 2010 publicly and personally assumed rponsibily for such persecutn an terview wh the Mexin newspaper La Jornada (See: Carmen Lira Saa, ‘Soy el rponsable la persecución a homosexual que hubo en Cuba: Fil Castro’, La Jornada, 31 Augt 2010). While the ratnale behd the persecutn is ls unclear (the Soviet-fluenced notn that homosexuals were outright victims of palism and the embodiment of bourgeoisie existence, thereby standg stark ntrast to the greater munarian and egalarian goal of uny opn and socialist doctre), the exact nature of the persecutn remas ntted. While no Cuban data exists and scholarly rearch is limed to exile’s and foreign visors’ ttimonial acunts, is tertg to note the ntroversial dynamics this episo created terms of queer asylum polici the US, which weled thoands of Cuban homosexuals while s immigratn polici at the time officially exclud homosexuals. For more specifilly on this topic see: Sana Peña, ‘‘Obv’ Gays and the State Gaze: Cuban Gay Visibily and U.S. Immigratn Policy durg the 1980 Mariel Boatlift’, 16(3) Journal of the History of Sexualy 16:3 (2007): 482-513. For more on the Cuban persecutn of homosexual men, see: Lours Arguell and Ruby Rich, ‘Homosexualy, Homophobia, and Revolutn: Not toward an Unrstandg of the Cuban Lbian and Gay Male Experience, Part I’; 9(4) Signs (1984): 683-699; Lours Arguell and Ruby Rich, ‘Homosexualy, Homophobia, and Revolutn: Not toward an Unrstandg of the Cuban Lbian and Gay Male Experience, Part II’, 11(1) Signs (1985): 120-136; E Bejel, Gay Cuban Natn (Chigo: Universy of Chigo Prs, 2001). BBC News Ameris, ‘Cuba to provi ee sex-change’, BBC, 7 June 2008; Agenci, ‘Cuba mulls legalisg gay marriage’, The Telegraph, 11 May 2012. Peter Bak and Jackie Calm, 'Obama Says Same-Sex Marriage Should Be Legal', New York Tim, 9 May 2012. At the time of wrg, same-sex marriage had been legalised through urt verdicts : California (28 June 2013), Connecticut (12 November 2008), Iowa (24 April 2009), Massachetts (17 May 2004), New Jersey (21 October 2013), New Mexi (19 December 2013), Oregon (19 May 2014), Pennsylvania (20 May 2014); through state legislatn : Delaware (1 July 2013), Hawaii (2 December 2013), Illois (1 June 2014), Mnota (1 Augt 2013), New Hampshire (1 January 2010), New York (24 July 2011), Rho Island (1 Augt 2013), Vermont (1 September 2009); and through popular vote: Mae (29 December 2012), Maryland (1 January 2013), Washgton (9 December 2012). Furthermore, pendg appeals existed over a dozen Stat where district urts have emed their legislative prohibns on same-sex marriage as unnstutnal. In 2013, the first ever EU-wi survey directed at LGBT persons was nducted by the EU Agency for Fundamental Rights. Based on the rults of over 93.000 LGBT-intifyg rponnts, almost half said that they had felt personally discrimated agast or harassed on the grounds of sexual orientatn the year precedg the survey. For the rults of the survey see: For their summary see: The ECtHR nsirs the ECHR as a livg stment which is to be terpreted light of prent-day ndns (referred to as ‘the livg stment doctre’ or ‘evolutive approach’), see: E.B. v France [GC] (2008), (43546/02), at 92. Wh this unrstandg, the ECtHR has held, ter alia, that legislatn crimalisg nsensual sexual acts between same-sex adults is breach the ECHR (Dudgeon v Uned Kgdom (1981) 4 EHRR 149), that the age of nsent for homosexual terurse may not legally differ to that of heterosexual one (Sutherland v Uned Kgdom (1997) 24 EHRR CD 89), that homosexual men may not be banned om participatg the natnal ary (Ltig-Prean and Beckett v Uned Kgdom (1999) 31417/96 ECHR 71), that discrimatn based on sexual orientatn is not permissible unr the ECHR (Karner v Atria (2003) 2 FLR 623); that same-sex upl nstute ‘fay’ unr the ECHR (Schalk and Kopf v Atria (2010) 30141/04), or that post-transn transgenr persons have a legal right to get their legal sex changed and nsequently be nferred full (oppose-sex) marriage rights (Goodw v Uned Kgdom (2002) 28957/95 and I v Uned Kgdom (2002) 25680/94). Full marriage rights for same-sex upl at the time of wrg existed : Argenta, Belgium, Brazil, Canada, Denmark, France, Iceland, the Netherlands, New Zealand, Norway, Portugal, Spa, South Ai, Swen, England and Wal (and om 1 October 2014 Stland), Uguay and 19 Stat of the Uned Stat, where a further 8 native tribal jurisdictns issue marriage licens for same-sex upl. Luxembourg will be the 17th untry to troduce same-sex marriage on 1 January 2015. Atria, Belgium, Croatia, Czech Republic, Fland, France, Germany, Hungary, Ireland, Luxembourg, Malta, the Netherlands, Slovenia and the Uned Kgdom. See Art. 21, Charter of Fundamental Rights of the European Unn. European Unn, Directive 2000/78/EC. European Unn, Directive 2012/29/EU. European Unn, Parliament Rolutn 4 Febary 2014, 2013/2183(INI). See: Silvan Agi and Christa Tobler, Trans and Intersex People - Discrimatn on the grounds of sex, genr inty and genr exprsn (Luxembourg: Office for Official Publitns of the European Unn, European Commissn Directorate-General for Jtice, 2012). See: European Unn Agency for Fundamental Rights, EU LGBT Survey. Rults at a glance (Luxembourg: Publitn Office of the European Unn, 2013). For more on the trends of irregular migratn, see: UNHCR, Global Trends 2013 (Geneva: UNHCR, 20 June 2014). The report, published annually to give an overview of the prev year’s refugee movements, mak no mentn of queer refuge any form. See: UNHCR (2012), above no. 6. Nile LaVlette, ‘Overg Problems wh Sexual Mory Refugee Claims: is LGBT Cultural Competency Trag the Solutn?’ : Thomas Spijkerboer (ed.), Fleeg Homophobia. Sexual Orientatn, Genr Inty and Asylum (Preprt Versn 2013), at 5. Available: Jonathan Kalan, ‘The Gray Area of Gay Refuge’, GlobalPost, 1 December 2011; Dunn Breen, The Road to Safety. Strengtheng Protectn for LGBTI Refuge Uganda and Kenya (Human Rights First, 2012); Neil Gngras and Rachel Levan and Amy Slotek, ‘Unsafe Haven: The Secury Challeng Facg LGBT Asylum Seekers and Refuge Turkey, The Fletcher Journal of Human Secury XXIV (2009): 41-61; Corne Ch, ‘Why Ugandan Gays Who Fled To Kenya Still Feel Like They’re In Danger’, Associated Prs/HuffgtonPost, 17 Augt 2014. European Unn Agency for Fundamental Rights, Homophobia and Discrimatn on Grounds of Sexual Orientatn the EU Member Stat Part II - The Social Suatn (Vienna, Updated versn 2009), at 129. Sabe Jansen and Thomas Spijkerboer, Fleeg Homophobia, Asylum Claims Related to Sexual Orientatn and Genr Inty (Vrije Universe Amsterdam, September 2011). Neil Gngras, ‘Risg Numbers of LGBTI Refuge Facg Fight for Survival’, HuffgtonPost, 20 June 2014. For more on UNHCR asylum statistics and terrori, see: UNHCR 2012, above no. 3, at 43-49. While apart om Belgium no other member state of the EU llects data, out-dated timat by natnal thori exist for Swen (where the number 2002 was thought to be around 250 to 300 per year), the Netherlands (approx. 200 per year), and Italy (54 s filed between 2005 and 2007). In a few other untri, non-ernmental anisatns have released timat. In the Uned Kgdom (UK), for example, the UK Lbian & Gay Immigratn Group (UKLIG) stat that 18 men and women were granted asylum based on sexual orientatn 2008, 25 2009, 70 2010, 49 2011 and 55 2012. See: Stig-Åke Petersson, Qutnnaire Swen (submted for Jansen and Spijkerboer’s Fleeg Homophobia Rearch Project, above no. 56), at 2 (available: )); Jansen and Spijkerboer 2011, above no. 54, at 15; Council of Europe, Discrimatn on grounds of sexual orientatn and genr inty Europe (2nd ed., Strasbourg: Council of Europe Publishg, 2011), at 66; Uned Kgdom Lbian & Gay Immigratn Group, Missg the Mark. Decisn makg on Lbian, Gay (Bisexual, Trans and Intersex) Asylum Claims (September 2013), at 9. The numbers of asylum cisns ( brackets: numbers of asylum cisns on sexual orientatn and genr inty) Belgium were the followg for the years 2008 to 2012: 2008: 8.964 (226); 2009: 8.883 (362); 2010: 13.170 (522); 2011: 16.828 (823); 2012: 19.731 (1059). Total 2008 to 2012: 67.576 (2992). The statistics for the year 2008 and 2009 are no longer available on the webse of the Belgium Officer for the Commissner General for Refuge and Statels Persons and were taken om: Jansen and Spijkerboer (2011), above no. 56, at 15. For the years 2010, 2011 and 2012, see: Dirk Van n Bulck (ed.), 2010 Annual Report (Officer for the Commissner General for Refuge and Statels Persons, Bssels, June 2011); Dirk Van n Bulck (ed.), 2011 Annual Report (Officer for the Commissner General for Refuge and Statels Persons, Bssels, June 2012); 2012 Annual Report (Officer for the Commissner General for Refuge and Statels Persons, Bssels, June 2013). At the time of wrg, Belgium has not yet released any statistics for 2013. The data llected by Belgium ver sexual orientatn and genr inty as one tegory, an exact breakdown for each is therefore not possible. See for example: Jansen and Spijkerboer (2011), above no. 56, at 15. Helen Sandal (Senr Advisor, Enhet for statistikk og analyse, Utlendgsdirektoratet), Personal E-Mail Communitn, 27 Augt 2014. The numbers of first stance asylum cisns ( brackets: numbers of asylum cisns on sexual orientatn and genr inty) Norway were the followg for the years 2008 to 2013: 2008: 9.700 (3); 2009: 15.686 (17); 2010: 16.455 (26); 2011: 10.496 (28); 2012: 11.441 (23); 2013: 12.583 (73). There Bergwz-Larsen (Senr Advisor, Kommunikasjonsstaben, Utlendgsdirektoratet), Personal E-mail Communitn 26 Augt 2014; Helen Sandal (Senr Advisor, Enhet for statistikk og analyse, Utlendgsdirektoratet), Personal E-Mail Communitn, 27 Augt 2014. The troubl herent to timat on this data is evinced by ntrastg this number wh Sabe Jansen and Spijkerboer’s extrapolatn that ed an average percentage of 3,58% (based on the Belgian numbers om 2008-2010 only) and a total of 235.900 (number of asylum applitns the EU for the year 2010), rultg an timate of 8.450 queer asylum seekers the EU annually. The real number is likely to lie between Jansen and Spijkerboer’s and the timate provid this article if two assumptns held te: 1) the number of queer refuge has ntued to rise as sharply as was the se for Belgium between 2010 and 2012; 2) the 2013 figure of total asylum applitns the EU is a misleadg basis due to that year’s global polil events, namely most notably a disproportnately large flux of refuge om the Middle East that year. For Spijkerboer and Jansen’s lculatn, see: Spijkerboer and Jansen 2011, above no. 56, at 15. An extrapolatn based on the numbers provid fn. 61 would lead to a total of 957. See above no. 60. For the data for 2006 see: Officer for the Commissner General for Refuge and Statels Persons to the Council of Europe, : Council of Europe 2011, above no. 59, at 65. See above. no. 63. It is also worth notg that the last two years, sce Spijkerboer and Jansen’s rearch 2011, the numbers of 2012 and 2013 have risen at an exponentially higher rate than durg the time their rearch ncerned. While no systematic data or rearch exists on the untri of origs of queer asylum seekers the EU, the qualative qutnnair provid by natnal experts for Jansen’s and Spijkerboer’s Fleeg Homophobia project (above no. 56) suggts that queer refuge origate om untri cludg: Afghanistan, Albania, Algeria, Angola, Armenia, Azerbaijan, Banglash, Barbados, Belas, Bolivia, Bosnia-Herzea, Brazil, Bundi, Cameroon, Central Ain Republic, Chile, Cha, Colombia, Congo (DRC), Costa Ri, Croatia*, Cuba, Domi, Ecuador, Egypt, Errea, Estonia*, Ethpia, Gambia, Geia, Ghana, Guatemala, Guea-Conakry, Guyana, Honduras, India, Indonia, Iran, Iraq, Israel, Ivory Coast, Jamai, Jordan, Kazakhstan, Kenya, Kosovo, Lebanon, Liberia, Libya, Lhuania*, Macedonia, Malawi, Malaysia, Mali, Mrania, Mri, Mexi, Moldova, Mongolia, Moroc, Nepal, Niragua, Niger, Nigeria, Pakistan, Palte, Panama, Paraguay, Pe, Philipp, Qatar, Romania*, Rsia, Rwanda, Sdi Arabia, Senegal, Serbia, Sierra Leone, Slovakia*, Somalia, South Ai, Sri Lanka, St. Vcent & the Grenad, Sudan, Syria, Tajikistan, Tanzania, Thailand, Togo, Tridad & Tobago, Tunisia, Turkey, Turkmenistan, Uganda, Ukrae, Uned Arab Emirat, Uned Stat, Uzbekistan, Venezuela, Vietnam, Yemen, Yugoslavia (FRY), Zambia, Zimbabwe (untri now member of the EU are marked wh an asterisk). See: Jansen and Spijkerboer (2011), above no. 56, at fn. 23. Uned Natns Conventn Relatg to the Stat of Refuge, 1989 U.N.T.S. 150, 28 July 1951 (entry to force: 22 April 1954). Protol Relatg to the Stat of Refuge, 606 U.N.T.S. 267, 16 December 1967. UN Conventn, above no. 70, Article 1A(2). While such implic excln of queer bodi and sexuali is ually explaed on the basis of such legislatn’s historil ntext, is difficult to jtify view to the (monly neglected) systematic persecutn also of queer persons durg the holot. See for example: Günter Gr and Cldia Shoppmann (eds), The Hidn Holot?: Gay and Lbian Persecutn Germany 1933-45 (3rd ed., London: Routledge, 1995); UNHCR, ‘Summary Conclns: Asylum-Seekers and Refuge Seekg Protectn on Acunt of their Sexual Orientatn and Genr Inty’ (Geneva: UNHCR Expert Roundtable, November 2010), at para. 3. UN Conventn, above no. 68, Article 33(1): Prciple of non-refoulement. Netherlands / Aflg Rechtspraak Raad van State No. A-2.1113, RV 1981, 5. Available: Among the most fluential s that led up to this acceptance, see: Atralia: Applint A and Another v. Mister for Immigratn and Ethnic Affairs and Another, (1997) 190 CLR 225; Canada: (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada: Supreme Court, 30 June 1993; New Zealand: Re G.J., New Zealand Refugee Stat Appeals Authory (RSAA), Refugee Appeal No. 1312/93, 1 NLR 387, 1995; Uned Kgdom: Islam v. Secretary of State for the Home Department Immigratn Appeal Tribunal and Another, Ex Parte Shah, R v. [1999] UKHL 20; [1999] 2 AC 629; [1999] 2 All ER 545 (25 March 1999); Uned Stat: Matter of Asta, A-24159781, Uned Stat Board of Immigratn Appeals, 1 March 1985. Though membership of a particular group has emerged as the most relevant legal basis for acmodatg queer claims, the grounds relign and polil opn have across jurisdictns also served as legal bas (See for example: UNHCR 2012, above no. 6, at para. 40ff; Erik Ramanathan, ‘Queer Cas: A Comparative Analysis of Global Sexual Orientatn-Based Asylum Jurispnce’, Geetown Immigratn Law Journal (1996): 5-7; Kristen L. Walker, ‘Sexualy and Refugee Stat Atralia’, 12(2) Internatnal Journal of Refugee Law (2000), at 178-79). For a judicial example of an asylum claim where sexual orientatn was found to nstute a polil opn, see: Bunsverwaltungsgericht, Urteil vom 15.03.1988, BVerwG 9 C 278.86, Germany. The UNCHR first alt wh the eligibily of ‘homosexuals’ 1996, followed by the Council of Europe 2000. See: UNHCR, ‘Protectg Refuge: Qutns and Answers’ (UNHCR/PI/Q&A‐UK1.PM5/Feb.1996); Council of Europe, Remendatn 1470 (2000) on Suatn of Gays and Lbians and their Partners Rpect of Asylum and Immigratn the Members of the Council of Europe (30 June 2000), 1470. The UNHCR published s first guidance note for this ntext 2008 (See: UNHCR (2008), above no. 6). Origally veloped the Uned Stat se Asta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), subsequently reaffirmed In re Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA. 1990). The Canadian Supreme Court followed a siar approach : Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. UNHCR, Guil on Internatnal Protectn No. 2: “Membership of a Particular Social Group” Wh the Context of Article 1A(2) of the 1951 Conventn and/or s 1967 Protol Relatg to the Stat of Refuge’ (UNHCR, HCR/GIP/02/02, 7 May 2002), at para. 6. Applint A and Another v. Mister for Immigratn and Ethnic Affairs and Another, (1997) 190 CLR 225. UNHCR (2002), above no. 80, at para. 7. The immutable characteristics approach operat on the wobbly prumptn that ‘sexual orientatn [is] fixed, nsistently takg the same form and followg the same narrative of persecutn across society and across cultur’, thereby neglectg both the fluidy of sexualy as well as the impact cultural differenc n have on such (Sarah Hger, ‘Fdg the Fundamental: Shapg Inty Genr and Sexual Orientatn based Asylum Claims’, 19 Colombia Journal of Genr & Law (2010)). This impact is particularly relevant the ntext of immigratn thori refugee-receivg natns adjuditg on (their unrstandg of) foreign inti and sexuali. In ntrast to the social perceptn approach, however, nceptualisg sexualy as beg immutable plac ls emphasis on external perceptns and behavural patterns that are emed associable wh such inti. Emphasisg the external over the ternal easily leads to several troubl: n directly mand a higher level of prove (sce observatns lend themselv to be provable, ntrast to immutable inty characteristics which nnot be proven the first place), may punish non-normative queer behavur as such would be harr to be emed regnisable by a uned difference, and may give rise to adjuditors focg on the social visibily of the dividual claimant rather than of the group the claimant purports to be a member of. For more on the issu see for example: Fadi Hanna, ‘Punishg Masculy Gay Asylum Claims’, 114(4) The Yale Law Journal (2005): 913-920 (mentg on US se law this ntext); Fatma E. Marouf, ‘The Emergg Importance of ‘Social Visibily’ Defg ‘A Particular Social Group’ and Its Potential Impact on Asylum Claims Related to Sexual Orientatn and Genr’, 27(1) Yale Law & Policy Review (2008): 47-106 (discsg the problematic of a social visibily requirement the US ntext). UNHCR (2002), above no. 80, at para. 9. Joed Cas C-199 to C-201/12, Mister voor Immigratie en Asiel v. X (C-199/12) and Y (C-200/12) and Z v. Mister voor Immigratie en Asiel (C-201/12), Judgment of the Court (Fourth Chamber) of 7 November 2013. Acrdg to the EU Agency for Fundamental Rights, at least 22 member stat of the EU moreover explicly ver ‘sexual orientatn’ as a persecutn ground their natnal asylum legislatn. In their report, no siar fdg is ma for the ground of genr inty. See: European Unn Agency for Fundamental Rights, Homophobia, transphobia and discrimatn on grounds of sexual orientatn and genr inty (Luxembourg: Publitns Office of the European Unn, 2010 Update), at 55. EU Directive 2004/83, O.J. 2004, L 304/12 and EU Directive 2011/95, O.J. 2011, L 337/9. See Article 10(1)(d), which stat that ‘pendg on the circumstanc the untry of orig, a particular social group might clu a group based on a mon characteristic of sexual orientatn. (…) Genr related aspects, cludg genr inty, shall be given due nsiratn for the purpos of termg membership of a particular social group or intifyg a characteristic of such a group’. See: UNHCR (2002), above no. 78, at 11; Maarten n Heijer, ‘Persecutn for reason of sexual orientatn: X, Y and Z’, 51 Common Market Law Review (2014): 1217-1234. Above no. 85, at paras 48-49. See for example UK Supreme Court judge Lord Roger’s statement: ‘the Conventn offers protectn to gay and lbian people — and, I would add, bisexuals and everyone else on a broad spectm of sexual behavur— bee they are entled to have the same eedom om fear of persecutn as their straight unterpart’ (: HJ and HT [2010] 3 WLR 386, 418 [76], at 350). For a valid crique of the flaws and problems herent to appendg transgenr s to those of sexual orientatn, see: Ellen A. Jenks, ‘Takg the Square Peg Out of the Round Hole: Addrsg the Misclassifitn of Transgenred Asylum Seekers’, 40(1) Goln Gate Universy Law Review (2009): 67-96. See: Lrie Berg and Jenni Millbank, ‘Developg a Jurispnce of Transgenr Particular Social Group’, 2013(1) UTS Legal Studi Rearch Paper Seri (2013). For particular social group se law on transgenr persons, see for example: M B, Commissn s Reurs s Réfugiés (CRR), French Refuge Appeal Board, 496775, 15 Febary 2005, where an Algerian transgenr person was regnised by a French urt to nstute a member of a particular social group. Sabe Jansen, ‘Introductn. Fleeg homophobia, asylum claims related to sexual orientatn and genr inty Europe’, : Thomas Spijkerboer (ed.), Fleeg Homophobia: Sexual Orientatn, Genr Inty and Asylum (Oxon: Routledge, 2013), at 1. C. Blake, ‘Judgg Asylum and Immigratn Claims: The Human Rights Act and the Refugee Conventn’, Public Money & Management 21/3 (2001) pp. 25, 27, quoted : Robert Thomas, ‘Asssg the Credibily of Asylum Claims: EU and UK Approach Examed’, 8 European Journal of Migratn and Law 8 (2006), at 79; Barry O'Leary, ‘”We nnot claim any particular knowledge of the ways of homosexuals, still ls of Iranian homosexuals…”: The Particular Problems Facg those who seek asylum on the basis of their sexual inty’, 16 Femist Legal Studi (2008), at 88. SW v Secretary of State for the Home Department (Adjuditors qutns) Somalia [2005] UKIAT0OO37, para. 20. Quoted : Thomas (2006), above, at 79. O’Leary (2008), above no. 93, at 89. Except for the agmented rearch that pops up every now and then, claimg the ntrary before beg disproven aga by subsequent rearch. Establishg sexual orientatn (and genr inty) should prciple be based on self-intifitn. See, for example, ma remendatn no. 5 Spijkerboer and Jansen (2011), above no. 56, at 11. See also: Prciple 3 of The Yogyakarta Prcipl on the Applitn of Internatnal Human Rights Law Relatn to Sexual Orientatn and Genr Inty, which stat that ‘Each person’s self-fed sexual orientatn and genr inty is tegral to their personaly and is one of the most basic aspects of self-termatn, digny and eedom’. European Unn Agency for Fundamental Rights (2010), above no. 86, at 59-60; BBC Europe, ‘Czech gay asylum 'phallometric tt' cricised by EU’, BBC News, 8 December 2010; Internatnal Lbian, Gay, Bisexual, Trans and Intersex Associatn, Report on implementatn by the Czech Republic of the Remendatn CM/Rec(2010)5 of the Commtee of Misters of the Council of Europe on measur to bat discrimatn on grounds of sexual orientatn or genr inty (4 April 2012); Sabe Jansen, Credibily, or how to asss the sexual orientatn of an asylum seeker? (EDAL Conference 2014: Reflectns on the Current Applitn of the EU Asylum Acquis Workshop Sexual Orientatn, Genr Inty and Human Digny 2014). Available: ; David Kosar, Qutnnaire Czech Republic (submted for Jansen and Spijkerboer’s Fleeg Homophobia Rearch Project, above no. 56), at 19-20. Available: While Czech immigratn thori claim the numbers of s where such tts were employed was limed to ls than a dozen, this remas unproven. The UNHCR claims that the tts were first ed by the Czech thori 2004 to tt the sexuali of Armenian and Sri Lankan applints. Penile phallometry was veloped the 1950s by Kurt Frnd. Several urts the US have rejected the admissibily legal proceedgs of the tool’s rults the 1990s. See: Organizatn for Refuge, Asylum & Migratn, Ttg Sexual Orientatn – A Scientific and Legal Analysis of Phletysmography Asylum & Refugee Stat Proceedg (San Francis: 2010, ORAM), at 4-7. See: UNHCR, UNHCR’s Comments on the Practice of Phallometry the Czech Republic to Determe the Credibily of Asylum Claims based on Persecutn due to Sexual Orientatn (UNHCR Bure for Europe, April 2011); European Unn Agency for Fundamental Rights (2010), above no. 86, at 59. For the ments by Cecilia Malström (European Commissner for Home Affairs) see: ‘Rponse to the parliamentary qutn on phallometric ttg’ (3 March 2011), available: Jansen (2014), above no. 98. Homosexualy was nsired a mental disease the World Health Organisatn’s Internatnal Statistil Classifitn of Diseas and Related Health Problems (ICD) until 1990, but was dropped due to the rults of a body of rearch that provid evince that sexual orientatn was fact no disease. Transgenr inti are still today viewed as sufferg om a medil illns, both by the WHO and the Amerin Psychiatric Associatn (APA). See: Agi and Tobler (2012), above no. 49, at 16. Jansen (2014), above no. 98; Jansen and Spijkerboer (2011), above no. 56, at 49. See also: Derek McGhee, ‘Accsg Homosexualy: Tth, Evince and the Legal Practic for Determg Refugee Stat – The Case of Ioan Vraciu’, 6(1) Body and Society: 29-50, for a crique of a se which the UK Home office required a homosexual applint to unrgo a medil anal examatn to prove his sexual orientatn. O’Leary (2008), above no. 93, at 2006. Aaron Day, ‘Leaked report: UK Home Office ‘terrogat’ LGBT asylum seekers wh gradg qutns’, Pk News, 9 Febary 2014. Diane Taylor and Mark Townsend, ‘Gay asylum seekers face 'huiatn’’, The Observer, 8 Febary 2014. See: Jansen and Spijkerboer (2011), above no. 56, at 55; Jansen (2014), above no. 98. See: S. Chelvan, ‘From Silence to Safety: Protectg the Gay Refugee?’, lecture livered by one of Bra’s leadg barristers at the Law Society of England and Wal on 5 Febary 2013. For a podst of the lecture and s transcriptn, see: ; See also: Home Office Select Commtee, Asylum: Seventh Report of Ssn 2013-14, (Hoe of Commons, 8 October 2013). Home Office Select Commtee, above, at 28; Stt Roberts, ‘Home Office Select Commtee slams ernment on LGBT asylum policy’, Pk News, 11 October 2013. See: Interview wh Kls-Dieter Sohn : Sabra Papst, ‘Sohn: ‘E Asylwerber wür all tun’, Dtsche Welle, 21 July 2014. Discretn reasong has one form or another still found to be ed judgements by urts Atria, Belgium, Bulgaria, Cyps, Denmark, Fland, France, Germany, Hungary, Malta, the Netherlands, Poland, Romania, Spa, Norway and Swzerland. See: Jansen and Spijkerboer (2011), above no. 56, at 33-39. Along l such as: ‘We take the view that the appellant would nduct herself discreetly as a lbian Albania and that would be entirely reasonable the circumstanc to expect her to do so’ (MK v. Secretary of State for the Home Department (MK Lbians) [2009], UKAIT 0036 [405]. Legally, this requirement has urts been settled as a ‘reasonable expectatn that persons should, to the extent that this is possible, -operate their own protectn’ (See for example: 6 RRT Case No. V95/03527, [1998] RRTA 246, Atralian Refugee Review Tribunal, 9 Febary 1996). Refugee Appeal No. 75665/03, New Zealand Refugee Stat Appeals Authory, 2004, para 114. UNHCR (2012), above no. 6, paras 12, 31, 32. Jam C. Hathaway and Jason Pobjoy, ‘Queer s make bad law’, 44(2) New York Universy Journal of Internatnal Law and Polics (2012), at 325. Jenni Millbank, ‘From Discretn to Disbelief: Recent Trends Refugee Determatns on the Basis of Sexual Orientatn Atralia and the Uned Kgdom’ 13(2/3) Internatnal Journal of Human Rights (2009): 391-414. As Lord Roger of the UK Supreme Court has also noted by lg that ‘ [n]o-one would proceed on the basis that a straight man or woman uld fd reasonably tolerable to nceal his or her sexual inty fely to avoid sufferg persecutn’. (HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, UKSC 31 [2010], para 76. Appellant S395/2002 v Mister for Immigratn & Multicultural Affairs (S395) (2003) 216 CLR 473 (Atralia); HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 (Uned Kgdom). For a crique of the refugee law analys employed the UK Supreme Court lg (rather than s oute) see: Jam C. Hathaway and Jason Pobjoy, ‘Queer s make bad law’, 44(2) New York Universy Journal of Internatnal Law and Polics (2012): 315-389, argug that the UK Supreme Court nflated the standards of persecutn mand om ternatnal refugee law wh non-discrimatn norms. For a crique of this crique, see: Jenni Millbank, ‘The Right of Lbians and Gay Men to Live Freely, Openly, and on Equal Terms Is Not Bad Law: A Reply to Hathaway and Pobjoy’, 44 New York Universy Journal of Internatnal Law and Polics (2012): 497-527. In Fland through a judgment of the Supreme Court (Korke Hallto-Oiks, 13 January 2012), Swen through policy l ((Rättschefens rättsliga ställngstagan angåen metod fötredng och prövng av n amåtsyftan risken för personer som åberopar skyddsskälpå gnd av sexuell läggng), 13 January 2011, RCI 03/2011) and Germany through a statement by the German immigratn thory (Letter om Bunsamt für Migratn und Flüchtlge, BAMF, to Member of Parliament Volker Beck, 27 December 2012. Available: ). The Court of Jtice of the European Unn, above no. 85. Opn of Advote General Sharpston, livered on 17 July 2014, Joed Cas C 148/13, C 149/13 and C 150/13. (N.b. Advote General opns are neher bdg on the Court nor on the EU member stat, but may impact future CJEU cisns). The Advote General regards sexual aroal tts as vlatg Art. 3 (Right to Integry of the Person) and Art. 7 (Rpect for Private Life); qutns ncerng claimants’ sex life as disproportate wh the meang of Art. 52(1) (Prciple of Proportnaly); and vio or photographic evince as ntrary to Art. 7 of the Charter of Fundamental Rights of the European Unn (See: para. 43, 63, 66). Sharpston (2014), above no. 122, para 40. See for example: Jenni Millbank (2009), above no. 117; Uned Kgdom Lbian & Gay Immigratn Group (2013), above no. 60; Jansen (2014), above no. 98. Pl O’Dwyer, ‘A Well-Found Fear of Havg My Sexual Orientatn Asylum Claim Heard the Wrong Court’, 52 New York Law School Review (2007), at 186. See, for example: Christopher Kendall, ‘Lbian and Gay Refuge Atralia: Now that ‘Actg Discreetly’ is no Longer an Optn, will Equaly be Forthg?’, 15 Internatnal Journal of Refugee Law 4 (2003). For more on how genr and sexualy norms are reproduced through immigratn law, see: San Berger, ‘Productn and Reproductn of Genr and Sexualy Legal Disurs of Asylum the Uned Stat’, 34(3) Signs (2009): 659-685. Heteronormativy may be unrstood as the ways ‘normalizg regim produce heterogeneo, margalized subjects and posnali relatn to a valorised standard of reproductive sexualy between blogilly born male-female upl who belong to the domant racial-ethnic group and the middle class’ (Luibhéid (2008), above no. 8, at 170-71). For an analysis of this problematic the ntext of US se law, see: Hanna Fadi, ‘Punishg Masculy Gay Asylum Claims, 114 The Yale Law Journal (2005). Spijkerboer and Jansen (2011), above no. 56, at 61. HJ (Iran) v. Sec’y of State for the Home Dep’t (HJ and HT), [2010] UKSC 31, para 78. Sarah Keenan, 'Safe spac for dyk danger? Refugee law's productn of the vulnerable lbian subject' : Sharron FzGerald (ed.), Regulatg the ternatnal movement of women: From protectn to ntrol (Oxon: Routledge, 2011): 29-47. Sarah Hger (2010), above no. 83, at 389-390; Lrie Berg and Jenni Millbank, ‘Constctg the Personal Narrativ of Lbian, Gay and Bisexual Asylum Claimants’, 22 Journal of Refugee Studi (2009). UNHCR (2012), above no. 6, at 4. Hger (2010), above no. 83, at 368. Kennan (2011), above no. 133. Deborah A. Man, ‘Not Gay Enough For the Government: Racial and Sexual Stereotyp Sexual Orientatn Asylum Cas’, 15 Law & Sexualy Review. Lbian Gay Bisexual & Legal Issu 135 (2006); Elisabeth Connelly, ‘Queer, Beyond a Reasonable Doubt: Refugee Experienc of ‘Passg’ to ‘Membership of a Particular Social Group’’, 2014(3) UCL Migratn Rearch Un Workg Papers (2014); Jenni Millbank, ‘Rg of Tth A Case Study of Credibily Asssment Particular Social Group Refugee Determatns’, 21(1) Internatnal Journal of Refugee Law, Volume 21 (2009), at 18-19. Stt Roberts, ‘UK: Judg acced of askg lbian asylum seekers ‘appropriate’ qutns such as ‘Have you read Osr Wil?’, PkNews, 5 April 2013. See for example: Elisabeth Connelly, ‘Queer, Beyond a Reasonable Doubt: Refugee Experienc of ‘Passg’ to ‘Membership of a Particular Social Group’’, 2014(3) UCL Migratn Rearch Un Workg Papers (2014). For a list of exampl, see Jansen and Spijkerboer (2011), above no. 56, at 61. Jill Powell : Ashery (2010), above no. 22. Berg and Millbank (2009), above no. 134, at 201; Millbank (2009), above no. 138, at 12; Man (2006), above no. 138, at 141. Jordan (2009), above no. 7, at 175. UNHCR, ‘The Protectn of Lbian, Gay, Bisexual, Transgenr and Intersex Asylum-Seekers and Refuge’ (Discsn Paper, Prepared for a UNHCR Roundtable on Asylum-Seekers and Refuge Seekg Protectn on Acunt of Their Sexual Orientatn and Genr Inty, Geneva Divisn of Internatnal Protectn, Geneva, 22 September 2010), at 10. Hger (2010), above no. 83, at 389. See: Eward Ou J Lee and Shari Brotmann, ‘Inty, Refugeens, Belongg: Experienc of Sexual Mory Refuge Canada’, 48(3) Canadian Review of Soclogy (2011): 241-274. Steve Korver, ‘Ai: Fake Gay Refuge’, AllAi, 19 Augt 2013; Marqus of Queensbury : Z v. Secretary of State for the Home Department, [2004] EWCA Civ 1578, UK CoA, 2 December 2004 (origal quote not to be found. Quoted : Janna Weßels, ‘Sexual orientatn Refugee Stat Determatn’, Workg Paper Seri No. 74, Refugee Studi Centre, Oxford Department of Internatnal Development, Universy of Oxford (2011); S. Chelvan, ‘From Sodomy to Safety? The se for fg persecutn to clu unenforced crimalisatn of same-sex nduct’ (Paper livered at Fleeg Homophobia Conference, Amsterdam, 5 September 2011); Millbank (2009), above no. 117. Jill Power : Ashery (2010), above no. 22, at 11. Millbank (2009), above no. 117, at 399. As official data ncerng queer claims are also absent the UK, the numbers are posed of official UK asylum data, weighed agast the percentage of rejectns of all s brought to UKLIG. (Uned Kgdom Lbian & Gay Immigratn Group, Failg the Gra (8 April 2010)), at 2. Chris Bryant : Stt Roberts (2014), ‘Shadow Immigratn Mister Chris Byrant blasted for sayg gay asylum s ‘will always be msy’, Pk News, 2 September 2013. See: S. Chelvan, DSSH Mol and LGBTI asylum claims (Prentatn, April 2014. Available: Mol and LGBTI Asylum ). See for example: Neil Gngras, ‘Risg Numbers of LGBTI Refuge Facg Fight for Survival’, The Huffgton Post, 20 June 2014; Jansen (2014), above no. 98; Nile LaVlette (2013), above no. 53. LaVlette (2013), above no. 53, at 21. Nile LaVlette, ‘Inpennt human rights documentatn and sexual mori: an ongog challenge for the Canadian refugee termatn procs’, 13(2) The Internatnal Journal of Human Rights (2009), at 440. ‘There is no universally accepted fn of ‘persecutn’, and var attempts to formulate such have been met wh ltle succs’. The UNHCR provis the followg: ‘Persecutn n be nsired to volve ser human rights vlatns, cludg a threat to life or eedom, as well as other kds of ser harm, as asssed light of the opns, feelgs and psychologil make-up of the applint’ (UNHCR, Handbook on Procr and Creria for Determg Refugee Stat (Geneva: re-eded Versn of January 1992, at 51-52). See: Hathaway and Pobjoy (2012), above no. 119, at 343. Jansen and Spijkerboer (2011), above no. 56, at 10. Qualifitn Directive (2004), above no. 87, Art. 4(3), 8(2). Council Directive 2005/85/EC of 1 December 2005, Article 8(2)(b). Members of the European Parliament 2011 proposed to amend the wordg of this directive to ‘Member stat shall ensure that (...) the personnel examg applitns and takg cisns are stcted and have the possibily to seek advice, whenever necsary, om experts on particular issu, such as medil, cultural, child, genr, relig or sexual orientatn issu’. The proposal was refed by the European Commissn. See: LaVlette (2009), above no. 157. Jansen and Spijkerboer (2011), above no. 56, at 71-76. The UK is the only untry that extensively vers queer sectns s untry reports. The Netherlands, Swen and Fland also llect queer-related rmatn for the purpos of their asylum procr. See: ILGA 2014, at 37. O’Leary (2008), above no. 93, at 91-92. For tailed rearch on this issue the Canadian ntext, see: LaVlette (2009), above no. 156. The followg except of a US judgment bt illtrat the problematic: ‘if there was a ser possibily that homosexuals, as a particular social group, had a well- found fear of persecutn bee of their sexual orientatn, the panel is of the opn that one or more of the human rights publitns would ce this as a ncern . . . [however] [t]he panel was not able to fd any reference to such a ncern the recent Amnty Internatnal Report or Human Rights Watch World Report’ (Re H. (Y.F.), ced LaVlette (2009), above no. 156, at 442). See also: UNHCR 2012 Guil para. 66: Relevant and specific untry of orig rmatn on the suatn and treatment of LGBTI dividuals is often lackg. This should not tomatilly lead to the ncln that the applint’s claim is unfound or that there is no persecutn of LGBTI dividuals that untry’. ILGA Europe, Country of Orig Informatn (no date. Available: ). ibid, at 1. Barbara Wsel, Lecture ‘Sexuelle Verfolgung als Asylgnd - LGBTI im utschen Asylverfahren’, Humboldt Universy, Faculty of Law, 15 July 2014. Quote German, noted down and translated to English by the thor. Arwen Swk, ‘Queer Refuge: A Review of the Role of Country Condn Analysis Asylum Adjuditns for Members of Sexual Mori’, 29(2) Hastgs Internatnal and Comparative Law Review (2005), at 260. Apart om the se of Germany, see e.g.: Simone Rossi, Qutnnaire Italy (submted for Jansen and Spijkerboer’s Fleeg Homophobia Rearch Project, above no. 56), at 17; A urt the Czech Republic accepted YouTube Vio as COI evince. See: David Kosar, Qutnnaire Czech Republic (submted for Jansen and Spijkerboer’s Fleeg Homophobia Rearch Project, above no. 56), at 28. Weßels (2011), above no. 149, at 14. Swk (2005), above no. 169, at 256 Hojem (2009), at 14. Which has even the UK been found to be the se, spe s heightened efforts to specifilly ter for LGBTQ documentatn (for example by workg wh an pennt advisory panel of experts on untry rmatn). See: UKLIG (2013), above no 59, at 23. The answers to which are trimental to s where urts seek to rely on the ternal flight alternative, whereby applints are nied asylum on the basis of a reasonable expectatn that by relotg to another area of their untry of orig or rince they n pe persecutn, See: Qualifitn Directive (2004), above no. 87, Art. 8(2); UNHCR (2008), above no. 6, at 33, 34. Especially the latter is trimental sce immigratn thori may easily nflate non-enforcement of laws wh non-persecutory environments, two matters that are many stanc neher alike nor mutually exclive. The unrstandgs of this vary signifintly across the EU, where the CJEU s 2013 lg furthermore left up to each member state to terme whether the mere existence of anti-homosexualy laws suffic to be meet the Conventn’s persecutn thrhold. Though ltle nsistency has been found across the EU this ntext, most member stat, wh the exceptn of Italy, the crimalisatn of queer inti has to actually be enforced. (Jansen/Spijkerboer (2011), above no. 56, at 22. For Italian se law on this matter see: Trib. Trite 304/1999; Trib. Caltanisetta 7.6.2010; Trib. Caltanisetta 10.2.2010; Trib. Toro 5.11.2010 n.426). The UNHCR this ntext fds that petners should be able to rely on persecutn even when existent legislatn isn’t enforced. (UNHCR (2008), above no. 6, at 20-22). Sce the mere existence of statutory provisns that outlaw queer inti are ually reflective of a strongly persecutory environment, this appears to be a more reasonable approach. It should be noted that ntrary to the CJEU, is the approach taken by the European Court of Human Rights as well as the Uned Natns Commtee Agast Torture, which have followed the UNHCR le of reasong. (See: Dudgeon v the Uned Kgdom, above no. 43; Norris v Ireland judgment of 26 October 1988, Seri A no. 142; A.D.T. v. the Uned Kgdom, no. 35765/97, § 23, ECHR 2000-IX; Modos v. Cyps judgment of 22 April 1993; UN Commtee Agast Torture, Mondal v. Swen. 23 May 2011, UNCAT, 338/2008). Wsel (2014), above no. 168. For more on this, see for example: Alok Gupta, This Alien Legacy. The Origs of ‘Sodomy’ Laws Brish Colonialism (Human Rights Watch, New York, December 2008); Robert Aldrich, Colonialism and Homosexualy (New York/London: Routledge, 2003).
Contents:
‘WE N’T GO BACK’: THE RSIAN GAY FAY WHO TOOK REFUGE SPA
Lbian, gay, bisexual, and transgenr (LGBT) asylum seekers Spa’s North Ain enclave, Cta, are exposed to harassment and abe, Human Rights Watch said today. Spanish thori should transfer them to maland Spa whout lay and halt s facto policy of blockg most asylum seeker transfers to the maland * spain lgbt asylum *
“LGBT asylum seekers who fled homophobic harassment and timidatn at home face siar abe Cta, both at the immigratn center and on the street, ” said Judh Sunrland, associate Europe and Central Asia director at Human Rights Watch.
Human Rights Watch spoke wh three gay men hoed at the center, two om Moroc and one om Algeria, all of whom had filed for asylum on the grounds of persecutn due to their sexual orientatn.
Although LGBT asylum seekers are not listed the directive among people nsired vulnerable, Human Rights Watch agre wh the EU Fundamental Rights Agency and the Internatnal Lbian, Gay, Bisexual, Trans, and Intersex Associatn (ILGA-Europe) that many LGBT people seekg asylum qualify due to the kd of persecutn experienced their untri of orig. In B (Gambia) and C (Swzerland) v Swzerland, the ECtHR led that Swzerland had vlated the ECHR, Article 3 when removg a Gambian gay applint who would face persecutn and a real risk of ill treatment his untry of orig. The Feral Admistrative Court (FAC) Swzerland held that unbearable psychologil prsure for homosexuals Syria jtifi grantg refugee stat to a Syrian man whose applitn had prevly been rejected.
* spain lgbt asylum *
The suatn for LGBTI asylum seekers a number of European untri is ght wh difficulti wh many facg double discrimatn, a new report has face "specific difficulti and jtice" even untri that rank high for posive LGBT legislative change, acrdg to an annual review by the Internatnal Lbian, Gay, Bisexual, Trans and Intersex Associatn (ILGA) says LGBTI asylum seekers face double discrimatn Denmark, Estonia, France, Germany, Greece, Malta, The Netherlands, Portugal, Spa, Swen and the Denmark, activists have documented s of trans asylum seekers whout accs to trans-specific healthre or beg harassed, while NGOs Spa have warned of the unrreportg of discrimatn and vlence that LGBTI asylum seekers endure, and a lack of accs to social and healthre servic. 'Real people's liv are at stake'Overall, the report warned that 2021 has seen a rise official anti-LGBTI rhetoric that has fuelled a wave of hate crime every untry Europe — and not jt Hungary and Poland which have been rebed by Bssels over certa legislatns or so-lled "LGBT-ee zon" noted, however, that a"particular low pot" me on June 15 when Hungary troduced legislatn that bans the "portrayal and the promotn of genr inty different om sex at birth, the change of sex and homosexualy" for persons unr 18.
A poll om Amnty Internatnal found for stance that nearly three-quarters of Hungarians reject the ernment’s false claim that gay and lbian people abe or harm children while 59% support same-sex Serbia, 60% of people thk that trans people should be protected, while over two-thirds of Romanians believe all fai, cludg rabow fai, should be protected. In Ai, for example, Ugandan print Yoweri Meveni earlier this year publicly signed a law ont of numero media reprentativ that impos life prison sentenc for homosexual nduct and the promotn thereof. (18) In ntrast to s tle, the statute crimalis any direct or direct ‘public show of same-sex amoro relatnships’ and fore prison sentenc of up to ten years for anyone who ‘supports the registratn, operatn and stenance of gay clubs, societi, anisatns, procsns or meetgs Nigeria’.
Today, Spa’s parliament passed a prehensive law to expand protectns and entrench rights for lbian, gay, bisexual, transgenr, and tersex (LGBTI) people. The statute has bee known lloquially as the “Trans Law” bee provisns that allow for genr regnn based on self-intifitn through a simple admistrative procs have provoked heated public bate. * spain lgbt asylum *
(22) In Lebanon, civil society Augt this year warned homosexual men to leave their phone lls unanswered as police forc allegedly arrt members of the muny to subsequently exame text msag an attempt to track down other homosexuals. (24) In Malaysia, where 86% of the populatn views homosexual persons as acceptable, (25) school boys intified by their teachers as beg too ‘effemate’ have been sent to anti-gay mps to gui them back to a proper life style. (27) Closer to Europe and spired by Rsia’s famo homosexual propaganda legislatn, (28) the Kyrgyz Parliament is currently the procs of passg a siar bill that crimalis any nduct or statements favour of non-tradnal sexual relatnships.
Lat Amerin societi, for example, have often been regard as particularly sued to high levels of stutnalised homo- and transphobia due to the prevalence of relig iology and wispread machismo.
While the nsens that queer inti (though notably first and foremost, gay men and lbians) certaly nstute a particular social group is a tremendo movement the right directn, jurispnce on the matter has been and ntu to be extremely nsistent s fns and analys.
The rights of gay, lbian, bisexual and transgenr people have taken centre stage ahead of Spa's July 23 natnal electn. * spain lgbt asylum *
(98) Developed the 20th century as a diagnostic tool to assist aversn therapi to cure homosexualy and as an objective method to prove sexual viancy or paraphilia, (99) Czech immigratn officials hooked gay and lbian petners to mach that termed levels of sexual aroal by measurg the asylum seekers’ physil reactns as they were exposed to homo- and heterosexual porn.
Spa nsistently ranks among the most gay-iendly untri the world acrdg to ternatnal studi. But is this lack of prejudice Spanish society real or jt visible on paper? * spain lgbt asylum *
Its tragedy is ‘that urts advanced this obligatn of behavur modifitn, effect postulatg self-censorship, agast gay applints even as they vigoroly (and appropriately) rejected any parable duty to disguise one’s polil opns or relig nvictns orr to be safe’. (130) Exampl clu an applint Cyps whose claim failed bee he had not tried to avoid the untry’s ary service, which was found to ntradict ‘gay’ nduct, or a Nigerian woman Hungary whose medil examatn rulted the fdg of her ‘strong feme sexualy’ (i.
Givg a ‘trivial example om the Wtern ntext’, his lordship is of the opn that ‘jt as male heterosexuals are ee to enjoy themselv playg gby, drkg beer and talkg about girls wh their mat, so male homosexuals are to be ee to enjoy themselv gog to Kylie ncerts, drkg exotilly loured cktails and talkg about boys wh their straight female mat’. (132) While the Supreme Court judge his seventi has ldable tentns, pots to the trivialy of his exampl, and did state that the same mt apply other societi (‘suggtg that he has some awarens that there are differenc between gay cultur here and there’), (133) such clichéd pictns of queer (or straight) dividuals, irrpective of whether they stem om the hight judicial stance of the Uned Kgdom or immigratn thori all across Europe, are troublome on many levels.
’ (135) By prupposg limed notns of supposedly European homosexualy as part of asylum procs, queer petners are beg ‘mould, through their dividual asylum claims, to a particular, Wtern characterizatn of queer inty’. It is qutnable though, whether claims such as those of journalist Steve Korver, that ‘posg as a homosexual is the latt trick to get refugee stat or benef om the subsidiary protectn’ or that of the UK judge Marqus of Queensberry, that ‘the real mischief (…) that is likely to be ed by this allowg his appeal is by enuragg a flood of dulent Zimbabwean (and no doubt other) asylum-seekers posg as sodom’ are actually reflective of European asylum trends.