By Dr Reuven (Ruvi) Ziegler
The 1951 Convention relating to the Status of Refugees (1951 Convention) defines a refugee as someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside their country of nationality and is unable or, owing to such fear, is unwilling to avail themselves of the protection of that country (my emphasis).
The premise for the contribution is that signatories to the 1951 Convention apply variable standards to similar protection claims made by persons based on their well-founded fear of persecution for reasons of sexual orientation and/or gender identity (SOGI), categories which have been read by some into the 1951 Convention’s ‘membership of a particular social group’ category. Given that most countries conduct their own Refugee Status Determination (RSD) processes, they all may, in principle, be called on to appraise asylum applications lodged by those claiming to have a well-founded fear of persecution on sexual orientation and gender identity (SOGI) grounds. The contribution seeks to identify common patterns of variability across these categories among signatories of the 1951 Convention and its 1967 Protocol, explain them, and consider their human rights implications, including in respect of equality and non-discrimination.
The 1951 Convention lacks an authoritative global body entrusted with standard-setting. Nevertheless, UNHCR published guidelines pursuant to its mandate as contained in its Statute and in Article 35 of the 1951 Convention.
In 2013, the UN High Commissioner for Refugees (UNHCR) published ‘Guidelines on International Protection no. 9: Claims to refugee status based on sexual orientation and/or gender identity within the context of Article 1A(2))…’ (SOGI Guidelines). The SOGI Guidelines state that ‘LGBT+ individuals are the targets of killings, sexual and gender-based violence, physical attacks, torture, arbitrary detention, accusations of immoral or deviant behaviour, denial of the rights to assembly, expression and information, and discrimination in employment, health and education in all regions around the world’ (para 2). The introduction to the SOGI Guidelines states that they complement the May 2002 Guideline No. 1 (on gender-related persecution) and Guideline No. 2 (on membership of a particular social group) as well as the April 2004 Guideline No. 6 (on religion).
Whereas UNHCR guidelines ‘are intended to provide legal interpretative guidance for governments, legal practitioners, decision makers and the judiciary, as well as UNHCR staff carrying out refugee status determination under its mandate’, they are not binding on 1951 Convention signatories, and many of them do not align their domestic refugee policies with these standards. This inevitably affects the way they assess protection claims.
Consider, for instance, protection claims made by gay asylum-seekers. Legal and social approaches regarding same-sex individuals and couples vary drastically globally, and 1951 Convention signatories are situated along the entire spectrum, both in relation to criminalisation and penalisation and in terms of legal protections that LGBT+ persons enjoy, most notably in relation to same-sex relations (as indicated on the ILGA maps below). Significant divergence in responses to SOGI protection claims is therefore to be expected.
This contribution advances two hypotheses:
First, higher standards of protection of SOGI minorities under the national law of a receiving country will lead it to expect the country of origin to ensure higher level of protection (or of non-discrimination) in its laws and practices.
Second, receiving countries do not expect claimants to enjoy the same level of protection in their state of origin as that ensured by their national law; rather, a lower level of protection would likely suffice to uphold the refugee law presumption of state protection.
A gay claimant in country X would therefore be treated differently both from a gay claimant in country Y and from gay residents of country X.
Let us consider an example pertaining to the first hypothesis. Two of the most damning features of Uganda’s Anti-Homosexuality Act 2023 are the imposition of the death penalty on consensual same-sex conduct between adults in private in aggravated circumstances, and of 20 years’ imprisonment for so-called promotion of homosexuality. Aggravated legalised hostility towards gay Ugandans will likely lead many to flee elsewhere. Where they flee could make a significant difference as to the likelihood of their protection claim being accepted. For instance, on the African continent, they may flee to neighbouring Tanzania, where homosexuality is criminalised, or to neighbouring Rwanda, where there is neither criminalisation nor protection from discrimination, yet Article 26 of the Constitution provides that ‘[o]nly civil monogamous marriage between a man and a woman is recognized’. Alternatively, they may seek to travel across the continent to South Africa, where the Constitution has been interpreted to grant full equality in law on grounds of sexual orientation. Moreover, South Africa’s post-Apartheid Refugees Act no 130 of 1998 explicitly recognises both gender and sexual orientation as persecutory grounds (ss 1(XXI) and 3(a)). It is hypothesised that, whereas the protection claim is likely to succeed in South Africa, it is highly unlikely to be officially made, let alone accepted, in Tanzania. The position in Rwanda is less clear: whereas its legislation does not criminalise homosexuality, there is no legal protection from discrimination on SOGI grounds and there is reportedly great social hostility towards SOGI minorities. Its refugee legislation (Article 7(1) of Law No. 13 ter/2014 of 21 May 2014 relating to refugees), unlike South Africa’s, does not explicitly stipulate that sexual orientation qualifies as a ‘particular social group’.
Consider next an example pertaining to the second hypothesis, concerning approaches to rarely and/or unenforced criminalisation of homosexuality. In 2013, the Court of Justice of the EU in X, Y and Z (gay men from Sierra Leone, Uganda, and Senegal, three countries where homosexual acts were – and still are – criminalised, seeking refugee status in the Netherlands), held that the existence of criminal laws which specifically target gays supports the finding that those persons must be regarded as forming a particular social group as they are identified though their ‘difference’. However, the court found that criminalisation of same sex conduct does not per se constitute an act of persecution; rather, criminalisation has to be de facto enforced.
Compare the CJEU’s approach with the European Court of Human Rights (ECtHR) in two cases in the 1980s, Dudgeon v. UK and Norris v. Ireland. In Dudgeon, the ECtHR found that ‘the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 par. 1 [of the European Convention on Human Rights]’ and that ‘the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant’ (para 60). In Norris, it stated that ‘a law which remains on the statute book, even though it is not enforced in a particular class of cases for a considerable time, may be applied again in such cases at any time, if for example there is a change of policy’ (para 27). The UNHCR SOGI Guidelines referenced above also state that even ‘if irregularly, rarely or ever enforced, criminal laws prohibiting same-sex relations could lead to an intolerable predicament’ (para 27). This discrepancy between the ECtHR’s position regarding criminalisation (in Europe) and the ECJ’s approach to criminalisation (in Africa) suggests a difference in standard of expected treatment between (now a long abandoned practice) in ECHR signatories (all EU member states) and the standard applied to protection claims.
Analogously, Article 3 of the ECHR stipulates that ‘everyone’ has a right not to be subjected to ‘inhuman or degrading treatment or punishment’. This right has been consistently held to apply to removals or deportations to a non-signatory state. Yet, in N v UK, the ECtHR held that, even when applicants will be denied receive in the receiving country medical treatment available to them in their country of origin, their removal will be contingent on ‘whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity’ (para 69). Whereas the UK Supreme Court in AM (Zimbabwe) (access to antiretroviral therapy) modified its test to consider ‘serious, rapid and irreversible decline in the person’s state of health’ its fundamentals remain: a different standard applies for the level of treatment a person not subject to removal can expect from their (receiving country) than for the level of treatment the denial of which would ground a protection claim (against removal to a country of origin).
Given the above, it is anticipated that, for instance, 1951 convention protection claims based on workplace discrimination, such as dismissal due to one’s sexual orientation, may be rejected despite having protected workers from discrimination on that basis in its domestic legislation.
The contribution’s first hypothesis challenges the universality of refugee protection standards. As a global instrument with a universal definition of a ‘refugee’, the same standards are supposed to apply to refugees irrespective of where they seek protection. The gendered language of the UNHCR Handbook famously states that ‘[r]ecognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee’ (para 28). Analytically, the ramifications are clear: if refugee status is declaratory, and if the refugee definition is universal, it stands to reason that the same protection claim should be similarly assessed irrespective of where it is submitted. Research has exposed the so-called ‘asylum lottery’ or ‘refugee roulette’, highlighting variability in asylum procedures, access to resources (e.g. translation, legal aid), and indeed judicial biases and (lack of) training which ultimately affects the outcomes.
The claim here, though related, is different: that when adjudicating SOGI protection cases, the ideological gaps between signatories as to whether these are refugee protection claims are so profound that in such cases the variability of outcomes is a feature, not a bug, of the global asylum system. This is notwithstanding the 2007 non-binding Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, principle 23 of which stating that ‘Everyone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to sexual orientation or gender identity’. It would therefore be hardly surprising if SOGI asylum applicants sought protection in jurisdictions where rights of SOGI minorities are domestically protected, a challenge which other asylum claimants from the same country do not face.
The contribution’s second hypothesis challenges the commitment of signatories to international and regional human rights treaties to the universality of rights. Of course, the claim that human rights standards should be identically protected by all signatories to a treaty is not uncontested: for instance, the ECtHR’s (in)famous ‘margin of appreciation’ doctrine acknowledges certain divergences between ECHR signatories. In Handyside v UK the court held that by ‘reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge’ (paras 48-49). But the issue here is rather different: the same country is applying different standards in respect of the same rights, depending on whether the challenge concerns the treatment the claimed is entitled to is to be provided in that country or elsewhere. Accepting that such standards can be different means that the standard of rights protection that a gay resident of a country of asylum can expect to enjoy, and may legally claim, is higher than the standard of protection that a gay asylum applicant is expected to enjoy in their country of origin, below which they would be unreturnable there. Hence, this is not a case of two countries subject to the same treaty applying different standards of protection, but of the same country applying two different standards.
Should they be substantiated in future work, these hypotheses reveal a genuine challenge to the claim to universality of both international human rights law and international refugee law.
Dr Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, School of Law, where he is Co-Chair of the LGBTQIA+ staff network. Ruvi is an Associate Academic Fellow of the Honourable Society of the Inner Temple; Research Associate of the Refuge Studies Centre, University of Oxford; Editor of the Reporter, the newsletter of the Society of Legal Scholars; Senior Research Associate of the Refugee Law Initiative (Institute for Advance Legal Study, University of London); Senior Research Associate of the University of Johannesburg Faculty of Law; and Co-convenor of the ‘Membership and Exclusion under Constitutions’ research group of the International Association of Constitutional Law. Ruvi is Chair of the Board of Trustees of New Europeans UK. Ruvi’s areas of research interest include International Refugee Law, Electoral Rights and citizenship, Comparative Constitutional Law, and International Humanitarian Law. Ruvi holds DPhil, MPhil, and BCL degrees from the University of Oxford.
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