Reports have surfaced regarding the denial of asylum applications by European courts for individuals claiming persecution because of their sexual identity. What are the courts’ reasoning given in these reports? That the applicant would be able to avoid persecution in their country of origin if they would keep their sexual identity discreet. These rulings are in direct violation of various international conventions and customary international law, as numerous previous court rulings throughout the world have condemned the practice of expelling individuals who fear persecution on the basis that they could avoid persecution by living discreetly.

In 2010, an appeal was brought to the UK Supreme Court of the United Kingdom (Supreme Court) by two homosexual men from Cameroon and Iran. The men argued that their applications for asylum were wrongfully denied by the courts under the ruling that they could avoid persecution in their respective countries if they lived discreetly. In a ruling that has since changed the practice in the UK the courts found that their asylum applications were wrongfully denied by the lower court decision. The Supreme Court found that the decision violated the men’s right to freedom of expression which is entitled to everyone under Article 19 of the Universal Declaration of Human Rights, which was subsequently adopted into the International Convention on Civil and Political Rights. By ordering someone to return to their country of origin where they fear persecution and ordering them to, in a sense ‘hide’ who they truly are, denies the individual the right to express an innate characteristic of who they are. Homosexuality is an innate characteristic and therefore has been added to the list of social groups that can apply for asylum under one of the five enumerated grounds of past or future persecution according to the definition of a refugee by the 1951 UN Refugee Convention:

A refugee is a person who is outside their country of citizenship because they have well-founded grounds for fear of persecution because of their race, religion, nationality, membership of a particular social group or political opinion, and is unable to obtain sanctuary from their home country or, owing to such fear, is unwilling to avail themselves of the protection of that country.

This mention of who constitutes a particular social group was made clearer by the United Nations High Commissioner on Refugees (UNHCR) in 2002, ‘[the convention] recognizes women, families, tribes, occupational groups, and homosexuals, as constituting a particular social group for the purposes of the 1951 Convention [definition of a refugee].’

Other high courts have agreed with the UK Supreme Court’s 2010 ruling. Another instance involves a Swedish court ruling that a homosexual man could rightfully be deported back to Libya, where homosexuality is a punishable crime, and the individual could avoid persecution if he would express his identity as a gay man in private. The case, M.E. V Sweden, was eventually heard by the European Court of Human Rights (ECHR) and the ECHR upheld the previous ruling made by the Swedish court. However, the International Court of Justice (ICJ) has a different view on the issue and has since shared their opinion in response to the ECHR decision. The ICJ states:

The fact that the applicant could avoid the risk of persecution in Libya by exercising greater restraint and reserve than a heterosexual in expressing his sexual orientation is not a factor that ought to be taken into account…. The requirement to conceal sexual orientation is, in itself, incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it… and [homosexuals] cannot be expected to conceal [their] homosexuality in [their] country of origin in order to avoid persecution.

Additionally, by returning an asylum seeker to their country of origin and ruling that they could avoid persecution by ‘hiding’ an innate characteristic is even a violation of the 1951 Convention’s definition of a refugee and defeats the Convention’s intended purpose. Sir John Dyson SCJ mentions this in the Supreme Court’s ruling:

The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.

Therefore, in order for the convention to be successful and utilized correctly immigration courts must not make such rulings and use them as a denial of asylum applications.

Europe is not the only region of the world where these same legal issues are discussed. The United States and Canada high courts and circuit courts of appeals have made two major rulings condemning any ruling that requires an individual to be sent back their country of origin which would require them to keep their sexual identity discreet to avoid persecution.

The case of Atta Fosu v Canada (Citizenship and Immigration) was heard in the Federal Court of Canada (Federal Court). The case was brought to the Federal Court by a Ghanaian national who claimed to fear persecution by the Ghanaian police based on the knowledge that he was homosexual. The immigration board held that the applicant could live ‘discreetly’ in a new Ghanian city, meaning that another alternative to avoid persecution in Ghana existed for the applicant. However, in 2008 the Federal Court of Canada reversed the immigration court’s ruling and held that the decision was unreasonable because it required the applicant to deny or hide the innate characteristic that was the basis of his asylum claim if he was forced to return to Ghana and the immigration court erred in expecting him to do so. The Federal Court’s ruling on the case was similar to a 2005 ruling by United States 9^th Circuit of Appeals, which held similar views on the issue in the case of Karouni v Gonzales. The 9^th Circuit held that, ‘the argument that the homosexual applicant could avoid persecution by living [a discreet life] in Lebanon, is essentially arguing that the [the applicant] be required to change a fundamental aspect of his human identity… this is a violation of his rights etc.’

Although cases involving denial of asylum on the grounds that a gay or lesbian individual could ‘hide’ who they are to avoid persecution is becoming less frequent, many courts continue to find it a valid argument and thereby endorsing its logic. However, if those courts were to look at the Refugee Convention of 1951, recalling that it exists so that people are protected and allowed to live their lives free from the fear of serious harm, the error of the ‘discreet life’ rulings in asylum cases would be clear. The well-founded fear and risk of serious persecution for an individual is still present, whether they are within or outside the proverbial closet. The courts would benefit by bearing this in mind.

This article was written by Christian Jorgensen, a writer for dusk magazine.