Update: 30.08.2017

Sexual orientation and gender identity as reasons for asylum

There is no legal basis in Switzerland for the special treatment of asylum seekers who are persecuted because of their sexual orientation or gender identity. But according to Art. 3 Para. 1 of the Asylum Act (AsylA) refugees are defined as people who face serious disadvantages or have a justified fear of such disadvantages because they belong to a particular social group.

The State Secretariat for Migration (SEM) has defined seven social groups according to Art. 3 Para. 1 AsylA, including one based on sexual orientation/gender identity. To be given refugee status, the person seeking asylum must be seriously in danger in their country of origin because of their sexual identity or orientation.

According to SEM practices, people cannot receive asylum simply for being from a country that punishes homosexual activities if the person seeking asylum cannot provide credible proof. Authorities must be threatening to imprison the asylum seeker, who must provide proof that they themselves are at risk of being arrested. Therefore, people are granted asylum based on adverse effects or proven fears they will face discrimination, rather than the general laws and regulations in the country of origin.

Simple discrimination is not enough

When assessing whether or not there is a substantiated fear of persecution in the asylum seeker’s country of origin, the degree of persecution must be assessed. Measures of persecution are only relevant in the asylum process if the type and intensity make it impossible or unreasonably difficult for the person to lead a decent life. According to the SEM’s practices, the simple discrimination of LGBTI asylum seekers in their country of origin is not sufficient reason to grant refugee status. Difficulties such as official controls and harassment, arbitrary arrests, discrimination at work or at school and job loss, may not be sufficient reasons to grant asylum if they are not intense enough.

Difficult plausibility for LGBTI persons

Switzerland’s asylum practice attaches great importance to the plausibility of the information provided by the asylum seeker. They must provide credible proof that they experienced serious disadvantages due to their sexual orientation or gender identity.

Asylum seekers must present their personal experiences seamlessly and without any inconsistencies for the plea to sound credible. The whole narrative has to be detailed, consistent and naturalistic.

Any subsequent corrections or additions will be considered implausible as they are provided too late. This is a problem for LGBTI asylum seekers because they often cannot talk openly about their sexual orientation or gender identity during the asylum application interview. Often they have kept their sexual orientation or identity a secret for years because they are afraid or ashamed. Therefore, LGBTI asylum seekers may provide other reasons for flight or only submit the real reason later on. For this reason, authorities should not immediately deem all retrospective corrections implausible. Authorities do not currently show any understanding of this reality.

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Can prosecution be avoided by discrete conduct?

The discretion argument, which states that serious disadvantages in the person’s country of residence could be avoided if the person hid sexual orientation or gender identity, has been disallowed for a number of years. The Court of Justice of the European Union (CJEU) decided in late 2013 that homosexuals should not be expected to hide their sexual orientation in order to avoid persecution in their home country. The SEM also stresses that sexual orientation and gender identity are essential parts of human identity. The right to live one’s sexual orientation and gender identity freely, openly and without fear of consequences is essential.

Psychological pressure is not taken into account enough

It is difficult for people to explain that they have fled their country of origin for fear of being discovered or because they no longer want to hide their sexual orientation or gender identity after having done so for so long in order to avoid prosecution.

Swiss asylum practice assumes that suppressing or hiding certain parts of one’s identity can create intolerable psychological pressure that makes living impossible. But the pressure some people face because of obstacles to being in relationships, the need to conceal their sexuality or gender identity, the constant fear of discovery, and the lack of family support is often not sufficiently taken into account by Swiss migration authorities.

UNHCR guidelines

In 2012, the United Nations High Commissioner for Refugees UNHCR published guidelines on granting refugee status according to sexual orientation and gender identity to complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.

These guidelines help governments, asylum authorities and other decision-makers involved in determining refugee status interpret the law.

Broadening the concept of refugees is necessary

Since it is difficult for LGBTI asylum seekers to receive protection in Switzerland, various sides are asking that LGBTI-specific persecution no longer be collected under the catchall provision “membership of a particular social group.” Along with the amendment to Art.3 of the Asylum Act in analogy to about motives for seeking asylum specific to women, reasons for flight regarding sexual orientation or gender identity should also be explicitly included. These additional reasons to flee would lead to a greater awareness among all entities and organisations involved and would be highly desirable. Sexual orientation is already explicitly mentioned in the EU guideline on the topic.

Problems of LGBTI asylum seekers do not end right away

LGBTI asylum seekers’ problems are not all solved when they reach Switzerland. They are often exposed to discrimination and verbal abuse from fellow asylum seekers. They live alongside people who still have the same stigmatising attitudes they had in their country of origin. These people put pressure on asylum seekers with different sexual orientation in Switzerland too. Asylum authorities, staff members in asylum centres and aid organisations need to address this topic head on and must receive special training. Particular attention has to be paid to accommodation because LGBTI asylum seekers are especially vulnerable. Refugees must be provided with a safe house in Switzerland where they can live free from discrimination.

Documentation

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