Understanding sexual orientation as a ground for seeking asylum

The United Nations High Commissioner for Refugees (UNHCR) has provided numerous interpretive instruments in recent years that recognize the unique security needs of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people. Here, we attempt to understand UNHCR's perspectives on the study of LGBTI claims and the specific problems that which arise as a result of such claims, as well as offer guidance on how to apply these perspectives in assisting asylum seekers.

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Emotional,  affectionate, and sexual attraction toward persons of the same or different  genders, or more than one gender, is referred to as sexual orientation. The  LGBTQI group encompasses a diverse range of individuals who have feelings or  desire towards people of the same gender or both genders. It is an individual’s  personal decision. Many social agents, on the other hand, exert power over  popular opinion as well as a country's rules and laws.

  The  Supreme Court of India struck down sections of Section 377 of the Indian Penal  Code (IPC) in the landmark case of Navtej Singh Johar v. Union of India. Prior  to the 2018 judgement, India was one of the countries where homosexual sex  between consenting adults was illegal.
 
  LGBTQI people have long been subjected to various forms of marginalisation,  abuse, and discrimination. Unfortunately, homosexuality and/or homosexual  conduct are still illegal in as many as 75 countries. Thirteen of the 75  nations use the death penalty to punish those who break certain inhumane laws.  When these persecutions are backed up by state legislation, these people have  no choice but to flee their homeland.


Sexual orientation as grounds for asylum

     
  • A person's sexual  orientation is an intrinsic part of his or her identity, and it should not be  used as a basis for social condemnation, state punishment, or legal  subjugation.
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  • Everybody has the right  to have their civil rights protected on the basis of equality and  nondiscrimination.
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  • According to Article 1 of  the Universal Declaration of Human Rights, "all human beings are born free  and equal in dignity and rights," and "everyone is entitled to all  the rights and freedoms set out in this declaration."
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  • The Yogyakarta  Principles, which focused on the application of International Human Rights, the  1951 Refugee Convention, and its 1967 Protocol, to sexual orientation and  gender identity, were adopted in 2007. Despite the fact that the principles are  not legally binding, they help to draw the dots between international human  rights and the issue of sexual minorities’ persecution.
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  • The 23rd principle  emphasizes that "every citizen has the right to seek and obtain asylum  from persecution in other countries." On the basis of sexual orientation  or gender identity, a state does not expel or extradite an individual to any  country where that person faces a well-founded fear of abuse, persecution, or  any other kind of cruel, inhuman, or degrading treatment or punishment.”

 

Does LGBTQi come under the definition of a “social  group, political opinion or religion?”
  Asylum  seekers are also stereotyped as belonging to a specific social community. The  UNHRC considers both the “innate, unchangeable, and otherwise intrinsic to  identity” features of a social group and the “perceived” existence of the group  by society when determining its identity. As a result of their fulfilment of  those criteria, homosexuals form a subset within that group.

     
  • It can also be seen that  the question of an individual seeking asylum not only meets the requirements of  a social group, but also the standards of political opinion and faith set out  in the 1951 Refugee Convention.
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  • A person's sexuality can  also define his or her political opinion, which may or may not be widely  recognised or may be in opposition to the country's political policy. This puts  them at risk of persecution and therefore counts as a criterion under the  Refugee Convention.
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  • In cultures around the  world where religion continues to play a significant role in preventing  individual deviance, sexuality may or may not be in accordance with agreed  norms. It's commonly regarded as a sin, illness, or a purposefully antisocial  act. This finding is not limited to any particular geographical region, but  rather occurs infrequently but widely across the globe.
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  • As a result, the  religious institution to which these people belong isolates them. Further  repression may come in the form of forced corrections, marriages, or  supernatural beliefs that may lead to physical punishment.

 

Principle of “well-founded  fear of being persecuted”
  When  determining whether or not to grant asylum based on an individual's sexuality,  one of the most important factors to consider is whether or not the person has  "well-founded fear." The word "persecution" does not have a  specified definition in international law or in any convention. It varies  depending on the case's context. However, it is more likely to include abuses  of human rights, posing a threat to democracy or life. Persecution does not  require that the crime or damage be perpetrated by the state. Persecution may  also come from non-state actors, such as the general public.
 
  An individual may already be under a lot of mental strain as a result of their  fear of not being accepted. Furthermore, by seeking refuge, a person does not  want to attract the attention of the state to himself/herself/themselves, and  would rather seek asylum elsewhere. To create a "well-founded fear,"  one does not need to show that he was subjected to forced persecution or that  his/her/their state's authorities were aware of his sexuality. Awareness of  similar cases occurring in the state of origin, as well as the state's  anti-homosexuality stance, serve as legitimate foreseeability.
 
  The asylum procedure

     
  • Applying for asylum on  the basis of sexual orientation is the first move. Countries have  migration/refugee/immigration departments that investigate such applications  and continue the process.
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  • This is followed by a  second step, which is usually an interview (depending on the country), in which  the immigrant must substantiate his or her claim in front of officials.
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  • They must successfully  show that they are outside their country of nationality, that they are afraid  of persecution, that the fear is justified, that the fear exists because of  "colour, faith, nationality, membership of a specific social group, or  political opinion," and that they do not wish to return to their country  of origin because of this fear.
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  • Depending on the nation  in which they seek asylum, they will be asked to show the veracity of their  evidence and reasons for believing they are not secure in their current  country. In addition, they may be asked to show their sexuality.
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  • For other information  about the fear of persecution in their home countries, immigration authorities  depend on consulate surveys, fact-finding missions, and reports from  non-governmental organisations such as Amnesty International and Human Rights  Watch.

 

Tips for Asylum Seekers
  For  asylum seekers, the most significant source of knowledge can come from the lawyers  or legal experts of the countries to which they wish to apply. There are often legal-aid  cells that provide free assistance. However, finding a great lawyer might not  always be possible due to high fees and generally unfavourable financial  circumstances. This is where non-governmental organisations (NGOs) and social  organisations come in. Well-established NGOs who have been working on such  issues for a long time are familiar with the appropriate sources and  prerequisites for successful applications. They may also be able to provide the  moral and emotional support that individuals need during such difficult times,  in addition to the knowledge they can provide. They might be able to assist  people in opening up and practising telling their stories before they are  interviewed and fact-checked by officials.
 

Conclusion
  Since  there is no clear guideline for granting asylum based on sexual identity,  countries' strategies for shortlisting legitimate applications differ. However,  this approach does not produce the desired result, which is why, despite  numerous applications, few asylums are granted.
  Despite  the fact that society's understanding of the LGBTQI community is growing, the  world still has a long way to go. Not everybody can tell the difference between  the colours in this spectrum. Societies must be made aware of these peoples,  who have long fought for the rights to which they are entitled.
  Countries  that have not decriminalised homosexuality or same-sex partnerships may be  subjected to indirect pressure from international meetings, summits, treaties,  and conventions. However, an international law addressing the issues faced by  homosexual asylum seekers is long overdue.

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