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.
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
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.
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
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.
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.