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NYU JILP Vol. 44 No. 2

Follow-up to NYU JILP Symposium on LGBT Asylum and Refugee Law

by NYU Journal of International Law and Politics

In response to the online symposium on LGBT asylum and refugee law held two weeks ago by the NYU Journal of International Law & Politics and Opinio Juris, the Journal received several additional pieces of commentary. The contributions below specifically tie to Professor Ryan Goodman’s article, Asylum and the Concealment of Sexual Orientation, which also appears in issue 44:2:

“To counteract some of these concerns, [Hathaway & Pobjoy] place great faith in international human rights and anti-discrimination law pertaining to LGBT rights to constrain decision-makers’ reliance on their own subjectimve understandings of sexuality.  However, it is unclear that international law can bear such a weight in this particular context.” Goodman, 44 N.Y.U. J. Int’l. L. & Pol. 407, at 441 (2012):

Thank you again to Opinio Juris for its critical support on this important issue, and also to all of the authors.  Below are four new contributions to the dialogue by:

 

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Two remarks on queer law and queer politics: Thomas Spijkerboer Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

 

Thomas Spijkerboer is professor of migration law at VU University Amsterdam. His publications in English include Gender and Refugee Status (Ashgate, 2000), Women and Immigration Law (Routledge, 2007, edited volume with Sarah van Walsum), and Fleeing Homophobia (VU University Amsterdam/COC Nederland, 2011, with Sabine Jansen).

 

A couple of weeks ago, a friend of mine who works for the Dutch asylum authorities told me an example of why he feels uneasy about the Dutch asylum policy towards gay Iraqi asylum seekers.  The short version, which is sufficient for our purposes, is that a man was badly beaten because he was (correctly) thought to be gay because he wore very tight jeans.  Even from this short summary, it is clear that this man was subjected to persecution on account of his being gay.  Such past persecution as a result of membership of a particular social group gives rise to a presumption of a well-founded fear of being persecuted in the future; state practice to this effect has been codified in Article 4(4) of EU Directive 2004/83.

The Hathaway/Pobjoy article gives ample arguments to deny this claim, allowing this man to return to a situation in which he has a well-founded fear of being persecuted on account of being gay.  The reason why they argue that this claim has to be denied is because “[w]here risk accrues only by virtue of an applicant having engaged in an activity no more than peripherally associated with sexual identity – including where risk arises from an imputation of sexual identity derived solely from having engaged in such activity – it cannot be reasonably said to be a risk that arises “ ‘for reasons of’ sexual orientation.”  Without any doubt, dressing in tight jeans is in the same category as the examples taken from Lord Rodgers’ statement which apparently so turns on Hathaway and Pobjoy: attending Kylie concerts, drinking exotically colored drinks, and doing boy talk.

The Hathaway/Pobjoy argument leads to denial of a refugee claim, which clearly should not be denied.  Something is fundamentally wrong with their argument.  I posit that their article has two problems.  The first is an incorrect application of refugee law doctrine – surprising, because Hathaway’s 1991 book is such an impressive doctrinal analysis.  The second consists of the fantasy (current among legal scholars, therefore less surprising) that law and politics can be meaningfully separated.

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Jenni Millbank Reflects on Panel 3 and Responds to Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

 

Jenni Millbank is Professor of Law at University of Technology Sydney.  She has pioneered work addressing the claims of lesbian, gay, bisexual and transgender asylum seekers and interrogating how their claims are understood (and misunderstood) in the refugee adjudication process. With Catherine Dauvergne, Professor Millbank has undertaken a series of research projects involving long term comparative analysis of sexuality and gender claims from Australia, the UK, Canada, New Zealand and the USA, which they are currently extending to include several European jurisdictions.

 

In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation.  The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”  The authors argue to the contrary that refugee law should “draw a line” so as to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical.  I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice.

Reasoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity, is one of, if not the, most significant and resilient barrier to the fair adjudication of sexual orientation based refugee claims worldwide to date.  In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT.  The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.  The Supreme Court largely approved the majority approach taken in the High Court of Australia decision in S395 (2003) but condemned discretion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights.  Lord Hope stated that “[gay people] are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”  While Lord Rodger held that

“[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts.  No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.  Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution.  Such an assumption about gay men and lesbian women is equally unacceptable.”

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Discretion in the Netherlands: Sabine Jansen Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

 

Sabine Jansen is a lawyer and co-author of the research report Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, COC Netherlands/VU University Amsterdam, September 2011.

 

In their article Hathaway and Pobjoy propose to draw a line between protected and unprotected “gay” activities in refugee claims.  Although they acknowledge that there can be no single, universally acceptable definition of such activities, they conclude that there are some activities, loosely associated with sexual identity that are not reasonably required to reveal or express an individual’s sexual identity.

I do not think such a distinction in different types of “gay” activities is a good idea, and I will illustrate my point with two recent examples of Dutch legal practice.

Since May 2007, the Dutch Aliens Circular states: “People with a homosexual preference are not required to hide this preference upon return in the country of origin” (Vc C2/2.10.2). The Secretary of State added later that this means that in the assessment of an asylum claim, the possibility to conceal one’s sexual orientation should play no role. (Letter of the Secretary of State Albayrak to COC Netherlands, 12 February 2009)

However, during the Fleeing Homophobia research, we found that in legal practice, “discretion reasoning” still occurs, and thus Dutch practice is contrary to Dutch policy.

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Queer Cases, Great Law: S. Chelvan Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

 

S. Chelvan is a Barrister at No5 Chambers, London; a PhD candidate in law at King’s College London; and a UK Country Expert and External Expert to the Advisory Board for the Fleeing Homophobia project.  He is known as “a doyen of immigration cases involving issues of sexual identity.” (Chambers UK 2012).


An Englishman, Irishman and a Scotsman walk into a bar.  The barman asks the Scotsman . . . .”

“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.”

What is the similarity, and then the difference, between the two passages above?  The similarity is that most readers would accept that they each illustrate an example of British humour.  The difference?  Some observers read the second reference, taken from § 78 of Lord Rodger’s reasoning in the U.K. Supreme Court case of HJ, not to be illustrative of anything linked to humour, but rather a blatant attack on fundamental principles underlying refugee law.  I align myself to the first scenario and aim in this short note to analyse why concentrating on excluding certain categories of conduct from protection misses the point.

Kendall (2003 citing Mahoney J.A. in Thavakaran), rejects an approach where the “onus for removing the fear of persecution [is] on the victim, rather than the perpetrator” (see also Johnson, 2007: 107 fn. 30).  What is at the core of the reasoning of the U.K. Supreme Court is not a right to what some observers may describe as “peripheral conduct”, but a right not to be persecuted, for reasons of sexual identity.   Verdirame’s limitation on the conduct of a gay man, which went “beyond” what a straight man can exercise in the public sphere, is echoed in an earlier 2005 UK Asylum and Immigration Tribunal decision of AT (Homosexuals: need for discretion?) Iran [2005] UKAIT 00119.  The AIT held, at § 28, in one of its most controversial determinations that resulted in complaints from the U.K. NGO’s UKLGIG and Stonewall, that:

“Whether there is or is not a ‘core right’ for persons of any sexual orientation to conduct themselves with discretion in their public sexual practices is not something we need in our view decide, though we should have thought that such discretion was part of the ordinary consensus of civilized mankind (and still more so of a number of races considered ‘uncivilized,’ so far as they still exist).  The reason is that this appellant on our findings of fact, and his own expressed intentions for the future, has never shown the slightest wish to engage in homosexual conduct in any way in the face of the public or the authorities, such as might expose him to any real risk, on the background evidence, on return to Iran. Whether he has or does not have a ‘core right’ to go in for that sort of thing, his return will not expose him either to Convention persecution or ill-treatment.”

There are only three examples I can call upon to illustrate a rare and clearly ignorant approach to the exercise of public sex, being centrally connected with a refugee claim in the U.K.  In XY (Iran) (2008), counsel for the appellant argued to the England and Wales Court of Appeal not to remove his gay client because he would be returned to a life of sex in the public bath houses and he would not be able to have sex in the family home [§ 14].  Secondly, the stance of the U.K. Home Office for many years with respect to the alleged existence of cruising in a Tehran park, where men were able to pick up other men for sex, was that this indicated an ability to be gay in Iran, and therefore gay men were not refugees.   The third, and final example, is in the case of Hylton [2003] EWHC  1992 (Admin), where Counsel for the U.K. Home Office submitted that the risk group in Jamaica was limited to “a homosexual prostitute or homosexuals who cruise in particular areas” [§ 11] (position reversed in DW (2005) (AIT)).

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Rt. Hon. Sir Richard Buxton Responds to Jenni Millbank & Guglielmo Verdirame

by NYU Journal of International Law and Politics

Panel 3 of the NYU JILP Vol. 44:2 Online Symposium

 

Rt. Hon. Sir Richard Buxton is formerly Lord Justice of Appeal, Court of Appeal for England & Wales.

 

The right of lesbians and gay men to live freely, openly, and on equal terms is a noble – indeed in the view of liberal western society – an obvious and unavoidable aspiration.  Nor, to adapt the language of Millbank’s title, could the enforcement of that right be bad law in the national jurisprudence of any such society.   But we are concerned in this symposium with a less trite and obvious question: the extent to which that principle can be enforced through the international law of refugee protection.  As Verdirame importantly observes, protections imposed by that law imply criticism of the national law of the state of origin.  Until recently, therefore, international protection was limited to cases where a member of a recognised PSG (to adopt Millbank’s notation) was threatened in the state of origin, and by reason of her membership of the PSG, with persecution: defined as harm of an intensity or duration that the person persecuted could not reasonably be expected to tolerate.

It was that law that the English Court of Appeal applied in its decisions in Z v. Secretary of State and J v. Secretary of State, which are heavily criticized in this symposium.  A member of a PSG (in casu, a person of gay orientation) would be entitled to international protection if the steps that she had to take to avoid exogenous persecution would be sufficiently onerous in moral and emotional terms as to retain her in a condition of, albeit now endogenous, persecution.  The English Supreme Court in HJ(Iran) rejected that approach, and in so doing greatly widened the protection afforded by international law, at least as that law is understood in England, to persons of gay orientation and, by necessary implication, to members of any other PSG.

As the present writer explains in his original contribution to the symposium, that revolution was achieved by accepting the submission of the United High Commissioner for Refugees (who, regrettably, is not providing his wisdom to this symposium) that the basis of international protection was not, as hitherto understood, to save the refugee from persecution (as defined above) by reason of her membership of a PSG.   Rather, international refugee law protected the status of the members of any PSG that it recognised.   That meant that any interference with the characteristic behaviour of a member of a PSG, an attack on claimant’s status as such a member, would mandate international protection, even if the interference was not intolerable in the persecutory sense.

That has at least two implications for the issues raised in Panel 3.

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Dr. Hugo Storey Responds to John Tobin

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

 

Dr. Hugo Storey[1] is a Senior Judge of the U.K. Upper Tribunal Immigration and Asylum Chamber

 

In the limited time and space, may I offer to following observations for Panel 2:

(1) The S395 and HJ (Iran) cases are truly landmark cases. Hathaway and Pobjoy’s (H and P) article is equally a truly landmark article.  And the high-quality response pieces sparked by their article are extremely important, not just for the issue of the proper approach to LGBTI claims, but for refugee jurisprudence as a whole, in particular its approach to the issue of behaviour modification.

(2) Framing matters this way helps perhaps remind ourselves that in general terms it would seem desirable if claims involving the different kinds of protected characteristics could be dealt with in pari materiae – so that what is said about sexual orientation cases also holds true for religious orientation and political orientation etc. cases.  It may be that in some limited respects each type of case is sui generis, indeed, both H and P (p.110)  and Jenni Millbank (p.119) emphasise this and I briefly allude to it below. But in general terms the meaning of “being persecuted” etc. cannot vary from subject-matter to subject-matter.

(3) This point should alert us to the fact that we had best not assume that S395 and HJ (Iran) are the last word. Quite soon the Court of Justice of the European Union (CJEU) will give its judgment on a preliminary reference from the Bundesverwaltungsgericht (Germany) in Federal Republic of Germany v. Y (Case C-71/11). The CJEU was originally seized of another German case which directly concerned the gay concealment issues, but this fell way (as noted by H and P, n.33). But Case C-71/11 has just now had an oral hearing and it raises the concealment/discretion/abstinence issue in the (arguably analogous) context of a religious persecution case involving two Ahmadis from Pakistan. The first question the CJEU is asked is whether a violation of religious freedom sufficiently severe to give rise to persecution “arises only if the core area of that religious freedom is adversely affected”?  One further question asked is whether there can be acts of persecution within the meaning of Article 9(1)(a) of Directive 2004/83/EC (which defines persecution) “ in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice?” A final question asks whether persecution arises if it is established that the applicant will carry out certain religious practices –other than those falling within the core area – after returning to the country of origin, even though these will give rise to a risk to body, life or physical freedom, “or is the applicant to be expected to abstain from engaging in such religious practices in the future?” The answers of the CJEU will, of course, be legally binding throughout the 29 Member States of the EU – including on the UK Supreme Court.  Immediately it can be seen that several of the issues that animate the current debate, that of the use of  “binaries” such as “core/periphery” and the employment of some kind of “reasonable expectation” test in particular – may very likely be tackled by the CJEU.[2]

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John Tobin Reflects on Panel 2

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

 

John Tobin is an Associate Professor at Melbourne Law School where he teaches and researches in the area of human rights. In 2011 he was a Senior Scholar in Residence at the NYU Center for Human Rights and Global Justice. His book, The Right to Health in International Law, has just been released by Oxford University Press.

 

Using human rights in refugee law – The need to proceed with caution

A well-founded fear of being persecuted is a core requirement for a finding of refugee status under the Refugee Convention.[1] Although the Refugee Convention does not define persecution and there is no universally accepted definition,[2] most definitions tend to stress the need for serious harm and link persecution in some way to a violation of human rights.  For example, according to the UNHCR Guidebook a threat to life or freedom or ‘other serious violations of human rights’ would constitute persecution.[3] The EC Council Directive 2004/83/EC provides that acts of persecution must be ‘sufficiently serious by their nature or repetition so as to constitute a severe violation of basic human rights’.[4] And for Hathaway and Pobjoy, who affirm the test originally developed by Hathaway in 1991, and which has been widely cited with approval since, it is ‘necessary to show the “sustained or systemic violation of basic or core human rights entitlements demonstrative of a failure of state protection.”[5]

The theme common to each of these approaches is the idea of a serious or severe violation of a basic or core human right.   Although this idea has become axiomatic within refugee law, it is problematic when viewed from the prism of a human rights jurist.  For example, in human rights law, a violation will occur where there has been a failure of state protection.[6] Thus, it makes no sense to speak of a human rights violation and a failure of state protection.[7] And even if a human rights violation is taken to be demonstrative of a failure of state protection (which is true in human rights discourse), the Refugee Convention speaks of a state’s inability or unwillingness to protect an applicant.  But the inability of a State to protect a human right is not necessarily a violation of a human right.[8] It will depend on the reasonableness of a state’s actions in responding to an interference with a right. So does this mean that the Refugee Convention demands surrogate protection for an applicant in circumstances where the state of origin has not actually violated a human right?   If so, this would mean that refugee status would be possible in the absence of a human rights violation by a state.[9]

But if human rights remain central to an understanding of persecution, what constitutes a serious or severe violation of a human right?  Is not every violation of a human right serious?  And what is a basic, fundamental or core human right?  Are not all human rights recognized in international treaties said to be fundamental and are not all human rights interdependent and indivisible?[10] And to which human rights do the various tests for persecution refer – all those recognized under international treaties and customary international law or only certain kinds of rights? And how is the meaning of each right to be assessed?  Are developments in regional and domestic human rights systems relevant to the interpretation of international human rights and if so to what extent?

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Bojana Asanovic Responds to John Tobin

by NYU Journal of International Law and Politics

Panel 2 of the NYU JILP Vol. 44:2 Online Symposium

 

Bojana Asanovic is a barrister at Lamb Building, Chambers of Ami Feder in London. She specialises in immigration, asylum and human rights law.

 

This note examines the way in which asylum claims based on sexual identity are determined as a flagrant breach of Article 8 ECHR after HJ and HT, UKSC (2010).  I will take the case of DBN v the United Kingdom, (26550/10) ECHR 192 (2011) as its starting point, and follow with a brief look at potential consequences of an evidentiary approach that places importance on the need for asylum seekers to prove psychological harm in Article 8 cases.

On January 27, 2011, the European Court of Human Rights (‘ECtHR’) communicated the case of DBN v. the United Kingdom, which concerned a lesbian from Zimbabwe who claimed violations of Articles 3 and 8 of the European Convention on Human Rights.[1] This case post-dated HJ and HT in the Supreme Court.  In D.B.N., the question to the parties in relation to Article 8 was phrased thus:

“Is there a real risk that the applicant’s removal to Zimbabwe would amount to a flagrant breach of the applicant’s rights to private life under Article 8 of the Convention (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?”[2]

The applicant argued that in the context of systematic, virulent, state-sponsored homophobic propaganda with evidence of discrimination and harassment by the police, it was not possible to enjoy a protected right to privacy because she would be forced to live in fear and secrecy as a result of her sexual identity.

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Lucy Yeatman Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium


Lucy Yeatman is a lecturer in law at the University of Greenwich, teaching Family Law and Human Rights Law. Her research focuses on same-sex parents and the law, and LGBTI asylum seekers and refugees.


Hathaway and Pobjoy argue that the decisions in S395 and HJ and HT achieved the right result for the asylum seekers involved, but for the wrong reasons.  They go on to argue that there were two ways in which the reasoning in both cases was flawed: first, in the reliance on the threat of exogenous harm which could not be objectively established and in consequence not giving due consideration to the threat of endogenous harm caused by enforced concealment; and second, in the failure to place any kind of limitation on the type of behaviour associated with sexual orientation that might give rise to protection under the Refugee Convention.  As John Tobin quite rightly concludes, “credit is due to Hathaway and Pobjoy for seeking to develop a stronger jurisprudential foundation on which to base claims for refugee status of GLBTI applicants” and he welcomes the emphasis they place on psychological harm as an important contribution to a “shift in the narrative of persecution.”  This paper will however object to the approach taken by Hathaway and Pobjoy for five reasons.

First, a distinction is drawn between requiring someone to return home and conceal their sexual orientation, and finding that if returned home, they will “for seclusion.”  They accept that there can be no basis in refugee law for requiring concealment, but argue that in both S395 and HJ and HT the appellants were not being required to conceal their sexual orientation but were opting to do so.  The UKSC quite rightly rejected this distinction,[1] as the asylum seeker is not choosing to conceal their identity.  In fact, by virtue of having sought asylum in a country that recognises the rights of lesbian and gay people to live free from discrimination, the claimant is quite clearly opting not to conceal their identity.  If their asylum claim fails and they are returned home then this is not a choice.

Second, Hathaway and Pobjoy go on to argue, that where a person opts for concealment, it is not possible to identify a risk of persecutory harm.   The UKSC directly addressed this point by requiring examination of the reasons for concealment.  Lord Rodger was satisfied that if a claimant would conceal the fact he is gay in order to avoid persecution, then this is prima facie an indication that there is a threat of persecution.[2] Hathaway and Pobjoy describe this approach as “riding roughshod over their responsibility to identify the risk of persecutory harm” because refugee law requires an objective analysis of a risk of harm.   Yet at no point does the UKSC suggest that this is a purely subjective test, the judgments of their Lordships clearly require evidence that if the claimant were “out” they would risk persecution.  The objective test is there.  Yet Hathaway and Pobjoy’s approach suggests that concealing your sexual orientation is a simple process that involves easily made modification of behaviour; otherwise they would surely recognise that a life of concealment always carries with it the risk of discovery.   In fact the story of HT is a good example of this.  He managed to live discreetly for many years, before a lack of extreme caution exposed him to his neighbours and to a viscous attack that left him hospitalised and vulnerable to further violence.v If a person is hiding their true identity due to a fear of persecution, if that fear is well-founded, then they are always at risk of exposure and persecution.

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Connie Oxford Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

 

Connie Oxford is Assistant Professor of Gender and Women’s Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press.

 

In Queer Cases Make Bad Law, James C. Hathaway and Jason Pobjoy criticize decisions of the High Court of Australia and the Supreme Court of the United Kingdom regarding two queer asylum cases, respectively, S395[1] and HJ and HT.[2] They argue that while in each case, the applicants were rightfully granted asylum, each Court erred in its legal logic, and therefore, strayed from “accepted refugee doctrine.”  Their critique rests on a model of persecution that differentiates the physical realm of harm (exogenous) from psychological harm (endogenous).  They conclude that the two gay Bangladeshi men granted asylum in Australia and the gay Iranian and Cameroonian men granted asylum in the UK had “no well-founded fear of exogenous harms” even though this was the basis of the Courts’ favorable judgments.  Conversely, the Courts were silent on the claimants’ experiences of “severe psychological harm” that instead, according to Hathaway and Pobjoy, should have formed the logic of these decisions.  In this brief response, I address the idea that gay men who “opt for seclusion” face only a well-founded fear of endogenous harm and not one of exogenous harm.

The lynchpin of Hathaway and Pobjoy’s argument is a dichotomous classification of persecution for gay men.[3] They designate outward bodily harm, such as “prosecution or beatings” as exogenous and inward psychological harm that “follow[s] from self-repression (anxiety, paranoia, disassociation, or worse)” as endogenous.  Although they do not state explicitly that all forms of persecution are necessarily one or the other, the examples offered imply that the harm itself is mutually exclusive to the body or mind in their taxonomy of persecution.  Nor do they suggest whether the exogenous/endogenous binary is specific to queer cases or applicable to claims of persecution based on other grounds such as religion or political opinion that they compare to social group.  I take issue with two implications of the exogenous/endogenous model.

First, I find problematic the binary logic embedded in the exogenous/endogenous framework for ascertaining harm.  This is not to say that persecution cannot be solely physical or psychological at times, but rather it is not always exogenous or endogenous.  Whether Hathaway and Pobjoy are advancing the notion that harm must always be one or the other is not clear, and if this is their argument, then it certainly does not stand in the face of empirical examples of torture.  For example, studies of torture survivors show that psychological trauma, such as Post Traumatic Stress Disorder (PTSD), is routinely constitutive of (rather than merely a result of) physical harm.[4] The second implication of their argument that I want to address is the ways in which the exogenous/endogenous binary is applied to queer cases.

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Queer Cases Make Pretty Good Law – at Least in the United States: Victoria Neilson Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium


Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor at New York University School of Law.

 

Reading Queer Cases Make Bad Law, by James C. Hathaway and Jason Pobjoy,  (hereinafter  “Hathaway/Pobjoy article”) my first reaction is to feel fortunate that I practice asylum law in the United States and not in Australia, the U.K., or other European countries that have imposed a duty of so-called “discretion” on asylum seekers to avoid harm.  U.S. courts have rejected the notion that a gay man should be saddled “with the Hobson’s choice of. . . either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy.  Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).  And in the recently released United States Citizenship and Immigration Services Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims, USCIS instructs asylum and refugee officers that:

Being compelled to abandon or conceal one’s sexual orientation or gender identity, where this is instigated or condoned by the state, may amount to persecution.  LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in order to avoid the severe consequences of such exposure — including the risk of incurring harsh criminal penalties, arbitrary arrests, physical and sexual violence, dismissal from employment, and societal disapproval.   (LGBTI module at 20-21).

While asylum law in the United States is by no means perfect, I think that the subjects of the Hathaway/Pobjoy article, HJ and HT, could have won asylum here under the existing legal framework.  Thus, rather than re-envision asylum and refugee law as the article suggests, to focus on the “endogenous” harm that comes from leading a forced life of secrecy and suppression, I suggest that European countries look to the United States as a model for analyzing these types of cases.

Under U.S. asylum law, applicants are most likely to be successful if they can prove past persecution.  Doing so creates a presumption of future persecution, shifting the burden to the government to prove that the applicant will not face further persecution.  As a practical matter, the government rarely argues against granting asylum where past persecution has been established.

In situations where the applicant has not suffered persecution in the past, the inquiry is entirely forward-looking.  Does the applicant have a well-founded fear of future persecution?  It is then incumbent upon the applicant to demonstrate either that he or she will be singled out for future persecution or that there is a pattern and practice of persecution of those that share the applicant’s protected characteristic. 8 C.F.R. 208.13(b)(2).

Cases based on a pattern and practice argument are decided almost entirely on country conditions documentation.  U.S. courts have been reluctant to grant “pattern and practice” cases, probably because of the obvious “floodgates” concern that if one applicant with a particular protected characteristic can win asylum based solely on pattern and practice, then presumably all applicants who share that characteristic could also win.  Thus, gay applicants have lost “pattern and practice” claims where evidence of treatment of LGBT people is mixed, such as claims from Peru (Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)), Zimbabwe, (Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005)), and Mexico (Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011)).

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