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.
