Cheng Book Roundtable: How to Assess the Value of International Legal Theory

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

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.

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

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)).

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

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.

Lucy Yeatman Responds to James Hathaway & Jason Pobjoy

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.

Connie Oxford Responds to James Hathaway & Jason Pobjoy

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.

David John Frank Responds to James Hathaway & Jason Pobjoy

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium David John Frank is Professor of Sociology and, by courtesy, Education at the University of California, Irvine. He is interested in the cultural infrastructure of world society, especially as it changes over time and varies across national contexts. It makes some sense to justify LGBT asylum claims in terms of the traumatic...