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

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.

The first example is about a woman from Sierra Leone who hid a lesbian relationship in her country of origin. The asylum authorities rejected her application, stating that “[s]he can reasonably be expected to continue her private life in the same way as before her departure. The fact that she will have to hide her sexual orientation in the future, does not change this, since she has managed to do so before without problems.” (IND decision, 15 October 2009, nr. 0807-15-1291)

The Highest Administrative Court accepted the argument that “the fact that in the Netherlands the applicant used the possibilities and rights of Dutch society does not imply that she will be unable to accommodate upon return, even if that would require a certain restraint towards society,” and “although sexual orientation is a crucial element of one’s personality, this does not imply that, just because she cannot express her sexual orientation in Sierra Leone publicly, it cannot be expected that she lives her private life in Sierra Leone in the same way as before she left for the Netherlands.” Furthermore it was not established “that in Sierra Leone she has not been able or will not be able to give a meaningful interpretation to her homosexual orientation.” (Judicial Division of the Council of State, 11 May 2011, 201011782/1/V1)

The second example concerns a Palestinian gay from the United Arab Emirates (UAE).  He had secretly engaged in same-sex relationships and his claim was rejected because “he had lived in the UAE for many years without any problems” (the problems he said he had experienced, were not believed) and it was not found plausible that the authorities were aware of his sexual orientation. The appellate court considered “that the asylum authorities should have explained either why expecting the applicant to engage in relationships secretly was not contrary to the policy, or why someone who expresses his homosexuality in the UAE less secretly does not have a well-founded fear of persecution.”  The appeal was allowed (Court Arnhem, 25 October 2011, nr. 11/9826).  However, instead of making a new decision with such an explanation, the asylum authorities appealed from this court decision at the Council of State, reasoning: “Because he moved in homosexual circles, he did not hide his sexual orientation absolutely and he therefore can be expected to express that part of his identity in the same way as before. (…) The fact that he cannot do this in a fully open way, similarly as in the Netherlands, does not mean that the policy that it cannot be expected to hide one’s sexual orientation, is not followed. (…) (homo)sexual relationships specifically belong to the private sphere and no violation of treaty obligations occurs, when such a relationship cannot be exercised (without restrictions) in the public domain.”  The case is still pending.

Both of these applicants came from countries where homosexuality is criminalised, and they both had to hide their sexual orientation constantly and carefully from any straight person they met, but this fact was brushed aside and labeled as a matter of “the public domain.”  In my view, the use of distinctions as public versus private, and as living openly in the Netherlands compared to accommodate in the countries of origin, undermines the good policy rule, which prescribes people shall not be sent back into hiding.  I think these cases also reflect confusion in understanding and defining the concept of the closet, as well as the concept of coming-out.  They introduce different grades of being out or closeted: being fully open is regarded as a Dutch privilege, and a person who moves in homosexual circles in the country of origin, is considered to be not absolutely closeted and could therefore be returned to this country without violating any non-discretion principles.

According to Hathaway and Pobjoy the protected “gay” activities they propose should include: engaging in sexual conduct and seeking and maintaining a relationship, cohabiting with a partner, having the right openly to identify as a member of a sexual minority, to be safeguarded from discrimination in relation to such spheres as securing accommodation, undertaking public service, and engaging in political expression.

Relying on the examples above, I am afraid the Dutch asylum authorities do not share this view, but instead, regard engaging in sexual conduct and seeking and maintaining a relationship as sufficient ingredients for a meaningful expression of sexual orientation.  The other activities listed by Hathaway and Pobjoy, especially the right to openly identify as a member of a sexual minority, cannot be recognised in these cases.

Millbank notes that “[i]t is not within the knowledge of the decision maker…to foresee and categorize everyday activities as either intrinsic to, or marginal from, sexual orientation such that some are protected and others excluded.”  I think that the Dutch examples show that she is right, and that it is a bad idea to trust that asylum authorities will make proper use of such a yardstick.

These Dutch cases are also to a high degree comparable to the case of HJ: “for 16 years HJ had been able to conduct his homosexual activities in Iran without serious detriment to his private life and without that causing him to suppress many aspects of his sexual identity.”

However, the judgement of the United Kingdom Supreme Court in HJ and HT (HJ (Iran) and HT (Cameroon) [2010] UKSC 31) makes it very clear that LGB persons should not be asked to hide the membership of the particular social group they belong to, or to live discreetly to avoid the harm which would come over them if they were to live openly.  In other words: “having to live a lie every day of their life,” like HJ, as well as the applicants in the Dutch examples did, is not acceptable.

Lord Rodger cites McHugh and Kirby JJ (High Court of Australia, Applicants S396/2002 and S395/2002 v. Minister for Immigration and Ethnic Affairs (2003) 216 CLR 473) to stress that proper attention should be given to what might happen to the appellants if they lived openly in the same way as heterosexual people in the country of origin live: “if a person has a well-founded fear that he would suffer persecution on being returned to his country of nationality if he were to live openly as a gay man, then he is to be regarded as a refugee for purposes of the Convention.”  This is the crucial question: What might happen if the applicant were to live openly?

Like Hathaway and Pobjoy, Verdirame does not seem to find this is the crucial question.  He suggests that the protected activities should be “those without which a man cannot fulfill his sexual and sentimental aspirations.”  Verdirame cites the clear explanation which Lord Rodger gives of what discretion practically means: “At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man.  He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised.”

However, Verdirame does not believe that deprivation of any of the activities described by Lord Rodger would either cause endogenous harm in the average person or preclude self-fulfilment in a dignified manner.  Save for those living in the West End of London or Manhattan, open expressions of “affection for another man which went beyond what would be acceptable behaviour on the part of a straight man” remain rare in the public sphere even in Western countries.  These are not harm-inducing or authenticity threatening modifications to social conduct, but reasonably tolerable inconveniences.

I agree with the first part of this statement: in Amsterdam homophobic violence seems to be on the rise, and open expressions of affection for another woman or man of the same sex are less common than they were some decades ago.  And I also agree that this is extremely inconvenient (and actually quite disturbing instead of “reasonably tolerable”).  However, one cannot compare these type of “inconveniencies” in Western countries with the situation in countries where homosexuality is criminalised, and where one risks persecution against which no state protection can be found.  This is what Verdirame seems to ignore.

Meanwhile, we try to convince the Dutch authorities that the above-described cases are not handled in the right way.  The fact that these applicants managed – in deep secret – to engage in same-sex relationships, does not mean they were “out” and might as well be sent back to that (in my opinion “closeted”) situation.  Instead of focusing on what applicants are entitled to do in expressing their sexual orientation, we need a future-oriented approach, based on the well-foundedness of the fear once the sexual orientation becomes known in the country of origin, as well as on equal treatment vis-à-vis straight people in that society.  In addition, I can inform you that in several other European states the situation regarding an understanding of what “discretion” in this context means, is even worse than in the Netherlands. I would appreciate it if Messrs. Hathaway, Pobjoy, and Verdirame would take this reality into account.