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In a major policy shift, the Dutch government’s recognition that lesbian and gay Iranians are a “special group” facing persecution at home and deserving protection in the Netherlands sets an example for other European states of their legal responsibility not to return people to the risk of torture, ill-treatment or execution, Human Rights Watch said today.

Human Rights Watch, which worked closely with the Dutch lesbian and gay organization COC on the issue, applauded this change in policy by the Dutch government.

“The Dutch government has affirmed its international legal obligations in asserting that it will not send gay and lesbian Iranian asylum seekers to a country where they face the risk of torture or execution,” said Scott Long, director of the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch. “The priority now is to ensure that this policy is implemented fully and fairly, and that no one in the Netherlands is sent back to face torture.”

Last year, Dutch authorities imposed a moratorium on deportations of failed LGBT asylum seekers to Iran after reports of executions there for homosexual conduct. But in February, Dutch Immigration Minister Rita Verdonk first announced her intention to lift the moratorium, stating that, “It appears that there are no cases of an execution on the basis of the sole fact that someone is homosexual. ... For homosexual men and women it is not totally impossible to function in society, although they should be wary of coming out of the closet too openly.”

After strong protests from Dutch civil society and international human rights organizations including Human Rights Watch, however, Verdonk reinstated the ban for a further six months, pending a review of conditions in Iran.

Verdonk announced the new policy on October 18. It was accompanied by a 115-page report on the human rights situation in Iran, which extensively cited Human Rights Watch’s research on conditions for LGBT people there. According to Verdonk’s statement, “Iranian homosexual asylum seekers” would no longer have to prove that they individually faced persecution in Iran. Instead, asylum seekers “whose identity, nationality and homosexuality have been confirmed, and for whom there is no counter-indication, do not have to return to Iran.” Verdonk reportedly has cited as possible “counter-indications” having a heterosexual spouse or children.

The decision also extends for six more months an existing ban on returning Iranian Christian asylum seekers, pending further research into their situation in Iran.

“The Dutch government’s decision recognizes the reality of persecution based on sexual orientation in Iran, thus taking this laborious burden of proof off the shoulders of gay or lesbian Iranian asylum seekers,” said Long. “Injustices in application may persist, but the Dutch activists who pushed for this change have won a major victory for openness and fairness – one that other European states can learn from.”

Sweden, which had imposed a similar moratorium on returning LGBT asylum seekers in late 2005, recently announced that it would resume deportations.

Dutch activists continued to urge the government to ensure that the new policy embraces previously rejected lesbian and gay asylum seekers who remain in the Netherlands under the moratorium. They also voiced concern that, in evaluating asylum seekers from a culture where marriage and childbearing are highly valued, authorities should not take either as automatic indicators of heterosexuality. Further, in evaluating the status of asylum seekers’ children, Dutch authorities should not discriminate on the basis of the asylum seekers’ sexual orientation.

The Dutch decision was in compliance with international law. The European Convention on Human Rights prohibits states from deporting individuals to countries where they may be at risk of torture, inhuman or degrading treatment, or punishment. Last year, the European Court of Human Rights ruled that the Netherlands could not proceed with a deportation to Eritrea due to such a risk.

The United Nations Convention against Torture, to which the Netherlands and Sweden are parties, states in article 3 that, “No State shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It also requires that “for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

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