The process of seeking asylum is difficult for anyone, but sexual and gender minorities fleeing persecution in their home countries can be particularly vulnerable, as two recent decisions by Austrian asylum officers show.
In August, Austrian authorities rejected the asylum application of a 27-year-old Iraqi on grounds that he was behaving “like a girl” and “faking” his homosexuality. One week earlier, an 18-year-old Afghan asylum seeker was denied refugee status because, according to the adjudicating official: “Neither your walk nor behaviour nor clothing indicate in any way you might be homosexual.” (Austrian authorities subsequently distanced themselves from this decision and disciplined the official.)
“Too gay” or “not gay enough” are subjective and absurd criteria, but individuals seeking asylum based on self-declared sexual orientation sometimes find themselves subject to intrusive and inappropriate investigations.
While EU member states are entitled to investigate the validity of individual claims, various outlandish methods have been employed. Czech authorities attempted to measure degrees of sexual arousal. Asylum officers in the United Kingdom, Belgium, the Netherlands, Ireland, and Cyprus have been criticised for asking inappropriate, sexually explicit questions. In the United Kingdom, applicants were pressured to provide sexually explicit photographic and video evidence. Some asylum claims have been rejected on the basis that applicants can “behave discretely” and hence avoid persecution in their countries of origin – yet this is expressly rejected by the UN refugee agency guidance on refugee claims based on sexual orientation or gender identity.
These UN Refugee Agency guidelines, along with several rulings of the European Union’s Court of Justice (CJEU), provide some parameters that immigration officers in EU countries need to respect. Instead of inappropriate medical tests, psychological assessments, invasive interrogations, or sexually explicit evidence, asylum officers should follow these clear guidelines, be knowledgeable about issues facing sexual and gender minorities, and put aside their preconceived and culturally defined notions of how lesbian, gay, bisexual, and transgender people should behave.