Judging Homosexuality, Granting Asylum

On Oct 3, 2016 Books and Ideas published this article: Asylum applications on the grounds of sexual orientation, although uncommon, raise questions that are relevant to any asylum claim: according to what criteria and what level of persecution are “genuine” refugees distinguished from “bogus” ones? And what is meant by this policy of proof?

“To be honest, he didn’t look gay at all,” commented a rapporteur of the National Court of Asylum (Cour nationale du droit d’asile), standing in front of the coffee machine during a break between two hearings. Minutes earlier he had been listening to a young man from Pakistan – whose file he had reviewed beforehand – who was seeking refugee status on the grounds of his persecution as a homosexual in his country of origin. Assisted by an interpreter and advised by a lawyer, this asylum seeker had first heard the reporter recommend that his claim be rejected before answering questions from the three judges of the bench. Clearly, he had failed to convince them, and they suspected him –as one of the judges later confirmed –of not being a “true” homosexual.

Since the 1980s and the development of increasingly restrictive immigration policies, asylum seekers have systematically been suspected of misusing the asylum procedure for purposes of “economic migration”, a far cry from the criteria contained in the definition of the term “refugee” as established in the Geneva Convention. So there are said to be “genuine” refugees, legally entitled to seek asylum in France, and “bogus” claimants who must be tracked down. This dichotomy has been at the centre of the everyday judgment practices that have become established in the National Court of Asylum – the administrative court responsible for assessing appeals made against the decisions of the French Office for the Protection of Refugees and Stateless People (Office français de protection des réfugiés et apatrides – OFPRA) by asylum seekers whose initial claim has been dismissed.

The particularity of asylum claims based on sexual orientation lies in the fact that the judges focus less on any actual persecution or fears of persecution than on the veracity of a claimant’s homosexuality. Once this has been established, persecution no longer has to be proven. It is therefore the ascertainment of homosexuality [1] that opens the doors to asylum. And yet, what are the elements that enable sexual orientation to be determined? When a person’s sexuality comes under scrutiny, the judgment methods used are often called into question. Although these cases are infrequent, they lead to a broader reflection on the procedures for administering evidence in asylum claims.

Read more at: Judging Homosexuality, Granting Asylum – Books & ideas

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