LGBTI Asylum Claims: The Central and Eastern European Perspective

Article excerpt

Recent research indicates that CEE countries still lag far behind the rest of Europe in their asylum practices in relation to LGBTI asylum claims. Low levels of awareness, lack of guidance and cultural hostility are jeopardising asylum seekers' prospects for fair treatment.

Research published in 2011 found that authorities in the Central and Eastern Europe (CEE) region only occasionally have to deal with LGBTI asylum claims. The Fleeing Homophobia project of COC Netherlands and VU University Amsterdam1 found that since 1997 the average number of claims on this ground per year is two in Bulgaria, three or four in the Czech Republic, five or six in Hungary, two or three in Poland and three in Lithuania. In comparison, there were 1,100 LGBTI asylum claims considered between 2008 and 2010 in Belgium. However, there are no official data since the CEE countries do not keep separate statistics on LGBTI claims, let alone disaggregating the statistics with respect to lesbian, gay, bisexual, transgender or intersex status.

All of the CEE countries are signatories of the 1951 Refugee Convention and its 1967 Protocol, and all - except Belarus - are members of the Council of Europe and States Parties to the European Convention of Human Rights (ECHR). Moreover, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia (and in the near future Croatia) are members of the European Union. The 1951 Refugee Convention, EU law and ECHR caselaw all offer protection to asylum seekers and refugees. Yet procedures for granting refugee status to LGBTI asylum seekers seem to be far from consistent in this region of the world.

Moreover, none of the CEE countries has any official guidelines on how to handle LGBTI asylum claims - and there are no specialised national NGOs providing legal and social support for LGBTI asylum seekers in the CEE region. Asylum officials demonstrate low awareness of the specific nature of persecution against LGBTI individuals and often demonstrate biases against this social group. The low number of LGBTI asylum claims in the region may therefore be attributed to the general homophobic and transphobic climate, which makes it far from a dream destination for those persecuted on the basis of their sexual orientation or gender identity.

Criminalisation

A noticeable trend in CEE countries is that LGBTI applicants are, on the whole, only granted asylum if same-sex acts and/or self-identification as lesbian, gay, bisexual or transgender are criminalised in their country of origin. Unfortunately, in most CEE countries, granting a positive asylum decision requires evidence of actual enforcement of such laws, thereby running counter to UNHCR's guidance that laws prohibiting same-sex relations, even if irregularly, rarely or never enforced, could lead to an intolerable predicament for an LGBT person amounting to persecution. The Lithuanian and Polish authorities state that merely the existence of such laws would be considered as persecution; however, practice in Poland is that enforcement of the law is essential for recognition of LGBTI claims.

Credibility assessment

Most CEE countries require evidence over and above the applicant's statement about her or his sexual orientation or gender identity. The Fleeing Homophobia project's final report revealed that many CEE asylum authorities demand medical certificates and other medical documents, usually issued by sexologists, psychologists or psychiatrists.

The obscure practice of 'sexodiagnostic examination' was conducted in the Czech Republic between 2008 and 2010, and included an interview with a sexologist plus so-called 'phallometric testing'2. This practice was not only unnecessary but also contrary to the prohibition of inhuman and degrading treatment and in contravention of the right to privacy. After international criticism by the Fundamental Rights Agency of the European Union, UNHCR and other human rights organisations and institutions,3 the practice of phallometry was abandoned by the Czech authorities. …