Academic journal article American University International Law Review

Human Rights in Times of Crisis: Article 3 Prevails - Examining How Lgbtq Asylum Seekers in the European Union Are Denied Equal Protection of Law

Academic journal article American University International Law Review

Human Rights in Times of Crisis: Article 3 Prevails - Examining How Lgbtq Asylum Seekers in the European Union Are Denied Equal Protection of Law

Article excerpt


In November of 2016, mattresses were scarce in Sweden's IKEA headquarters.1 At first glance it appeared Christmas shopping was already under way, but, in fact, these mattresses went to refugees.2 The migration crisis in Europe has captivated the world's attention and concern.3 In 2015 over one million migrants reached Europe constituting the largest mass migration since the end of the Second World War.4 This figure is a four-fold increase from 2014 caused mainly by Syrians fleeing civil war.5 This, amongst other conflicts in the MENA region, is noted as the principle reason why migrants and refugees are fleeing their home countries with hopes of reaching Europe.6 A less well-known factor is the social norms and persecuting tendencies of sovereign governments and private citizens against minority social groups.7 Lesbian, gay, bisexual, transgender, and queer ("LGBTQ") individuals face persecution and discrimination by sovereign governments throughout the MENA, Slavic, and Balkan regions, as well as from private citizens based on societal norms.8 This unfortunate reality incentivizes LGBTQ individuals to seek asylum in Europe even in the absence of civil war and widespread conflict.9

Individuals seeking asylum and refugee status in Europe face different processes and subsequent outcomes depending on their country of origin and personal circumstances.10 Economic migrants are not entitled to protection, asylum, or refugee status in European Union ("EU") Member States.11 By contrast, individuals from wartorn countries are afforded significantly increased possibilities of asylum, work authorization, and residency.12 Thus, the asylum process in the EU is unacceptably discriminatory because it grants asylum and refugee status to certain groups while denying it to others.13 LGBTQ asylum seekers are amongst the groups adversely affected.14 Moreover, LGBTQ asylees in Europe face discrimination and degrading circumstances over a broad range of contexts both legal and social within the context of their asylum seeking.15

This Comment argues that the laws, processes, and procedures that EU Member States utilize in the immigration and asylum application process, exemplified by those employed by Germany, deny LGBTQ individuals equal protection under the law, and violate Article 3 of the European Convention on Human Rights (the "Convention").16 Section II of this Comment provides an overview of the German asylum system and the applicable bodies of law that govern it, focusing specifically on asylees from the MENA, Baltic and Slavic regions.17 Section II also lays out Article 3 of the Convention's standard of review, and demonstrates how the European Court of Human Rights (the "Court") interprets this standard with case law. Section III analyzes the legal and societal functions of the German asylum process, explaining how, as applied to LGBTQ asylum seekers, it violates Article 3.18 Section IV recommends three reforms.19 These recommendations concern application criteria in the asylum process, conditions in accommodation centers, and policy reform. They are designed to eliminate discriminatory practices in the asylum process regarding LGBTQ asylees and provide more legal protections representative of the values and rights protected by Article 3.


Throughout the MENA, Balkan, and Slavic regions, members of the LGBTQ community face widespread discrimination from both the state and private citizens. In many cases, these individuals face criminal charges because of their sexual orientation.20 Consequently, LGBTQ individuals began fleeing to Europe years before the onset of widespread conflict and social upheaval prompted the current mass migration.21 New anti-LGBTQ legislation and the spread of terrorist networks have caused the number of LGBTQ individuals fleeing to Europe to rise.22 LGBTQ asylum seekers find themselves in many different EU Member States, but in 2015 an overwhelming number arrived in Germany. …

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