Magazine article Forced Migration Review

Canada's Guideline 9: Improving SOGIE Claims Assessment?

Magazine article Forced Migration Review

Canada's Guideline 9: Improving SOGIE Claims Assessment?

Article excerpt

The Immigration and Refugee Board of Canada's 'Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression' (SOGIE Guideline) has been in effect since May 2017. It addresses a number of the recurring concerns about asylum claims based on sexual orientation and gender identity and expression1 (SOGIE) that have arisen in case law, statutory instruments and guidance around the world.2 These concerns, which have been common reasons for refusing SOGIE-based asylum claims in Europe, relate to: qualification as a member of a particular social group for the purposes of the 1951 Refugee Convention; whether applicants can return to live 'discreetly' without risk; whether laws criminalising homosexuality in the applicant's country of origin constitute persecution in themselves; the use of gender and sexual stereotypes to inform asylum decision making; whether sexually explicit evidence is asked for or expected in asylum cases; and late disclosure as the basis for refusal of international protection. These were the subject of Court of Justice of the European Union (CJEU) rulings in 2013 and 2014.3

The Guideline makes many good provisions. Citing a 1993 decision4 the Guideline is clear that individuals presenting asylum and migration SOGIE-based claims are "characterized as a particular social group". It also recognises that the fears of SOGIE asylum seekers' family members may also warrant consideration under the same Refugee Convention ground, which is welcome, if not particularly new to European audiences.

On the issue of discretion, the Guideline asserts that claimants should not be expected to be "discreet" about their SOGIE in order to avoid persecution. It thereby avoids the line of questioning - as in, for example, UK guidance - about the possibility of living discreetly in the country of origin.5

The Guideline is robust on the need to avoid decision making based on stereotypes, offering a good range of examples of potential pitfalls, such as making assumptions that SOGIE applicants will participate in LGBTIQ+6 culture in Canada. This seems to go beyond the 2014 CJEU decision, which precludes decision making that is based on stereotypes but still leaves room for questions based on them, provided these questions are part of an overall balanced line of questioning.

The Guideline positively acknowledges that instances of late disclosure are acceptable and can be justified under certain circumstances. The statement that an individual "may reasonably delay making a claim for refugee protection based on SOGIE" in a number of situations goes further than any other guidance we have seen. Moreover, the Guideline rightly alerts decision makers to the need to consider very carefully any negative weight attached to inconsistencies, including those arising from late disclosure, which may be due to "cultural, psychological or other barriers". The Guideline could have gone further, however, by requiring decision makers to offer asylum claimants the opportunity to clarify any (perceived) inconsistencies or issues affecting their credibility before a decision is issued.

The Guideline furthermore acknowledges that it is unreasonable to expect SOGIE asylum claimants to approach public authorities - in their countries of origin - for protection, especially when laws criminalising non-conforming SOGIE are in place and enforced. The Guideline rightly focuses on the "operational level", rather than what is enshrined in the statutory framework of the country of origin. Moreover, it gives unprecedented attention to the importance of decision makers accepting sur place claims and being sensitive towards the slow processes of self-acceptance many SOGIE asylum seekers experience.

The quality and relevance of country of origin information (COI) has been a recurrent theme in asylum studies, particularly in relation to SOGIE individuals.6 The Guideline acknowledges the problematic use of COI in these cases by recalling that under-reporting of discriminatory or persecutory practices in countries of origin may reflect local attitudes towards, rather than the absence of, such practices. …

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