Human Rights in Ireland

Sabine Jansen and Thomas Spijkerboer recently released their report entitled Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe in which the record of European states is assessed. Sexual orientation is expressly mentioned as a basis for persecution in the Qualification Directive, and in s. 1 of the Refugee Act 1996, and the report did find some cases in which persecution on the basis of sexual orientation was said to ground an application here in Ireland. Overall, the report is an important and interesting assessment of European practice and finds—perhaps somewhat unsurprisingly—that in spite of the Qualification Directive there is a large variation in practice across the states of the European Union and that there are some worrying trends in state responses to claims for asylum on the basis of LGBTI persecution. These include the widespread practice of returning applicants to their countries of origin on the basis that they can protect themselves from persecution by concealing their sexual orientation and that persecution on the basis of gender identity is rarely successful in grounding an application. The particular findings in relation to Ireland are highlighted below the fold.

A number of cases are identified in which the Irish state refused asylum to people who identify as gay even though homosexuality was criminalised in their countries of origins. This was because, it was held, homosexuality was rarely prosecuted. The countries mentioned in the report in this relation are Pakistan and Kenya, even though the report does identify one case of a Kenyan applicant recognised as a refugee on the basis of criminalisation (Chapter 2). In another case of a Kenyan applicant the fact that there was widespread stigmatisation and discrimination of gay people, additional to criminalisation, was taken into account in granting asylum, as this suggested that the applicant would be at risk of persecution if returned to Kenya and that he could not be expected to seek protection from the state authorities. “However”, the report notes, “Irish practice is reported to be inconsistent, because in other cases it was expected to seek police protection in criminalising countries”. In Chapter 4 the report found that as a general matter Ireland often refuses asylum on the basis that if the applicant is “discreet” in his or her country of origin no persecution will arise. That said, inconsistency in Irish practice was also identified here. On p. 35 the report states:

In Ireland, practice also seems inconsistent. In a refugee appeal by a Pakistani gay man, a Tribunal decision referred to country of origin information, which was regarded as indicating that gay men in Pakistan rarely revealed their sexual orientation. The Tribunal Member considered that the applicant had previously concealed his sexual orientation in Pakistan and he could do so again on his return, and found that internal relocation was an option.

In granting the appeal of an Iranian gay man, the Tribunal stated to the contrary: “One of the issues which has been raised is that while it was accepted that it is illegal to be homosexual in Iran, if people were very private or discreet, there was no problem. There can be difficulties with this when this argument is taken to its logical conclusion. I have some doubts whether there could be any obligation on a person to be so deceptive in hiding one’s sexuality or act in a clandestine manner in order to protect themselves that it amounts to a suppression of their sexual orientation. As this State, and its agencies and bodies including this Tribunal, is bound by the European Convention on Human Rights, I would require persuasive authority before imposing such an obligation on any applicant for refugee status, where that application is based on their sexuality.”

The report also found that in some cases Ireland took the position that a person could avoid persecution by relocating internally within the state in question and keeping one’s identity a secret in this new location. The report noted specific instances of this in relation to applicants from Nigeria and Uganda.

In terms of the mode of decision-making, Chapter 6 notes some instances of the use of stereotypical understandings of LGBTI behaviour particularly around numbers of sexual partners and so on in order to substantiate claims of sexual or gender identity. By means of example, the following case is relayed on p. 57 of the report:

In the case of a gay Ugandan male, an Irish decision maker stated “it was put to the applicant that his knowledge of homosexual meeting points, websites, clubs or rallies against homosexuality was very limited, to which he replied that he did not want to campaign for the rights of homosexuals, he was happy with [his partner] and did not need to include other people or find out how they lived. The applicant is a well educated person and it is not credible that as an alleged homosexual man he would show such little interest or knowledge in matters that affect him. This casts doubt upon the credibility of the applicant.”

On p. 61 the following frankly extraordinary finding is relayed:

Some decision-makers reached negative decisions based on their own judgments of an applicant’s demeanour (i.e. whether, in the view of the decision-maker, the applicant presented as a homosexual person). For example, in refusing a refugee appeal by an Algerian gay man, a Tribunal Member stated “from his demeanour (at the appeal) I have no doubt that the applicant advanced the claim that he is a homosexual to enhance his application to be declared to be a refugee”. The basis of the Tribunal Member’s expertise to determine sexual orientation based on demeanour is not addressed.

The report also raises serious concerns about the implications for LGBTI people of being housed in direct provision centres far away from LGBTI NGOs or support groups.

Overall the picture presented of Ireland is not an entirely positive one, although it should be noted that we are not alone in this. It is quite clear, however, that substantial work remains to be done on the ways in which the Irish state perceives of persecution on the basis of sexual orientation and gender identity. To assess one’s sexual identity on the basis of how one presents oneself or whether one frequents gay bars in Dublin is to allow stereotype, rather than fact, to win the day and to expect someone to seek protection from a repressive state or conceal her identity in order to avoid persecution is to more or less entirely undermine the protective nature of the asylum system. If it is found that someone is at risk of persecution then Ireland’s obligation is to protect that person, not to tell him to go home and be “discreet”.

Related Posts

• No Related Post