Do gay asylum seekers have to feel shame?
Norwegian immigration authorities are on the lookout for shame, taboo and stigma when they assess the sexual orientation of asylum seekers. This practice is problematic and may violate human rights, says a researcher.
“The immigration authorities are looking for shame”. Ill: Colourbox
The credibility assessment has always been challenging for people seeking protection because of their sexual orientation.
Right up until 2011, for example, the Chechen authorities used so-called phallometric testing. These tests are meant to demonstrate an asylum seeker’s sexual arousal; pornography is shown to determine whether the person is gay or not.
“In UN guidelines, the High Commissioner for Refugees (UNHCR) has pointed out that medical testing or images of sexual acts are not well-suited to prove a person’s sexual orientation,” says Andrea Gustavsson.
Andrea Gustavsson has researched credibility assessments in asylum cases based on sexual orientation. She wanted to explore how the Norwegian immigration authorities perform the credibility assessment in practice. She also wanted to examine whether the Norwegian practice complies with international guidelines and human rights. This work was part of the research project Gender Identity and Sexual Orientation in International and National Law at the Faculty of Law at the University of Oslo.
From behaviour to identity
The right of LGBTI people to asylum has been discussed in refugee law for several years, says Gustavsson. LGBTI is a collective term for lesbian, gay, bisexual, transgender and intersex people. Over the past few years, more and more countries have accepted that these people may be entitled to asylum under the Refugee Convention. Previously, Gustavsson explains, employees of the Directorate of Immigration (UDI) or the Immigration Appeals Board (UNE) often did not address the credibility of the sexual orientation stated by asylum seekers.
“If an asylum seeker was able to conceal his sexual orientation in his or her home country, the person was not considered to be entitled to asylum. In practice, the Norwegian authorities were saying that sexual minorities had to live in the closet in a country where they would be persecuted if their sexual orientation became known,” says Gustavsson.
The year 2012 saw a ruling by the Norwegian Supreme Court on the rights of gay people to asylum. This ruling stated that one could not require LGBTI people to live in the closet to avoid persecution in their home country. This ruling has led to an updating of the credibility assessment, because the authorities now have to decide much more often whether asylum seekers really are LGBTI or not. There has been a similar development in other countries.
“Prior to that, the focus was usually on risks, such as whether an asylum seeker could avoid being discovered in his or her home country, while after the ruling, credibility is to be considered more often. This has resulted in a shift in focus from behaviour to the credibility of the person’s sexual identity,” Gustavsson points out.
“The immigration authorities are looking for shame”
Gustavsson studied 187 cases from the UDI and UNE from 2010 to 2015. UDI and UNE employees reported cases, the UDI making a random selection from a large volume of cases.
“Was the right to asylum of LGBTI people ensured in practice?” asks Gustavsson.
Gustavsson found too narrow requirements laid down by immigration officers for the behaviour of people seeking asylum on the basis of sexual orientation.
“My study of the cases shows that immigration authorities act on the assumption that there are so-called right and wrong answers to how a person understands and experiences his or her sexuality. Such an assumption is problematic on several levels.
“Who defines what is normal or abnormal and what are the consequences?” asks Andrea Gustavsson.
“The practice of the immigration authorities is based on an expectation of a classic coming out story. The asylum seeker must be able to talk about being an outsider and feelings of being different, about stigma and shame, and possibly gradual acceptance of being gay,” says Gustavsson.
Stories of being happy to find a partner rather than shameful, or not experiencing the acceptance of one’s sexuality as a process, can thus easily be seen as poorly reflected upon when viewed through Norwegian eyes. Many homosexual asylum seekers will also have insufficient language to express the reflections that the immigration authorities are looking for, particularly because of internalized homophobia and taboos related to sexuality, says Gustavsson.
“In this way, the immigration authorities risk creating a class distinction where asylum seekers with greater resources who have had the chance to be part of a gay scene and learn what it means to be gay in a Norwegian context create a better impression than people who lack such experiences,” Gustavsson warns.
From old to new stereotypes?
“To assess a person’s inner understanding of himself will always be difficult. Norwegian immigration authorities have come a long way in removing common stereotypes about homosexuals from the asylum assessment.
At the same time, the rejection of one stereotype can easily be replaced by another. In order for gay people’s right to asylum to be realised, it must be acknowledged that there are different ways of understanding and experiencing sexual orientation, and it must not be assumed that one understanding is more worthy of protection than another,” emphasises Gustavsson.
“My research findings show a fundamental weakness in the protection of people who are victims of abuse. One way to solve this is to take individual considerations into account on a case-by-case basis,” says Gustavsson.
“As we can see from the survey of the international legal sources in this area, including the UNHCR guidelines, there is no magic solution or simple answer to the question of whether an LGBTI asylum seeker is credible or not.
To ensure that national decision makers are able to make decisions that ensure the right to protection of LGBTI people, continuous training and guidance is needed in the complex issues of gender and sexuality.
At the same time, there is also a need to clarify what the credibility assessment should be based on. This implies that national guidelines should be more specific than they are today. However, the content of these must not be designed in a way that appears to be a ‘recipe’ for what elements must be present for a sexual orientation to be credible, but must take into account the diversity of human sexuality and gender,” says Gustavsson.
Andrea Gustavsson (2016): Fra handling til identitet. Troverdighetsvurderingen i seksualitetsbaserte aylsaker [From behaviour to identity: The credibility assessment in sexuality-based asylum cases], Kvinnerettslig skriftserie No. 99, University of Oslo.