Introduction
Among the hundreds of thousands of migrants who seek safety and asylum in the European Union from Africa to escape poverty, hunger and wars, a growing percentage is fleeing possible prison terms and death sentences in their home countries because of their sexual orientation or gender identity. Even though homosexuality was declassified as a mental illness by the American Psychiatric Association in 1973 and so has been decriminalised by many countries around the world, the path towards an actual overlapping of de jure and de facto acceptance of the LGBTQ+ community is long and full of obstacles.
According to the data collected by the international non-profit organisation “International Lesbian, Gay, Bisexual, Trans and Intersex Association” (ILGA), 60 UN member states criminalise same-sex sexual acts, several of which also outlaw forms of gender expression, while 132 do not. Among these 60, 45 are located in Middle East, North and Sub-Saharan Africa: Saudi Arabia, Iran, Yemen, Brunei, Nigeria and Mauritania even enforce the death penalty for homosexuality.
In order to better understand and contextualise these data, it is important to underline that the same penalties do not always apply to same sex relations between women. Also, it is necessary to note that while some countries have explicit legislations outlawing homosexuality, others that legally permit same-sex relations nevertheless persecute LGBTQ+ people, who are victims of unacceptance and stigmas that greatly affect their quality of life. LGBTQ+ individuals may, indeed, be denied access to housing, employment and healthcare, in addition to being harassed and marginalised by their own communities.
Stoking moral panics: criminalisation of homosexuality in Sub-Saharan Africa
According to Amnesty International, “last year witnessed a surge in discriminatory legislation directed against LGBTQ+ persons across Africa”. The results of research conducted in 12 countries shows how legal systems have been instrumentalized in order to target, discriminate and marginalise members of the LGBTQ+ community. The most alarming case is that of Uganda, where the trend towards a hardening of existing laws - consensual same sex activity is illegal - brought to the adoption of the Anti - Homosexuality Act, in 2023. Uganda’s law - upheld by the country’s Constitutional Court - establishes a wide range of crimes not only against the LGBTQ+ community, but also against whomever is suspected of being part of it. Indeed, the new law criminalises, inter alia, the “promotion of homosexuality”, defined, in turn, a “carnal knowledge against the order of nature”.
Furthermore, the international charitable Arcus Foundation’s report focused on media representation of LGBTQ people in African states notes that “Uganda has the most source statements that are negative in tone, the fewest stories that are positive or neutral in coverage tone, the fewest that feature LGBTQ+ sources, and the most that contain discriminatory, stereotypical, sensational, moralizing, marginalizing, and/or misgendering language”.
The international community has immediately reacted against the approbation of the law: the USA have imposed visa restrictions on Ugandan officials and has expelled the country from its tariff-free trade programme, Sweden has cut aid, and so has the World Bank. But such measures, which could have devastating consequences on a country that highly depends on foreign aid, have not led to any relevant step back by the government.
It cannot be denied, indeed, that the law enjoys support and is an expression of public sentiment. According to the most recent Afrobarometer survey, “Ugandan adults of all ages and education levels overwhelmingly continue to express intolerance for same-sex relationships, think they should be illegal, and are willing to report their own family member or close friend to the police if they engage in homosexual activity”.
Ugandans’ attitude toward same sex relationship are “extreme” even for the African continent, where such intolerance is widespread, as proved by the negative attitude of the African Group against the advance of LBGTQ+ rights within the UN system. Also, the African Union objected to the observer status granted to the Coalition of African Lesbians within the African Commission and even accused the body of violating African values by recognising the lesbian group.
The whole picture is made worse by the lack of binding international norms to guarantee protection to the LGBTQ+ community per se, even though it is clearly a victim of human rights violations, especially the right to freedom of expression, the right to develop one’s own personality and the right to life. Consequently, this affects the chances of obtaining asylum in safer countries, such as South Africa or, looking northward, first landing EU countries, such as Italy, Greece or Spain.
Facing the challenge of Asylum
In order to better analyse the challenges that LGBT+ asylum seekers face in the European Union, it is indispensable to offer a brief overview of how and by what means international law protects LGBT+ individuals. Although the main international human rights treaties do not explicitly recognise a right to equality on the basis of sexual orientation, there is widespread awareness in many countries of asylum that those fleeing from their countries due to persecutions caused by their sexuality can qualify as refugees according to the 1951 Convention relating to the Status of Refugees.
The International Commission of Jurists and the International Service for Human Rights, on behalf of a coalition of human rights organisations, have undertaken a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity, which was adopted at Gadjah Mada University in Yogyakarta, Indonesia in November 2006. In the Yogyakarta Principles, the introduction states they, “affirm binding international legal standards with which all States must comply”. Yet, the document itself is not legally binding and it won’t be unless adopted by an organisation like the UN.
In the case of the EU, the Court of Justice has recognised that sexual orientation can be related to the definition of social group as given by Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection. Yet, establishing criteria for individuals seeking asylum based on self-declared sexual orientation, and then applying them without carrying out intrusive and inappropriate investigations has not been easy to realise.
As noted in a dispatch published in 2018 by Human Rights Watch, there should be no room for prejudiced asylum officers. Yet, “Czech authorities attempted to measure degrees of sexual arousal. Asylum officers in the United Kingdom, Belgium, the Netherlands, Ireland, and Cyprus have been criticised for asking inappropriate, sexually explicit questions. In the United Kingdom, applicants were pressured to provide sexually explicit photographic and video evidence.”
Similar behaviours openly violate UNHCR guidelines on international protection that, referring to procedural issues, clearly underlines the importance of a safe environment throughout the refugee status determination procedure which, indeed, should leave no room for decision makers influenced by “stereotypical, inaccurate or inappropriate perceptions" of LGBTQ+ individuals.
Examiners should, indeed, conduct the whole procedure with both sensibility and sensitivity, especially considered that any kind of medical testing of the applicant’s sexual orientation is “an infringement of basic human rights”, while acknowledging that relevant and truthful information on the treatment of LGBTQ+ individuals is often lacking However, this still can’t lead to automatically drawing the unfavourable conclusion that the applicant’s claim is unfounded.
Luckily, according to the data collected within the #RainboWelcome project and shown through an interactive map, in dozens of LGBTIQ+ shelters and places in Europe, especially located in France and Italy, good practices have been put in place to better answer LGBTIQ+ refugees’ needs.
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