Persecution relating to an individual’s sexual orientation or gender identity is increasingly recognized by the UN Refugee Agency (UNHCR) and in refugee law as grounds for claiming asylum. Most such claims are based on the 1951 Refugee Convention’s definition of a refugee as someone having a well-founded fear of persecution because of "membership of a particular social group".
However, many lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals fail to gain asylum on this basis, either because they are unaware they can do so or because the officials determining their refugee status do not recognize such claims. This was the case for Mustapha in Malawi, one of 37 countries in Africa that criminalize homosexuality. He moved on to Zambia and tried again, with the same result.
After a third failed asylum application in Zimbabwe, another country that bans same-sex practices, he was advised by UNHCR that his best chance lay in South Africa, a country where the rights of LGBTI people are protected by the constitution and where refugee law spells out persecution relating to sexuality as grounds for asylum.
UNHCR issued Mustapha with a temporary travel document and he presented himself at the Beitbridge border post where he told immigration officials he wished to apply for asylum based on his sexuality.
"They just said, `Where is your passport?’ and when I didn’t have it, they arrested me," he told IRIN from a cell at Musina police station in late January.
Assuming, there had been a misunderstanding, Mustapha made contact with Lawyers for Human Rights (LHR), an NGO which campaigns for the rights of asylum seekers, refugees and migrants in South Africa.
"He was very open about [his sexuality]," said LHR lawyer Wayne Ncube who interviewed Mustapha at Lindela Repatriation Centre outside Johannesburg where he was transferred soon after speaking to IRIN. "He thought he was finally somewhere where his rights would be protected."
Ncube prepared court papers requesting the Tanzanian’s release but by the time he returned to Lindela four days later, Mustapha had been deported to Zimbabwe.
"We haven’t heard from him since," said Ncube.
A study released recently by People Against Suffering Oppression and Poverty (PASSOP), a Cape Town-based refugee and migrant rights NGO, suggests that while Mustapha’s experience is not the norm, LGBTI refugees and asylum seekers drawn to South Africa from other parts of the continent by its progressive reputation and legislation, experience high levels of discrimination, not just for being gay but also for being foreign.
Most of the 25 LGBTI refugees and asylum seekers interviewed by PASSOP had experienced discrimination as they sought accommodation, employment, social inclusion and documentation. The combination of xenophobia and homophobia negatively affected their interactions with landlords, employers, police and Home Affairs officials. Shunned by the refugee community for their sexuality, their status as foreigners tended to exclude them from Cape Town’s well-established gay community.
The PASSOP report also found that almost half of those interviewed had not stated their sexual orientation or gender identity in their asylum claims, in most cases because they did not know this was a valid reason for seeking refugee status. Of the 14 interviewees who had stated their sexuality as the primary reason for claiming asylum, most had faced ridicule or inappropriate questions and only two had been successful in their claims.
There needs to be a clear UNHCR strategy for providing access to asylum in countries where same-sex conduct is criminalizedRecently released research by the African Centre for Migration and Society (ACMS) at the University of Witswatersrand in Johannesburg which found widespread and systemic problems with the quality of refugee status determination decisions made by the Department of Home Affairs, highlighted the routine failure of Home Affairs officials to recognize sexual orientation as eligible grounds for asylum.
"I think it’s a general problem with training and knowledge of the law," said ACMS researcher Roni Amit. "Also a lot of them replicate the same discriminatory views about LGBTI people as the general population."
A 2008 UNHCR guidance note on refugee claims relating to sexual orientation and gender identity recommends that LGBTI applicants be interviewed by "trained officials who are well informed about the specific problems LGBTI persons face" but provides no guidance on how to fairly adjudicate claims from LGBTI people seeking asylum in countries that criminalize same-sex conduct.
Kenya and Uganda
"There needs to be a clear UNHCR strategy for providing access to asylum in countries where same-sex conduct is criminalized," said Duncan Breen, who has conducted research on the plight of LGBTI refugees in Kenya and Uganda (both countries criminalize same-sex conduct) for US-based advocacy organization Human Rights First.
He noted that in countries where UNHCR officials conduct refugee status determination, such as Kenya, asylum applications based on sexual orientation or gender identity were more likely to be recognized than in countries where poorly trained government officials make such decisions.
In a report released by Human Rights First in May, Breen and his colleagues documented the many security risks faced by LGBTI refugees living in Kenya and Uganda and the threat of arrest if they attempt to seek police protection. Most responded either by frequently moving to new locations or by attempting to hide their sexual orientation or gender identity.
In such cases, said Breen, LGBTI refugees struggle to access vital support and resettlement in a third country was often the only long-term solution. Currently, few LGBTI refugees from Kenya and Uganda are resettled, but Breen said there is increasing awareness among resettlement countries and UNHCR of the dangers facing this group of refugees and their need for resettlement.