Norm-critical study of the Swedish asylum examination

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					Produced for
The Swedish Migration Board

Document type
Final report

Date
February 2010

Report authors
Olov Wolf-Watz
Elin Törner
Henrik Borg




NORM-CRITICAL
STUDY OF THE
SWEDISH ASYLUM
EXAMINATION
TABLE OF CONTENTS
SUMMARY                                                                    3
1.   INTRODUCTION                                                          7
1.1  The study’s method and implementation                                 7
2.   THEORETICAL BASES                                                     9
2.1  Heteronormativity                                                     9
2.2  Sex and gender                                                       10
3.   STUDYING ASYLUM EXAMINATION                                          12
3.1  Definition of sexual orientation and gender in steering documents
     and their application                                                12
3.2  Ensuring a correct story                                             15
3.3  Assessing credibility                                                17
3.4  Forward risk assessment                                              21
3.5  Blind spots in the asylum examination                                24
4.   ANALYSIS AND CONCLUSIONS                                             27
4.1  Definition of reasons for asylum                                     27
4.2  Challenge of ensuring a correct story                                28
4.3  Challenges when assessing credibility in relation to these reasons
     for asylum                                                           29
4.4  Challenge of ensuring a correct risk assessment                      31
4.5  Blind spots in the asylum examination                                32
4.6  Sweden in an international comparison                                34
5.   CONCLUDING REFLECTIONS AND RECOMMENDATIONS                           36
5.1  Concluding reflections                                               36
5.2  Recommendations                                                      37
APPENDIX 1 ASYLUM LAW BACKGROUND                                          38
APPENDIX 2 DUTCH AND GERMAN LEGISLATION IN THIS AREA                      43
APPENDIX 3 LIST OF DOCUMENTS                                              47




NORM-CRITICAL STUDY OF ASYLUM EXAMINATION
SUMMARY
Ramböll Management Consulting (referred to as Ramböll in the rest of the
report) was commissioned by the Swedish Migration Board to carry out a
norm-critical study of the asylum process.1 This study was carried out between
August 2009 and February 2010. It is based on interviews with representatives
of the Swedish Migration Board, human rights activists, representatives of
Dutch and German immigration authorities and document studies. This
document represents the final report of this assignment.

This study shows that vague definitions, contradictory guidelines and unclear
guidance have repercussions among individual officers when examining sexual
orientation and gender identity as reasons for asylum. The study also shows
how these problems can be explained by heteronormative mechanisms, where
assessments, clouded by division and stereotyping, often form the basis of the
examination. This causes problems for the asylum seeker as their assessment
will depend on the officer or decision-maker that is allotted to them, but also
presents problems for the Swedish Migration Board in its ambition to carry out
a legally certain process.

There are five main areas where the asylum process risks being marked by
heteronormative features. These areas are presented in greater detail below,
along with the challenges that the Swedish Migration Board faces as a result.
Finally the main conclusions are presented from the international perspective.

Definition of gender and sexual orientation
The study has shown that when the definitions are wide and difficult to
understand, and when there is no guidance about how to understand them,
officers tend to base their judgements on their own preconceptions;
preconceptions that can be narrow and limited.

Gender and sexual orientation are divided in asylum law, with sexual
orientation defined as homosexuality, bisexuality and heterosexuality. To be
able to use this definition, it must be possible to distinguish these three from
each other. However, there is no uniform description of what actions/feelings
or other factors constitute a homosexual, bisexual or heterosexual person.
When sexual orientation is handled in an asylum application, there is a
tendency for sexual practice to be the only indicator of sexual orientation.

The definition of gender identity is wide and includes both biological sex and
aspects of gender that are socially and culturally defined. However, Ramböll
judges that this wide definition is not what is being applied. This definition
opens out because there is not one authentic, unchanging identity; gender
identity is something that is not only culturally and socially defined, but also
something that changes over time. This seems to correspond well with the
queer theory definition of gender. However, this study has shown that it has
been difficult for the officers to concretise the definition. The challenges facing
the Swedish Migration Board in creating clear definitions are:

•       to ensure that the concrete bases for identifying sexual orientation as a
        reason for asylum are not a mixture of sexual orientation and sexual
        practice.
•       to ensure that there are concrete bases for identifying gender identity as a
        reason for asylum.

Ensuring a complete story


1
    This report is a translation of the Swedish report “Normkritisk studie av asylprövningen”

                                                                                                3
The study has shown that it is problematic to get asylum seekers to talk about
issues that deal with sexual orientation and/or gender identity. This could be
because these issues are difficult to talk about due to the nature of the
questions and the relationship between the asylum seeker and the authority
representative. However, the study has shown that there are other aspects
that complicate the situation. These two reasons for asylum are defined in
relation to a Swedish norm system that states what is both acceptable and
what is not, but also where the boundaries lie when identifying what
characterises, for example, a homosexual and a heterosexual person. There
are signs that suggest that people at the Swedish Migration Board view
Sweden as an open society, where it is easier for people to live out their ‘true’
sexual orientation and gender identity, than in countries where people risk
persecution for this.

Ramböll judges that there is reason to strengthen awareness of the normative
influence in definitions of sexual orientation and gender identity, as this would
help people approach these issues with greater accuracy and fewer prejudices.
The study shows that there is one challenge that the Swedish Migration Board
has to face to ensure a correct story:

•   to strengthen competence in understanding and analyzing normative
    structures.

Assessing credibility
The study shows that there is a lack of clarity when assessing the credibility of
sexual orientation and gender identity as reasons for asylum. A person’s sexual
orientation must not be brought into question, but there are signs that indicate
that credibility is still assessed in statements about sexual orientation.
Interviews show that there is a risk that distrusting a person’s sexual
orientation can affect the assessment. This distrust is often based on
stereotypical preconceptions of sexual orientation and gender expression.
Ramböll believes that it is more difficult to identify this if this kind of
assessment is implicit and disguised in other issues; this would also result in
unclear information if the case had to be re-examined.

In practice this means that asylum seekers risk being called into question
simply because they come up against the stereotypical preconceptions that
officers and decision-makers have about how people of a certain sexual
orientation or a certain gender identity should act. There is a risk that a
person’s credibility and, in the long run, the outcome of their assessment, will
be affected by the extent to which their appearance, behaviour, the way they
express themselves, etc., correspond to the preconceptions that individual
officers and decision-makers have of how people should express their gender
or sexual orientation. The study shows that the Swedish Migration Board faces
two main challenges when assessing credibility:

•   to ensure that any distrust about sexual orientation does not impact the
    rest of the examination.
•   to ensure that credibility assessments are not carried out based on
    stereotypical preconceptions of what it means to be or live as a
    homosexual, bisexual or heterosexual person.

Forward risk assessment
The study has shown that the forward risk assessment is problematic for these
reasons for asylum. If an asylum seeker has been a victim of persecution, the
forward assessment of whether the fear can be considered to be well-founded
is relatively uncomplicated, but if the person has not lived openly in their home
country, they do not have this kind of story to tell. The risk assessment is

                                                                                    4
carried out based on a general assessment of the situation in the country and
the probability that the asylum seeker would live openly if they returned home.

There are no clear guidelines around what openness actually means. The
Aliens Handbook states that people have the right to live out their ‘orientation
as a heterosexual’. It is Ramböll’s assessment that this is a clear example of
how a heterosexual norm guides the assessment of sexual orientation and
gender identity. Ramböll also judges that it is difficult to refer with any
certainty to this guideline when dealing with a female asylum seeker from a
country where women’s sexuality is oppressed, while still maintaining that the
person has the right to live out their orientation ‘openly’.

No clear practice has been established about how openness should be
assessed. It is Ramböll’s assessment that each individual officer has a choice –
to base their judgement on how the person has lived in the past, or base it on
how they want to live. If the officer chooses the former, a person that has lived
in hiding in their home country has little chance of being granted asylum. This
is described as being unacceptable in many of the interviews, and is an
alternative that the Swedish Migration Board intends to distance itself from. In
the second choice, the individual officer, bearing in mind the lack of guidelines,
will draw boundaries about a ‘reasonable’ level of how a person should live out
their sexual orientation or gender identity. This study showed one key
challenge that the Swedish Migration Board has to face in the forward risk
assessment:

•   to find a stable practice around what it means to live ‘openly’, which does
    not rely on heteronormative preconceptions.

Blind spots in the asylum examination
The study has shown that there is a tendency for some conceivable scenarios
in the asylum examination to be made invisible and forgotten. As previously
mentioned, the Swedish Migration Board has presented a guiding decision for
sexual orientation. The study shows that cases where the person has been a
victim of harassment, persecution or sentenced for their sexual orientation are
the least problematic. However, this is where the guidance is at its clearest.

Aside from the fact that certain scenarios and gender identity as a reason for
asylum are made invisible, it is also clear that the norm in the asylum process
is a male asylum seeker. This comes out in both the interviews and the guiding
documents. The clearest example has already been dealt with in connection
with the discussion on the forward risk assessment; i.e. where it is clear that
the guideline stating that people have the right to live out their orientation as a
heterosexual, actually means that they have the right to live out their
orientation as a heterosexual man.

The study shows the challenges that the Swedish Migration Board has to deal
with in relation to the blind spots in the asylum procedure. They are:

•   to strengthen awareness among the staff at the Swedish Migration Board
    about normative features in the examination.
•   to supplement the guidance to ensure that gender identity as a reason for
    asylum is not at risk of being made invisible.
•   to supplement the guidance to ensure that women do not risk being made
    invisible.

International perspective
The international perspective shows that despite the differences in rhetoric,
there are similar challenges within virtually the same areas in Germany and
the Netherlands.
                                                                                   5
The study shows that there is a clear challenge that the Swedish Migration
Board faces in its work to harmonise the asylum process at EU level:

•   to strengthen awareness of the problems about drawing boundaries when
    examining sexual orientation/gender identity and their equivalents as
    reasons for asylum in European collaboration.




                                                                             6
1.   INTRODUCTION
     This report comprises a study of asylum examination from a norm-critical
     perspective. The study is primarily based on the Swedish asylum process, but
     also includes an international perspective from two other European countries.

     The purpose of this study is to investigate asylum examination from a norm-
     critical perspective in order to highlight whether and how heteronormative
     mechanisms operate at different levels in asylum examination. The study is
     about the tension between three different poles: human rights linked to gender
     and sexuality, norms around gender and sexuality and the legal requirements
     for proof and categorisation. The study is based on the application of applicable
     asylum law.

     Examining asylum cases where sexual orientation and/or gender identity are
     cited is characterised by a number of factors that make it difficult to ensure a
     fair examination. These reasons for asylum are difficult to talk about for the
     asylum seeker and difficult for the staff of the Swedish Migration Board to ask
     about, which means that the reasons are often cited late in the process. This
     led to the Director of Legal Affairs of the Swedish Migration Board issuing an
     official statement, which states that the Swedish Migration Board must accept
     a new examination on the basis of new grounds in these cases. The fact that a
     person did not previously invoke persecution due to sexual orientation as a
     reason for asylum must be excusable due to the strong social taboos around
     these issues in many countries of origin.2 The statement is underlying
     recognition of the current circumstances, where the current tools do not help
     to ‘discover’ these reasons for asylum until late in the process. This study
     takes its starting point from these problems and aims to highlight the
     mechanisms that contribute to making the examination of sexual orientation
     and gender identity difficult.

     This study forms part of the Swedish Migration Board’s project Beyond
     Borders, which aims to reduce the risk of the norms around sexuality and
     gender affecting the asylum process. The project was financed by the
     European Refugee Fund and was carried out during the period 2009-2010.

     1.1    The study’s method and implementation
     The study was carried out in the autumn of 2009 and is based exclusively on
     qualitative material. Using a queer theory perspective, the principle and
     practical problems are highlighted that exist at different levels of the asylum
     process related to sexual orientation and gender identity as reasons for
     asylum. The study does not evaluate asylum examination based on, for
     example, how many asylum seekers were given wrong judgements due to
     heteronormative mechanisms.

     1.1.1 Data collection methods
     This study is based on two main kinds of material – interviews and written
     sources. The analysis is based on a balance of these two sources. A total of 22
     interviews have been carried out with officers, decision-makers and experts at
     the Swedish Migration Board. In the report we have not compared the
     functions in the Swedish Migration Board with each other as it has not been
     possible to find uniform differences between them. Interviews have also been
     carried out with actors outside the Swedish Migration Board such as assistants
     and human rights activists in this area. In the international case study,
     interviews have been carried out with representatives of national immigration
     authorities in Germany and the Netherlands.


     2
         The official statement only names sexual orientation as the reason for asylum, but will also apply to gender identity.

                                                                                                                                  7
Function                                              Number
Officers - the Swedish Migration Board                9
Experts – the Swedish Migration Board                 5
Director of Legal Affairs and Planning Secretary –    2
the Swedish Migration Board
HR activists/assistants                               2
Representatives from the Dutch legal system           2
Representatives from the German legal system          2

The interviews have provided solid material to base the analysis on, and have
meant that the analysis has contributions from people with a particularly good
insight into the asylum process.

In addition to the interviews, key documents have also been studied within the
framework of this study. These include legal texts, guiding decisions,
handbooks and relevant judgements. The purpose has been to capture central
aspects in the documents that form the basis for asylum examination and in
the relevant judgements that highlight the practice applied for these two
reasons for asylum. In the studies, a difference is made between steering
documents and guiding documents. The former includes legal texts and
preparatory work; the latter includes for example handbooks and guiding
judgements. For a list of all documents, refer to Appendix 3.

In addition to the Swedish asylum process, the study also covers two
approaches in Europe – Germany and the Netherlands. In addition to studies of
the documents listed, a number of interviews have been carried out in these
two countries with civil servants from the immigration authorities in these
countries. The choice of case studies has been made as they are considered to
represent the two different categories. The Netherlands has been working with
these issues for longer than many other countries, while Germany represents a
different kind of rhetoric for these issues and serves as a reference point for
comparisons with the Swedish process.

1.1.2 The report’s structure
In Chapter 2 an overview of the bases for this study is presented. In Chapter 3
a study of Swedish asylum examination is presented, divided thematically into
a number of different areas. Swedish examinations are compared with
Germany and the Netherlands in some of these areas. In Chapter 4 a joint
analysis is carried out based on the theoretical bases. Finally Chapter 5 collects
the main reflections from the study and Ramböll’s recommendations based on
the results shown.




                                                                                 8
2.   THEORETICAL BASES
     This study has been carried out based on a queer theory perspective. Queer
     theory is not a unified theory; it can be better described as a perspective
     where normality and norms are studied and questioned. In queer theory,
     questions are asked about how norms work, how they appear and are
     maintained, and how these norms are linked to power and hierarchy in
     Western society. Focus is placed on gender and sexuality.

     Queer theory has been developed within the tradition of post-structuralism,
     which emphasises the instability and change of our existence. This is in
     contrast to essentialism and the idea of enlightenment and continual progress.
     A fundamental view in essentialism is that each entity has a set of
     characteristics which all entities of that kind possess. In essentialism, culture
     and ethnicity are therefore considered to be something static, unchanging and
     complete. It is part of a person’s nature.

     In the post-structuralist tradition, a behaviour or a concept is understood
     based on its relationship to the surroundings. More specifically, the difference
     between the behaviour being studied and other behaviours are emphasised;
     for example, the meaning of the concept of man is understood and created
     through a comparison with the concept of woman. As these concepts can only
     be understood in relation to each other, a definitive meaning of a concept
     cannot be defined; the meaning of the concept will change over time and in
     different contexts. Language plays a very key role in this continual search for
     the meaning of words and concepts.

     In line with the post-structuralist view of instability and change, there is no
     generally accepted definition of the concept of queer. The concept of queer can
     therefore have different meanings depending on context, political agenda and
     personal experience. Although this perspective leads to the preconceptions
     that are taken for granted being studied and questioned, it means that not
     everyone’s needs can be taken into consideration. In this study, a queer theory
     perspective of asylum examination results in the norms surrounding gender
     and sexuality, and the system that maintains norms around gender and
     sexuality being identified and questioned.

     There are a number of concepts in queer theory that are central for
     understanding how gender and sexuality can be interpreted and expressed.
     The central concepts that form the basis for the analysis will be reported in the
     following section to improve the reader’s understanding of these concepts.

     2.1     Heteronormativity
     Heteronormativity can be described as the laws, structures, relationships and
     actions that maintain heterosexuality as something uniform, natural and all-
     encompassing. Specifically, these systems can be about what a person looks
     like, speaks, the interests they have or who they are attracted to, etc.
     Studying heteronormativity means studying the complex systems that reward
     a certain way of organising your life.

     Heteronormativity requires a division of heterosexuality and homosexuality.
     More specifically it means that a person that is categorised as a woman is
     expected to feel desire for a person that is categorised as a man and vice
     versa. A clear boundary needs to be drawn between a woman and man before
     a boundary can be drawn between homosexuality and heterosexuality. Gender
     categories are therefore just as important a component as sexuality in
     heteronormativity. In other words if a person wants to fit the pattern


                                                                                         9
prescribed by heteronormativity, they have to pass as either a woman or a
man, and be perceived as being heterosexual.

Another central mechanism in heteronormativity is hierarchisation. This means
that there is a hierarchy between the various categories. It is considered to be
superior and more natural to live with someone of the opposite sex than to live
with someone of the same sex. This hierarchy can manifest itself as
persecution, which can be a contributing factor for people coming to Sweden to
apply for asylum.

Heteronormativity is maintained through continual division and hierarchisation.
Another strategy for maintaining the heteronorm is stereotyping, through
which a few, simple, easy-to-understand and recognised characteristics of a
group are identified and are then allowed to represent everyone in this group.
By simplifying and defining people in this way, they are reduced to something
limited and predictable. Division and stereotyping are two central queer theory
concepts that are of specific relevance to this study.

2.2    Sex and gender
Gender and sexuality are controversial concepts. Sex is traditionally considered
to be something fixed and original, while gender (social sex) is seen as
secondary, as something outside the original core. However, Judith Butler, an
American professor in literature and rhetoric, thinks that we cannot talk about
a core, as this ‘core’ is also defined by a number of limits. The boundaries are
in turn affected by the conditions in the surroundings, for example, language,
expectations, values, etc. Sex is created by the same constructive power as
gender; a power system that Butler calls the heterosexual matrix.

The heterosexual matrix is a gender model that is based on the fact that men
and women are made intelligible through a certain gender (masculinity and
femininity). These two entities are organised as opposites through mandatory
heterosexual practice and this system is what creates the concept of original
nature. Prohibition and obligation make people act based on gender-specific
norms, actions that can be repeated and re-repeated. Butler therefore thinks
that we perceive men and women to be a natural fact, while they are actually
just an effect of the heteronormative matrix.

This study is based on a number of categories in terms of gender, gender
identity and sexuality. These concepts are relevant for the study and therefore
need to be explained separately.

Social sex, or gender, is a term for gender that focuses on gender as a
cultural and social construction.

Legal sex is the sex that a person is registered at birth. Sweden uses the
categories ‘male and ‘female’. Legal sex, for example, appears as a letter in an
individual’s personal identity number and passport.

Biological sex is based on the combination of chromosomes that a person
has.

Gender identity is about the gender that a person identifies themselves to be
and thinks that they belong to. In other words it is only the individual
themselves that can determine which gender identity they have. Gender
identity is created through different everyday actions. The way we construct
our gender identity is created in the contexts we find ourselves in, something
we are often unaware of.



                                                                              10
Gender expression is the way in which a person expresses their gender. This
can take place through, for example, clothes, body language and social
behaviour.

Sexuality can be said to relate to the aspects listed above, and can be
manifested and defined within all parts of society. From this point on, sexual
orientation will be considered to consist partly of sexual identity and partly of
sexual practice, as the former deals with a person’s own perception of their
sexuality and the latter with the sexual act.

One important aspect is that the definitions above are not based on a
universally accepted view, but differ between different cultures and countries.
The following chapter refers to the Swedish discourse, by which we mean the
set of norms, rules and definitions that are specific to Sweden. The view of
sexual orientation and gender identity forms part of this discourse, and the
way in which norms and boundaries around these concepts are defined
influence asylum examination.




                                                                                    11
3.   STUDYING ASYLUM EXAMINATION
     Sweden is a signatory to the UN’s Convention Relating to the Status of
     Refugees, known as the Geneva Convention, which means that it undertakes
     to provide asylum to a refugee in accordance with the conditions set out in the
     convention. The Swedish definition of refugee is that an alien is a refugee if he
     or she is outside the country of his or her nationality, because he or she feels a
     well-founded fear of persecution on the grounds of race, nationality, religious
     or political belief, or on grounds of gender, sexual orientation or other
     membership of a particular social group, and is unable, or because of his or her
     fear is unwilling to avail himself or herself of the protection of that country.

     Since the introduction of the new Aliens Act, persecution on the grounds of
     gender or sexual orientation has been included as grounds for asylum, instead
     of – as was the case before – possible grounds to be included as a person
     otherwise in need of protection. The Swedish Government did not introduce
     any new grounds for refugee status in this new act. The basis for asylum is still
     a well-founded fear of persecution on the grounds of membership of a
     particular social group – but this new legislation clarifies that gender and
     sexual orientation must be considered to be grounds for membership of a
     particular social group in accordance with Swedish law. When examining all
     asylum cases, a forward assessment is carried out to assess the extent to
     which the fear can be considered to be well-founded based on the situation in
     a person’s home country.

     In the study, ‘gender’ and ‘sexual orientation’ are referred to as ‘reasons for
     asylum’. In pure legal terms, this is not entirely correct. Gender and sexual
     orientation are not reasons for asylum, they are included as grounds for
     membership of a particular social group, which in turn means that a person
     can be granted asylum if they have a well-founded fear of persecution due to
     their membership of this particular social group. From this point on, we will
     refer to asylum examination rather than examining refugee status.

     As mentioned previously, one of the bases for this study is the official legal
     statement, which states that the Swedish Migration Board has to accept a new
     examination if new reasons for asylum are cited. This official statement is an
     underlying recognition of the fact that the Swedish Migration Board is currently
     finding it difficult to examine the reason for asylum.

     In this chapter, the study of asylum examination is based on the description of
     a number of different areas where the act or its application is problematic. The
     objective is to describe how and in which areas the conditions for examining
     sexual orientation and gender identity as reasons for asylum are unclear or
     contradictory, based both on the perspectives of the asylum seekers and the
     Swedish Migration Board. Comparisons are also made with the Netherlands
     and Germany in some cases.

     3.1     Definition of sexual orientation and gender in steering
             documents and their application
     In the Swedish Aliens Act, gender and sexual orientation are separated. As will
     become evident, the definitions of sexual orientation, gender and social group
     are problematic. The study shows that merging a very wide and context-based
     definition of gender and a clearly limited definition of social group causes
     difficulties. It also shows that it is not clear what kind of stories/methods of
     expression refer to sexual orientation and gender identity. There is reason to
     describe in greater detail how these definitions are made and how they are
     interpreted among officers at the Swedish Migration Board.


                                                                                       12
3.1.1 Steering documents and guiding documents use broad
        definitions
Definitions are key when examining reasons for asylum. What do sexual
orientation and gender mean? If, for some reason, the person is not aware of
the possibility of citing these reasons, it is particularly important for the
definitions for these reasons for asylum and what they represent to be clear.
This is the definition that is given for sexual orientation:

      The concept of sexual orientation refers, as the Government has cited in
      previous legislation, to homosexual, bisexual and heterosexual
      orientation in accordance with established legislative terminology.
      (Government Bill 2001/02:59 p. 40)

As set out in the quote above, this definition is based on established
terminology in Swedish discrimination legislation, where sexual orientation
refers to homosexuality, bisexuality and heterosexuality. However, it does not
provide any guidance to what these different orientations mean. Sexual
orientation comprises both sexual practice and sexual identity, but the
definition does not set out what the legislation refers to. As for the definition of
gender, it is based on a broader basis than simply biological sex.

      In legal contexts relating to refugees, the term ‘gender' according to the
      Government is used in the widest extent and therefore does not only
      cover the biological difference between men and women, but also
      socially and culturally-determined, stereotypical perceptions of how men
      and women should behave. (Government Bill 2005/06:6 p. 21)

This quote shows that in addition to the biological differences between women
and men, there are also socially and culturally-determined perceptions of how
men and women behave in this definition. According to the definition, gender is
not only determined biologically, but is something that can vary between
cultures and countries. The definition of gender therefore covers biological,
social and legal sex. Here, sexual orientation is distinguished from gender, as
the emphasis of the contextual importance on the meaning of gender does not
apply to sexual orientation. In the Aliens Handbook the term ‘sexual identity’ is
defined as the gender to which the person perceives themselves to belong to,
and differs from biological sex and social sex as no external factors determine
these.

Both gender and sexual orientation will either alone or in association with other
characteristics be able to constitute grounds for membership of a particular
social group.

      In accordance with the Asylum Qualification Directive, a group will be
      considered to be a particular social group when the group’s members
      have a significant characteristic or a common background that cannot be
      changed, or comprise people who have a common characteristic or
      conviction that is so fundamental for their identity or conscience that
      they should not be forced to renounce it, or when the group has a
      specific identity in the country in question that is perceived to be
      different from the surroundings (Article 10.1 d). (Government Bill
      2005/06:6)

According to the steering documents, a social group is therefore one where the
group’s members have specific characteristics, experiences or convictions.
These characteristics, experiences or convictions must either be unchangeable,
and so fundamental for the individual’s identity or conscience that they cannot
be forced to renounce them; or that the group of members must have an

                                                                                  13
identity in the country in question that is considered to be different from the
surroundings.

3.1.2 Application requires concrete operationalisation
In some cases, there may be cause for the individual officer or assistant to
provide information about the possibilities of citing gender identity or sexual
orientation as reasons for asylum when they meet the asylum seeker.
However, it is difficult to identify signs of when citing this reason would be
relevant, based on the definitions of sexual orientation or gender identity that
are provided.

When the Swedish Migration Board or assistant provides information about the
grounds for persecution, the officer or assistant must be clear about what
signals a certain orientation or gender identity. They must also be able to
distance themselves from the Swedish norm system around these aspects in
order to carry out a correct assessment. This obviously requires a lot from the
individual officer.

This study has shown that one strategy to deal with any lack of clarity can be
to use their own understanding to look for signs of expression that highlight a
certain sexual orientation/gender identity, such as the person having a partner
of the same gender or the person talking about same-sex sexual practice.
There are similar, or maybe even greater problems of unclear
operationalisation for gender identity. The bill discusses gender identity in
relation to transsexual people in the following terms:

      The term ‘transpeople’ generally refers to transsexuals, transvestites and
      other people who have a gender identity or a gender expression that
      sometimes or always differs from the norm for the gender that was
      registered for them at birth. (2005/06:6)

In terms of gender identity, there are a few concrete expressions that can be
used to define this, for example, a transvestite that dresses in clothes that are
traditionally worn by the other gender. However, for many people who have a
gender identity that differs from the norm of the gender that was registered for
them at birth, there are no clear signs for the officer to identify. This is only
natural, as gender identity is something that is only about the person’s own
perception. It is only when these are linked with gender expression, when the
identity is clothed in external attributes, that this leads to persecution. As
norms surrounding gender identity and gender expression are very complex
and changeable, Ramböll judges this kind of assessment to be difficult for
individual officers to carry out.

When asking about how a representative of the Swedish Migration Board
interprets the term ‘gender identity’ in the asylum process, this answer is
given:

      It’s about whether they identify themselves as a man or woman. This is
      where the meaning lies – how they identify themselves.

This quote shows how the broad definition that is set out in the bill is limited
and simplified. The definition in the bill opens up a much broader
understanding of gender, but one which by definition does not provide any
guarantee that the staff at the Swedish Migration Board will talk about gender
as anything more than simply men and women. This is where legislation and
application pull in different directions. The law opens up a broader definition of
gender identity, but when it is being applied, interpretation is generally much
narrower.

                                                                                  14
3.2    Ensuring a correct story
As previously stated, it is difficult for asylum seekers to talk about their sexual
orientation or gender identity and any persecution. These questions are
personal, intimate and sensitive to talk about, particularly with an authority
representative. At the same time, the asylum seeker could be pursuing a
strategy in their contacts with the authority to maximise their chances of being
granted asylum. For example, this strategy could mean that the asylum seeker
chooses to miss out certain parts of their story in the belief that this would
strengthen their chances of being granted asylum. This further complicates the
examination for the Swedish Migration Board, and there is therefore reason to
study in greater detail how the Swedish Migration Board is working to ensure
that they are given a correct story.

3.2.1 Steering documents and guiding documents address the problem
       around the story
One clear obstacle to receiving a complete story is the fear of reprisal felt by
the asylum seeker. Problems of persecution or harassment in their home
country could affect the chances of getting the asylum seeker to invoke these
reasons for asylum set out in the steering documents.

            These people often come from countries where homosexuality is
            taboo and they may have suffered from harassment because of
            their sexual orientation both from their own family circle and from
            the authorities. Their own sexual orientation may be linked to
            strong feelings of guilt. The investigations into these asylum cases
            must therefore be carried out, remembering that it can be difficult
            for the applicant to talk about their experiences, particularly when
            this will take place in front of an authority employee. (Government
            Bill 2005/06:6)3

This quote shows that the problem may not only be about a fear of
harassment, but also a person’s own feeling of guilt around these issues. The
bill focuses on the quality of the investigation and the fact that the
investigation has to deal with the difficulties that a person can experience
when talking about these aspects. The guiding documents also contain text
relating to this problem. The Aliens Handbook for investigating and assessing
the need for protection on the grounds of gender and sexual orientation states
that:

            The individual often has a prejudiced image of themselves so it is
            important to know that this may come out later in the process.
            (Aliens Handbook for Gender and Sexual Orientation)

This quote focuses on the individual person’s self-image and that fact that this
can be characterised by ‘prejudices’. If a certain sexual orientation or a certain
gender identity is taboo in the country they come from, it can be difficult to
talk about the feelings they have even if they have left the country.

In some cases, the person has not identified themselves based on sexual
orientation or gender in their country of origin and an identity as a
homosexual, bisexual or transgender person has developed since they have
been in Sweden. When the asylum seeker arrives in Sweden, they also enter a
new norm system that specifies what it means to live, for example, as a
homosexual. In other words, the person has to put themselves on the map of
gender and sexuality that exists in Sweden. This map is not only about who
they are and who they want to be, but also about the view of sexual


3
    It is worth noting that this quote does not refer to transpeople, although this would be just as valid in this case.
Instead the section on gender is limited to vulnerable women.

                                                                                                                           15
orientation or gender expression in their private environment, and the
categorisations and preconceptions that exist in the Swedish asylum process.

According to an official statement on enforcement (RCI 04/2009), the Director
of Legal Affairs at the Swedish Migration Board states that a new examination
must be accepted if the asylum seeker invokes persecution on the grounds of
sexual orientation as a reason for asylum late in the process. However, this is
only for asylum seekers who have not lived openly in their home country. The
reason why individual asylum seekers invoke this reason late on is due to the
difficulties they have in talking about these issues.

      A person who has concealed and hidden their sexual orientation
      throughout their life would therefore in general have a valid excuse for
      not invoking this reason earlier in the process, while a person who has
      lived openly as a homosexual in their home country (e.g. participated in
      public activities for homosexuals and bisexuals) generally would not
      have such a valid excuse. (RCI 04/2009)

This official statement makes it possible for people that come out in Sweden
and for people who have hidden their sexual orientation in their home country
to cite new reasons and be granted a new examination. However, the official
statement does not say anything about people who cite gender identity as the
reason for asylum, even though the problems would be just as relevant for this
group.

3.2.2 Quality in the process and time are key factors in the process
To ensure quality in its examination, the Swedish Migration Board has to carry
out the investigation in a way that ensures that the full story is told. This is
essential to ensure a legally certain assessment and to ensure that the rights
of the asylum seeker are taken into consideration; this is not unique to these
reasons for asylum. A human rights activist, who has insights into the asylum
process, expresses this challenge in the following way:

      It is about how you talk to the applicant and why you ask certain
      questions. But it is also about how you ask questions during the
      investigations themselves. Small factors can stop people from
      understanding what legitimate reasons for asylum are.

This quote provides a picture of the complexity in the investigation work. The
asylum seeker must not only understand that these reasons for asylum exist
and how the definitions relate to their feelings and experiences – they also
have to overcome their own unwillingness to talk about them. It is Ramböll’s
assessment that there are challenges in terms of investigation methods and
competence linked to this area, which refer to the individual officer’s ability to
receive a full story from the asylum seeker.

Two different aspects that affect the chances of being told a correct story are
the time aspect and the quality of the process. The time aspect is central as it
places an outer boundary for the process. It can take time for the asylum
seeker to put words to their feelings, familiarise themselves with the Swedish
norm system and present new reasons to the Swedish Migration Board.

The second aspect is the quality of the process. The various stages of the
process and the quality of the assessment help to make it easier for people to
go through the process, according to interviews with representatives of the
Swedish Migration Board. The official statement can therefore be considered as
a way for the Swedish Migration Board to compensate for any shortcomings in
the process by giving the individual more time. However, receiving negative

                                                                                 16
news is not something neutral; it is often psychologically draining for the
individual asylum seeker. One officer expresses this in the following way:

      The time aspect is critical. Time and patience solve a lot of these
      problems. But we do not have the time. The basic examination ends
      quite quickly – then it is up to the courts, but this does not make things
      easier. Negative news in the basic process creates suffering and there is
      a risk that applicants with these reasons for asylum will lose out.

This quote shows how the time aspect is linked to the quality of the process. It
is not necessarily positive for the individual if the process goes more quickly –
particularly if the story (about taboo feelings and experiences) will
subsequently be presented in a context that is even more public.

Ramböll judges that in this context the Swedish Migration Board’s development
project ‘Kortare Väntan’ (Shorter Waiting) could affect both the quality of the
process and the time aspect, due to its objective of shortening waiting times
and increasing legal certainty in the Board’s asylum examination. It remains to
be seen whether the change to the administration process will help to make it
easier or more difficult to receive a full story for people who invoke or could
invoke sexual orientation or gender identity.

3.3     Assessing credibility
When an asylum seeker cites sexual orientation or gender identity as grounds
for feared persecution, this fact must as a rule not be brought into question
(Aliens Handbook on Sexual Orientation). However, a credibility assessment is
made of the story told by asylum seekers in all cases. The study has shown
that in practice it can be difficult to distinguish the perception of sexual
orientation/gender identity from the assessment of the story as a whole. In
other words there is reason to study in greater detail about whether the
credibility of a person’s sexual orientation/gender identity risks influencing the
general assessment of credibility.

3.3.1 Steering documents and guiding documents are not clear cut
The steering documents and the guiding documents provide some guidance in
assessing the asylum seeker’s credibility. The following excerpt appears in the
Aliens Handbooks on the investigation and assessment of the need for
protection on the grounds of sexual orientation:

      It is in the nature of things for it to be difficult to ‘prove’ an
      asylum seeker’s statement saying that he/she is, for example,
      homosexual. In general, a statement about sexual orientation
      should be accepted, unless special conditions lead people to think
      otherwise. The situation of a homosexual person, for example,
      being married and having children with a person of the opposite
      sex should not in any way exclude the fact that she/she has a
      homosexual orientation. (Aliens Handbook on Sexual Orientation)

This quote shows that a statement that an asylum seeker is homosexual must
generally be accepted and there is reason to see beyond indications of sexual
orientation that are taken for granted or culturally-influenced. In other words,
when asylum seekers themselves – or through an assistant – cite sexual
orientation as a reason for fear, this information must not be brought into
question, unless special circumstances would lead an officer to believe
otherwise. However, the wording leaves it open for some cases where there
may be reason to question the asylum seeker’s information about their sexual
orientation. However, it is not clear what these special circumstances would
be. There is no corresponding wording linked to gender identity in the Aliens

                                                                                 17
Handbook for investigating and assessing the need for protection on the
grounds of gender.

3.3.2 Application varies within the Swedish Migration Board
How are these texts interpreted by the Swedish Migration Board’s staff? A
uniform approach does not appear in the interviews. Some people believe,
despite what is set out in the Aliens Handbook, that if the person lives together
with or is married to someone of the opposite sex, this can be sufficient reason
to investigate the person’s sexual orientation.

      This can be evident. Someone might say that they are homosexual
      but they live with a woman.

This quote shows that the fact that this person (it is clear that it is a
male asylum seeker that is being referred to) lives with a woman can be
taken as justification for distrusting the information about the person
being homosexual. The opposite perception also appears and is
expressed by another officer as follows:

      I find it extremely difficult to see how you can question this.
      People themselves might say that ‘I am not homosexual’, but later
      on this turns out to be a lie; you can question the credibility here,
      but never in other circumstances. The fact that someone has a
      wife or child does not exclude the possibility of them having
      another orientation. In many countries, you have to live in a
      heterosexual relationship. This can also happen in Sweden as
      many people live in a heterosexual relationship and then have a
      relationship on the side.

This quote is more in line with the guidelines that appear in the Aliens
Handbook. The fact that the person is married and has a family should not be
of any significance to the person’s orientation.

Other officers think that a person’s credibility can be examined if there is proof
that the person has previously lied on repeated occasions. Other interviewees
could not specify a situation that would lead to this kind of examination. Based
on the interviews, Ramböll believes that there is no clear line on how credibility
should be assessed.

In cases where sexual orientation or gender identity are not questioned
expressly as such, there is a risk of an implicit assessment being made of
credibility, which can have consequences in other parts of the examination.
The overall credibility assessment is affected if the actual grounds for
persecution (sexual orientation and gender identity) are not believed to be
credible. An expert that Ramböll has spoken to thinks that you should not
automatically accept a statement on sexual orientation or gender identity.

      When you accept that a person is homosexual, it can result in you
      not understanding the problems of a case. A bad decision can then
      be made. Compare this with political activities, where we always
      ask questions, not to check, but to ensure that the asylum seeker
      can develop their story. Many of these assessments are made
      because we do not believe the applicant. We therefore hack our
      way to a strange assessment that this is not enough.

This quote shows that there are occasions when a statement on sexual
orientation is examined in order to increase the understanding of a case. In
this instance, suspicions that the statement of sexual orientation is not correct
can contribute to the person losing credibility. An officer describes the same
                                                                                18
risk of the suspicion that the sexual orientation is not correct ‘leaking out’
somewhere else.

           … how you view the issue, if you should evaluate their credibility
           in terms of sexual orientation. This is really the most difficult
           issue. We don’t go in and make any evaluation, we approve it. We
           do not question sexual orientation. But other things might lead
           you to question the person’s story. In order to get a picture of
           them, I ask questions like “When did you realise that you were
           homosexual, how have you been living in your home country, how
           have you been living here?” You don’t catch people out on sexual
           orientation. We end up in the discussion that we do not question
           orientation even though there are other circumstances that are
           doubtful.

As the quote above describes, there are therefore cases where there are
suspicions that their sexual orientation is not correct, but where they choose to
catch people out on other parts of their story because the person’s sexual
orientation must not be examined. However, not everyone believes that this is
a problem. There are interviewees who believe that this kind of suspicion
cannot have any impact in the investigation because the decision has to be
justified.

3.3.2.1 Factors affecting credibility
What is it that makes it believable that a person is for example homosexual?
There are a number of factors that the interviewees refer to. For example,
several interviewees have taken up openness as a factor that could be thought
to affect the credibility of a person’s sexual orientation. There are occasions
where openness in the way people have chosen to live affects credibility in a
positive way. A steady relationship and contacts with LGBT4 organisations are
other factors that are seen as making homosexuality more credible.

           We had a case when it was clear that this man was homosexual,
           he had a male partner in Sweden, he went to Pride.

Going to Pride and having a partner of the same sex are examples of factors
that can help to increase credibility when people cite sexual orientation as a
reason for asylum. Openness is going to be considered in greater detail below,
but it is Ramböll’s assessment that it is clear that, in the assessment of
credibility, there can be factors that build on preconceptions of how a
homosexual (in this case) should act, i.e. in accordance with a typical Swedish
image of how homosexuals act. These preconceptions, which vary from officer
to officer, risk creating a stereotypical picture, not only of how homosexuals
should act, but how homosexuals in Sweden should act and express
themselves. These norms and preconceptions build up a Swedish discourse for
how, for example, homosexuals should behave and act, but which is not
universal. Ramböll judges that on a general level it is problematic for a
person’s credibility to be influenced by the extent to which they meet the
requirements in a Swedish discourse, particular as asylum seekers cannot
reasonably be expected to know this.

3.3.3 Challenge of making a correct assessment of credibility in the
       Netherlands and Germany
This section reports on the challenges in the work to make correct
assessments that have appeared during interviews with representatives of
national immigration authorities in the Netherlands and Germany.


4
    Lesbian, Gay, Bisexual and Transgender

                                                                                 19
In the Netherlands, asylum seekers are expected to provide complete
information about the reasons why they are seeking asylum by the second
interview at the latest. If these reasons are cited later on, it will affect their
credibility.

      If they provide part of the information necessary to evaluate their
      asylum claim at a later stage, it becomes more difficult for them to
      convince the IND of their eligibility for asylum.

According to the quote, if they change their account, it will affect the
assessment of their credibility. From a legal perspective, it is possible to add
information later on, and if there are indications in previous accounts (for
example an indication that there is something the person does not want to talk
about), the information can be accepted. However, the earlier the information
comes forward, the better.

      The general rule on how to treat refugees who tell you about their LGBT
      orientation only after having fled is, ‘If you knew you were LGBT, you
      should have told us before’. In any case, this is better than not having
      come out back in the home country. Put it in an even more general way,
      the earlier the coming-out, the better for the legal process.

This quote shows that the time aspect affects credibility, and that people who
cite reasons during the course of the process will negatively affect their
credibility. ‘Coming out’ after they have fled is not neutral from an assessment
perspective and the introduction of new facts affects credibility.

      If a person ‘becomes’ LGBT after having fled, this is OK, too. However,
      this has to be a ‘new fact’ for the asylum seeker him/herself. Obviously,
      however, this constitutes significant problems of credibility.

This quote shows that there is an opening for people who become aware of
their orientation after they have fled. Although they say that it is ‘OK’, it does
mean that people lose credibility.

In Germany, they view sexual identity as a constituent part of an individual’s
personality and that it can be considered to be a natural or inalterable trait. If
a homosexual is forced to deny this fundamental part of their personality, their
personal rights would be reduced in an unacceptable way, according to a
German judgement from 2008.

However, an asylum seeker has to prove their orientation in order to be able to
invoke this reason with credibility. A special evaluation is carried out first, after
which the asylum seeker has to be able to prove that their statement on
sexual orientation is correct, by referring to expert opinions.

      In order to gain the necessary certainty of conviction, the testimonies of
      the asylum seeker firstly have to be specially appraised. Since the
      asylum seeker is principally obliged to present their orientation, they
      must properly determine the necessary means to prove his/her sexual
      proclivity and, e.g., present an expert opinion.

This quote shows that the authenticity of a person’s sexual orientation must be
determined in order to make an acceptable assessment of the testimony.
Sexual orientation can also be supported by a decision-maker or a judge. In
interviews, this is exemplified by the asylum seeker being asked to prove their
statement by showing photographs, or by kissing their partner in front of the
civil servant. According to a human rights activist, there are suspicions among
civil servants of asylum seekers who invoke sexual orientation as the reason
for asylum.


                                                                                     20
According to Ramböll there is similarity here with the Swedish process, where
sexual orientation must not be assessed or affect credibility, but the issue of
credibility in the statement on sexual orientation affects the credibility of the
story as a whole. The credibility of the asylum seeker is assessed based on
stereotypical preconceptions of how a homosexual is expected to act.

Assessments around ”self-inflicted after-flight conditions” apply to people who
come out in Germany. This constitutes grounds for asylum if the asylum
seeker was potentially threatened before leaving the country. However, the
assessment of credibility is more stringent in these cases:

      To what extent the individual succeeds in rendering his/her potential
      threat to persecution credible or in proving a connection between the
      "coming out" and pre-flight events, is a different story and may be the
      reason for the (false) impression that in such cases a recognition of
      asylum cannot be granted.

This quote shows that strict requirements are placed on arguments that a
person uses to convince the officers that they face a potential threat of
prosecution after he or she has come out. These requirements are so strict
that they may have contributed to the false impression that asylum cannot be
granted on these grounds.


3.4     Forward risk assessment
When examining all asylum cases, a forward assessment is carried out to
assess the extent to which the fear can be considered to be well-founded
based on the situation in their home country. This happens in all cases and in
the examination of all reasons for asylum. When a person is able to talk about
persecution or punishment by a court, the forward risk assessment is not
difficult to carry out. However, there are cases where the person has hidden
their sexual orientation/gender identity in their country of origin and has
therefore not been persecuted, harassed or punished. This makes the
assessment much more difficult.

In other words there is reason to study in greater detail how boundaries are
drawn in the forward risk assessment and what arguments are used to support
them.

3.4.1 Steering documents and guiding documents are ambiguous
       when it comes to openness
As already mentioned, the risk assessment is a forward assessment. This
means that it can be done even if the asylum seeker has not talked about any
previous persecution in their home country. In the bill, openness is mentioned
as a factor that can affect the risk assessment.

      If a person has lived in their home country in a way that has
      minimised the risk of persecution, e.g. by hiding their sexual
      orientation, this circumstance can be significant for the risk
      assessment. (2005/06:6)

This quote shows that if a person has minimised their risk of persecution in
their home country, it can affect the risk assessment. However, it does not say
how or to what extent this impacts on the risk assessment. Instead, the bill
states that drawing more detailed boundaries is left to judicial application.
There is a slightly more caustic statement in the preliminary work for people
who have neither lived openly in Sweden nor in their country of origin. The
Social Insurance Committee writes in its report (p. 13):

                                                                                21
      For people who have hidden their orientation both in their country
      of origin and in Sweden, and have only revealed the real situation
      to immigration authorities, the risk of persecution on these
      grounds is only minimal.

The report from the Social Insurance Committee specifies that if people have
lived in hiding and have only talked about their orientation to the immigration
authorities, the risk of future persecution is ‘minimal’. This means that if a
person has neither lived openly in their country of origin nor in Sweden, it
would be difficult to claim a well-founded fear of persecution.

However, there are also reports that specify the opposite, i.e. that you cannot
require that individuals renounce their sexual orientation. The following section
is taken from the bill:

      The Government wants to emphasise the fact that sexual
      orientation must be seen as a fundamental characteristic of the
      individual and something that he or she should never have to
      renounce … … This also applies if a homosexual person has hidden
      their sexual orientation in their country of origin, or has lived in a
      way that has minimised the risk of persecution. (2005/06:6)

The excerpts taken from the bill and the Social Insurance Committee’s report
send double signals. Although there is a clear position for the right of people to
live out their sexual orientation, irrespective of their previous life in their home
country, previous openness is an aspect that is important during a risk
assessment. Ramböll’s assessment is that the preparatory work not only
leaves the field open to interpretation in practice – the guidelines that are
given are contradictory, which also leads to confusion in their application. One
of the experts at the Swedish Migration Board who Ramböll has spoken to gave
the following description of the steering documents:

      I think that it is relatively clear how we should act or assess this.
      It might be difficult if a person says that they want to live openly.
      It is slightly contradictory. You cannot demand that a person hides
      their orientation, but you have to make a probability assessment
      of whether it is probable that the person runs a risk when they
      return to their home country.

This quote shows that experts at the Swedish Migration Board are also
aware that there are contradictions and boundary problems in the
steering documents. However, Ramböll has not noticed that this
awareness has resulted in any action being taken to improve clarity.

3.4.2 Lack of clarity in the steering documents reflected at officer
       level
The lack of clarity that is a feature of the preparatory work and the steering
documents is reflected in the very different perceptions among both officers
and experts at the Swedish Migration Board when making a concrete
assessment. As mentioned above, problems arise particularly when the person
does not have a story of persecution from their country of origin.

      If a person comes here and says that they been persecuted – in these
      cases there are no problems when carrying out an adequacy
      assessment. LGBT matters are difficult. If they have come out in
      Sweden, have never talked about this in their home country and no-one
      in the home country knows about it. When we have to carry out an
      assessment in these cases, there is a wide spectrum of possibilities.

                                                                                  22
      Incidents are described where LGBT people manage in their home
      country, but we do not know what they would be exposed to. Then this
      gets difficult.

The quote above shows that if the person has not lived openly in their home
country, carrying out a risk assessment is considered to be problematic. It
does not seem to be clear how the assessment should be carried out, even if
there are examples of people with a similar orientation or identity being able to
manage.

As the examples above show, the steering documents view the way the asylum
seeker lived in the past as an important factor in the risk assessment, while at
the same time they state that you cannot require that the person lives in
hiding. The emphasis on the way the person has lived in the past can also be
found among experts at the Swedish Migration Board and among officers, even
though there seems to be a joint understanding that you cannot require a
person to hide their sexual orientation/gender identity. An expert also takes up
this issue based on other perspectives, namely the willingness of the asylum
seeker to live openly and the credibility of their statement.

      It is difficult to make an assessment when a person says that ”I
      now want to live openly as a homosexual and if you send me back,
      I will do this anyway and will face the consequences of this”. In
      this situation, the assessment would automatically be that the
      person is considered to be in need of protection and that they are
      at risk. But this can also be a question of credibility, you can look
      at how the person lived in the past and whether this is likely.

There is therefore a line in the practical application that specifies that
the person’s statement on how they want to live in the future should
impact the assessment.

3.4.3 Forward risk assessment in the Netherlands and Germany
This section reports on the challenges in the work on forward risk assessments
that have been come up in interviews with people in the Netherlands and
Germany.

The application in the Netherlands varies depending on the asylum seeker’s
country of origin. However, in general it makes no difference to the
assessment if the person has lived openly or not in the past. If a person is
considered to be an LGBT person in their home country (and it is illegal), this
is seen as a legitimate reason for asylum. However, the asylum seeker has to
show that they would be prosecuted on these grounds if they returned home.
Although the person does not have to have ‘come out’ in their home country,
the asylum seeker must convince the officer that they have not only cited this
reason late in the process in order to be granted asylum.

If a person flees from a country where LGBT people are counted as criminals,
and they come out in the Netherlands, and subsequently do not have a history
of a risk of prosecution, they are not required to live in hiding. However, this is
a recent change; in the past the Netherlands required that people live in hiding
in their home country.

The examination of reasons for asylum in Germany, as is the case in the
Netherlands, only covers the risk of prosecution. The fact that being openly
homosexual, bisexual or transsexual is seen as a crime against good morals is
seen as being irrelevant and is not grounds for asylum. The German Federal
Office and Administrative Courts must only ask if the kind of behaviour will
                                                                                 23
lead to prosecution. Depending on the conditions in the country of origin, they
have to distinguish whether prosecution refers to social expression, sexual
practice or a crime against morality.

However, the answer to the question about how open a person can be about
their orientation is not clear. It is considered to be unreasonable to require a
person to totally deny their orientation in order to avoid prosecution in their
home country. According to one interviewee, an acceptable degree of openness
varies depending on what their actual country of origin is.

      In contrast to freedom of religion, in cases of sexual activity it must be
      taken into consideration that this, regardless of whether it is
      homosexuality or heterosexuality, comes under privacy. If a retreat into
      privacy in the country of origin means that persecution would not be
      very likely, a corresponding level of discrete behaviour is reasonable in
      general.

The quote above shows that if by keeping their sexuality private a person
would influence their risk of being prosecuted, discrete behaviour would be
considered to be a reasonable strategy for the individual. However, this does
not apply to cohabitation, or to whether a person would risk prosecution if their
surroundings noticed their homosexual way of life. Internal criticism has been
levelled at the fact that only the risk of prosecution or punishment by the state
or authorities is being assessed, because persecution often comes from non-
state actors. This persecution, which can be just as serious, does not constitute
grounds for asylum.


3.5    Blind spots in the asylum examination
There are some general problems that reappear in the asylum examination
depending on who the asylum seekers are. The study has shown that gender
identity as a reason for asylum is basically invisible. All examples in the
interviews are based on sexual orientation and all cases speak about sexual
orientation as if the asylum seeker were a man. There is therefore reason to
describe the blind spots of the asylum examination.

3.5.1 Asylum examination’s four scenarios
It is possible to isolate four different scenarios associated with examining
sexual orientation and gender identity as reasons for asylum. The four
scenarios that are summarised in the table below are based on situations that
have been mentioned in the interviews with representatives of the Swedish
Migration Board, so they can therefore be said to be empirically based.

Table 1 Scenarios in asylum examination

                                          The person identifies themselves in
                                          accordance with their sexual
                                          orientation or gender identity in their
                                          home country and has lived openly
The person themselves cites these
                                          The person identifies themselves in
reasons for asylum
                                          accordance with their sexual
                                          orientation or gender identity in their
                                          home country and has lived in hiding
                                          The person comes out in Sweden
                                          The officer or assistant assess that
The officer or assistant assesses that
                                          the person can apply for asylum by
the person can cite these reasons for
                                          invoking sexual orientation/gender
asylum
                                          identity


                                                                                    24
The intention of clarifying these scenarios is partly to show the possible
situations that can arise in asylum examination and partly to clarify the specific
problems in asylum examination arising from the fact that the scenarios are
not clear in the steering documents, guidance or application.

The Swedish Migration Board’s guiding decision for sexual orientation is about
a homosexual Iranian man who was sentenced in Iran for his homosexuality.
This decision is about the scenario when the person has identified themselves
based on their sexual orientation/gender identity in their homeland and has
lived openly there. However, the study shows it is more unclear how
examinations should be carried out for other scenarios. It is most difficult to
carry out correct risk assessments in cases where the person has not been
persecuted. In this instance, the officer needs to make an assessment as part
of their examination about what it means to live openly, which will ultimately
affect the possibility of the person staying in Sweden.

The issue of assessing credibility is also most problematic in cases where
asylum seekers have not been persecuted in their home country; firstly
because, as this study has shown, their statement about their gender identity
or sexual orientation is included as a fundamental element of the assessment
of their general credibility; secondly, because credibility tends to be affected
when new reasons are introduced, in line with the official statement released
by the Director of Legal Affairs.

Finally, the consequences of the lack of clarity in the definitions and guidelines
for interpreting the concepts are greatest in the scenario where an officer or an
assistant assesses whether the asylum seeker can cite these reasons for
asylum. The study shows that a lack of guidance risks officers basing their
decisions in the assessment on their own disparate preconceptions of sexual
practice, sexual expression and how gender is manifested.

As well as the clearest guidance being linked to the least complex scenario, the
study also shows another result, which indicates blind spots in the
examination. When the interviewees were asked to state which image they had
in their minds when talking about sexual orientation and gender identity as
reasons for asylum, everyone named a person who had been persecuted in
their home country. One of the experts at the Swedish Migration Board
answered the question in the following way:

      Yes, this is of course a person who has often suffered something in
      their home country. Then you can understand that it is not
      accepted and they can suffer badly; this is the person you have in
      your mind. I don’t know how, things are so different where they
      come from. But people may have had sex or held hands with
      someone and the neighbours have seen something.

This quote is also representative of the other replies, and the interviews show
how dominating this scenario is in the discussion of these two reasons for
asylum. Ramböll also judges that this scenario is the least complex from a
principle perspective – in this instance, there is an asylum seeker that can
support their statement of a well-founded fear with a story of persecution in
their home country. It is Ramböll’s assessment that there is a risk that the
dominance of this scenario makes other scenarios, where problems are
greater, invisible.

However, it is not only other scenarios that are made invisible. Ramböll
believes that the scenario of a person who has been persecuted in their home
country as the dominating scenario is even narrower as it is only about sexual
orientation, or more precisely, a homosexual man. In the interviews they talk
                                                                                   25
about making exceptions if the asylum seeker is a (homosexual) man. This
also appears in the Aliens Handbook where, in the previously cited passage on
openness, it states that:

      Being able to live openly means that the asylum seeker must be able to
      live together with the person he wants, to meet and to be together in
      the same way and to express himself in the same way as heterosexuals,
      without risking persecution.

The asylum seeker must therefore have the right to live together with the
person ‘he’ wants. Even the reference to openness, which has to be assessed
based on how a heterosexual lives, seems to imply that it should be based on
how a heterosexual man lives.




                                                                               26
4.   ANALYSIS AND CONCLUSIONS
     In the previous chapters we described asylum examination in Sweden, the
     Netherlands and Germany based on a number of different areas. The purpose
     has been to show areas where the examination of reasons for asylum is
     problematic, not only for the asylum seeker but also for the Swedish Migration
     Board.

     In this section we will report the results of the study based on the theoretical
     bases that were presented in Chapter 2. This chapter aims to provide greater
     clarification, and we will be showing how heteronormative mechanisms often
     operate in the areas that we have presented in the study. The analysis will
     therefore be based on the same areas that were presented in the previous
     chapter. The conclusions will be specified in more clearly defined challenges
     that the Swedish Migration Board faces when examining sexual orientation and
     gender identity.

     4.1     Definition of reasons for asylum
     The study has shown that when the definitions are wide and difficult to
     understand, and when there is no guidance about how to understand them,
     officers tend to base their judgements on their own preconceptions;
     preconceptions that can be narrow and limited.

     Gender and sexual orientation are divided in asylum law, with sexual
     orientation defined as homosexuality, bisexuality and heterosexuality. To be
     able to use this definition, it must be possible to distinguish these three from
     each other. However, there is no uniform description of what actions/feelings
     or other factors constitute a homosexual, bisexual or heterosexual person.
     When sexual orientation is handled in asylum examination, there is a tendency
     for sexual practice to be the only sign of sexual orientation as there are no
     other clear ’indicators’ of a person’s sexual identity. Subsequently, people who
     have had same-sex sex are assessed as being homosexual, irrespective of how
     they define themselves. As the steering documents do not clarify how to define
     homosexuality and bisexuality, it is up to the individual officer to make this
     assessment. The study has shown that when applying asylum law, this has
     been reduced to only being about same-sex sexual practice. Not only does this
     risk people being classed as homosexual even if they are not, it also means
     that bisexuality ‘disappears’ as part of sexual orientation as a reason for
     asylum. A bisexual person in a same-sex relationship will pass as a
     homosexual, while a person in a relationship with someone of the opposite sex
     will pass as a heterosexual due to the lack of same-sex sexual practice.

     When it comes to sexual identity, the definition is very wide and includes both
     biological sex and aspects of gender that are socially and culturally defined.
     However, Ramböll judges that this wide definition is not what is being applied.
     This definition opens out because there is not one authentic, unchanging
     identity; gender identity is something that is not only culturally and socially
     defined, but also something that changes over time. This seems to correspond
     well with the queer theory definition of gender. However, this study has shown
     that it has been difficult for the officers to concretise the definition.

     There is a risk that people’s understanding will be based on a two gender
     model, where there is ‘male’ and ‘female’ and these are the gender identities
     that a person can have. The strategy is the same for sexual orientation –
     where the meaning is unclear, the officer will base their assessment on their
     own preunderstanding. Sexual orientation risks being reduced to sexual
     practice, and gender identity to a question of ’male or female’.


                                                                                     27
The challenges facing the Swedish Migration Board in creating clear definitions
are:

•     to ensure that the concrete bases for identifying sexual orientation as a
      reason for asylum are not a mixture of sexual orientation and sexual
      practice.
•     to ensure that there are concrete bases for identifying gender identity as a
      reason for asylum.

4.2    Challenge of ensuring a correct story
The study has shown that it is problematic to get asylum seekers to talk about
issues that deal with sexual orientation and/or gender identity. This could be
because these issues are difficult to talk about due to the nature of the
questions and the relationships between the asylum seeker and the authority
representative but could also be because the asylum seeker is pursuing their
own line with the Swedish Migration Board to try to maximise their chances of
being granted asylum based on their own preunderstanding.

However, there are also other aspects that complicate the situation. These two
reasons for asylum are defined in relation to a Swedish norm system that
states what is both acceptable and what is not, but also where the boundaries
lie when identifying what characterises, for example, a homosexual and a
heterosexual person. The asylum seeker has several norm systems to deal
with. The Swedish norm system is based on a clear division between, for
example, heterosexuality and homosexuality. In the Swedish discourse, it is
difficult for a person to describe themselves as a homosexual if they live
together with someone of the opposite sex. If the asylum seeker is to be able
to invoke these reasons for asylum, they must have an understanding of what
the Swedish norm system is like and how their own feelings and/or
experiences relate to this. Coming out in a Swedish context means that the
person has to identify themselves with the categorisations and definitions in
Sweden and then invoke these reasons for asylum in a new examination. This
also applies when the person has lived openly in their home country.

There are signs that suggest that people at the Swedish Migration Board view
Sweden as an open society, where it is easier for people to live out their ‘true’
sexual orientation and gender identity, than in countries where people risk
persecution for this.

        There are examples of cases where you ask – ’Are you homosexual?’ and
        the person answers no. ’But you are talking about sexual relations with
        other men...’. It is only when they come to an open society that they
        realise that: ’I am homosexual’.

The interviewee, who is an employee at the Swedish Migration Board, says
that the person has somehow buried their homosexuality inside themselves
without being aware of it, and they now understand their orientation by being
in an open society. This quote shows a view of homosexuality as clearly
defined feelings that the individual can become aware of, but based on queer
theory, homosexuality is dependent on the discourse and so it is not
meaningful to talk about someone ‘actually being homosexual’ as the definition
is always socially and culturally-determined. The person can redefine
themselves but only based on the definitions and the norms that prevail in
Sweden.


                                                                                 28
Ramböll judges that there is reason to strengthen awareness of the normative
influence in definitions of sexual orientation and gender identity, as this would
help people approach these issues with greater accuracy and fewer prejudices.

The study shows that there is one challenge that the Swedish Migration Board
has to face to ensure a correct story:

•     to strengthen competence in understanding and analyzing normative
      structures.

4.3    Challenges when assessing credibility in relation to these
       reasons for asylum
The study shows that there is a lack of clarity when assessing the credibility of
sexual orientation and gender identity as reasons for asylum.

A person’s sexual orientation must not be brought into question, but there are
signs that indicate that credibility is still assessed in statements about sexual
orientation. Several of our interviews show that there is a risk that distrusting
a person’s sexual orientation can affect the assessment. Ramböll believes that
it is more difficult to identify this if this kind of assessment is implicit and
disguised in other issues; this would also provide unclear information if the
case had to be re-examined.

One strategy for maintaining the heteronorm is, as has previously been
mentioned, stereotyping, through which a few, simple, easy-to-understand and
recognised characteristics of a group are the ones that represent everyone in
this group. By simplifying and defining people in this way, they are reduced to
something limited and predictable. Ramböll believes that when assessing
credibility there is a risk that heteronormative mechanisms will disadvantage
people in the asylum examination in a concrete way, not because their stories
are not credible, but because they do not fit into the officer’s perception or the
guidance’s description of how a person should look or act who cites these
reasons for asylum.

This study shows that people who live openly as a homosexual in Sweden and
have a steady relationship with someone of the same sex can pass as a
homosexual relatively easily. It is Ramböll’s assessment that the risk of a
credibility assessment based on stereotyping people with a certain sexual
orientation is yet another example of the risk of heteronormative mechanisms
affecting the asylum examination. This means that preconceptions of what
characterises a (in this case) homosexual, and which are based on individual or
culturally-determined markers, affect the credibility assessment in the asylum
examination.

In practice this means that asylum seekers risk being called into question
simply because they come up against the stereotypical preconceptions that
officers and decision-makers have about how people of a certain sexual
orientation or a certain gender identity should act. There is a risk that a
person’s credibility and, in the long run, the outcome of their assessment, will
be affected by the extent to which their appearance, behaviour, the way they
express themselves, etc., corresponds to the preconceptions that individual
officers and decision-makers have of how people should express their gender
or sexual orientation.

The study shows that the Swedish Migration Board faces two main challenges
when assessing credibility in relation to these reasons for asylum:



                                                                                29
•   to ensure that any distrust about sexual orientation does not impact the
    rest of the examination.
•   to ensure that credibility assessments are not carried out based on
    stereotypical preconceptions of what it means to be or live as a
    homosexual, bisexual or heterosexual person.




                                                                               30
4.4      Challenge of ensuring a correct risk assessment
The study has shown that the forward risk assessment is problematic for these
reasons for asylum. The steering documents state that it must be likely that
the person would be at risk if they returned home. If an asylum seeker has
been a victim of persecution, the forward assessment of whether the fear can
be considered to be well-founded is relatively uncomplicated, but if the person
has not lived openly in their home country, they do not have this kind of story
to tell. The risk assessment is carried out based on a general assessment of
the situation in the country and the probability that the asylum seeker would
live openly if they returned home.

A person that has come out while they are in Sweden and has started to live
openly is in a relatively good position to also be able to live openly after they
have returned home. According to the preparatory work, someone cannot be
required to stop living openly with their sexual orientation or gender identity,
even if they had previously hidden their sexual orientation or gender identity in
their home country. As long as the situation in the country is judged to be
serious enough, a person that has lived openly is in a good position to be
allowed to stay.

There are no clear guidelines around what openness actually means. The
Aliens Handbook states that people have the right to live out their ‘orientation
as a heterosexual’. It is Ramböll’s assessment that this is a clear example of
how a heterosexual norm guides the assessment of sexual orientation and
gender identity. Being entitled to live out your sexual orientation as a
heterosexual person not only implies that it is possible to draw boundaries but
also that the way heterosexual people live should be the norm for non-
heterosexuals as well. In practice, asylum examination could risk
strengthening the restriction of behaviour and ways of life that are essential for
many people, just because they are incompatible with the heteronorm.

What does it mean to live out your orientation or identity as a heterosexual?
This is not clear. For people from certain countries, there would be major
differences for men and women, where the difference between living openly
with their sexual orientation or gender identity and living in hiding is being
erased. Ramböll also judges that it is difficult to refer with any certainty to this
guideline when dealing with a female asylum seeker from a country where
women's sexuality is oppressed, while still maintaining that the person has the
right to live out their orientation ‘openly’.

This kind of text also results in practical problems for administration and
decision-making. The lack of clarity around openness and the lack of guidance
in what is meant by a person living out their orientation as a heterosexual
mean that its application varies among officers. Based on interviews with the
representatives of the Swedish Migration Board, there are two main lines taken
in the assessment – the assessment is either based on how a person has lived
in the past, or on how the person wants to live. Ramböll judges these are
actually two different bases to work from. The former creates problems for
people who come out in Sweden, as they lived in hiding in the past. The
second creates clear problems in drawing boundaries for the assessment. One
officer expresses this in the following way:

      I have never seen guidelines about the extent to which someone is
      allowed to live out their sexuality or identity. /…/If you return home and
      become the country’s leading champion for these issues – if you assess
      it based on this, no-one would be rejected. It is difficult to find a line
      that you can justify. This means that you talk about what has happened.


                                                                                  31
It is Ramböll’s assessment that each individual officer has a dilemma in the
choice of which basis to use – they can either base their judgement on how the
person has lived in the past, or on how they will live in the future. If the officer
chooses the former, a person that has lived in hiding in their home country has
little chance of being granted asylum. This is described as being unacceptable
in many of the interviews, and is an alternative that the Swedish Migration
Board intends to distance itself from. In the second choice, the individual
officer, bearing in mind the lack of guidelines, will draw boundaries about a
‘reasonable’ level of how a person should live out their sexual orientation or
gender identity. As the officer in the quote above shows, it is difficult to find a
level that can be justified and Ramböll judges that the preparatory work and
Aliens Handbook provide little guidance.

When there is a lack of facts, the assessment will unavoidably be hypothetical.
In these cases, there is a risk that heteronormative preconceptions about what
it means to live openly and in accordance with a certain sexual orientation or
gender identity will restrict the asylum seeker’s chances of being granted
asylum.

This study showed one key challenge that the Swedish Migration Board has to
face in the forward risk assessment:

•     to find a stable practice around what it means to live ‘openly’, which does
      not rely on heteronormative preconceptions.

4.5    Blind spots in the asylum examination
The study has shown that there is a tendency for some conceivable scenarios
in the asylum examination to be made invisible and forgotten.

As previously mentioned, the Swedish Migration Board has presented a guiding
decision for sexual orientation. The study shows that cases where the person
has been a victim of harassment, persecution or sentenced for their sexual
orientation are the least problematic. This applies in all areas covered by the
study – credibility assessments, risk assessments and the problems with
definitions.

Ramböll judges there to be a tendency for officers, either consciously or
unconsciously, to go for the other alternatives partly because of the problems
surrounding them when it comes to defining boundaries and the bases for
assessments. As we have seen above, gender identity is about the individual’s
own experiences and perceptions about the gender they belong to. As with
sexual orientation, it is difficult to find ’indicators’ of a person’s gender, i.e. it is
difficult to concretise how gender identity can be considered to be grounds for
a well-founded fear of persecution. It is Ramböll’s assessment this leads to
gender identity being made invisible as grounds for being a refugee in the
examination and that people who could invoke this reason are not identified in
this process.

Aside from the fact that certain scenarios and gender identity as a reason for
asylum are made invisible, it is also clear that the norm in the asylum process
is a male asylum seeker. This comes out in both the interviews and the guiding
documents. The clearest example has already been dealt with in connection
with the discussion on the forward risk assessment; i.e. where it is clear that
the guideline stating that people have the right to live out their orientation as a
heterosexual, actually means that they have the right to live out their
orientation as a heterosexual man. It is Ramböll’s assessment that this can
affect asylum examination for female asylum seekers. The problems around
assessments and unclear legal practice for examining the asylum cases of male

                                                                                       32
asylum seekers risk being even greater for women in the same situation, and
discretion where women are concerned is even greater as the guidance for
certain situations cannot be used for them.




                                                                              33
The study shows the challenges that the Swedish Migration Board has to deal
with in relation to the blind spots in the asylum procedure. They are:

•     to strengthen awareness among the staff at the Swedish Migration Board
      about normative features in the examination.
•     to supplement the guidance to ensure that gender identity as a reason for
      asylum is not at risk of being made invisible.
•     to supplement the guidance to ensure that women do not risk being made
      invisible.

4.6      Sweden in an international comparison
It is clear from the description of the situation in the Netherlands and Germany
that other countries are having similar problems to Sweden when it comes to
setting boundaries in some areas for these reasons for asylum. The ambiguity
that they have when assessing credibility and carrying out risk assessments is
very similar to Sweden.

In the Netherlands, asylum seekers used to have to live in hiding, but this is
no longer a requirement. However, in Germany, sexuality is seen as something
private and if a restrained way of life could affect the risk of being prosecuted,
then this is taken into consideration. In Sweden, the same problems of
drawing boundaries exist – and although you cannot force anyone to hide their
orientation or identity, it is not clear what is meant by living openly.

As for risk assessments, there is a difference between Sweden and the other
countries as the assessment in Sweden is based on an evaluation of the extent
to which the asylum seeker has reason to feel a well-founded fear of
persecution. In both the Netherlands and Germany, the risk of legal reprisals is
what is assessed.

In the Netherlands, sexual orientation must not be questioned. At the same
time credibility is clearly affected if these reasons are cited late in the process.
However, people are aware that these aspects are difficult to talk about. In
Sweden, sexual orientation must not be brought into question either, but, as
part of a general assessment of the credibility of a person’s story, an
assessment is often made of the asylum seeker’s credibility when it comes to
their sexual orientation. There are no explicit criteria for this kind of
assessment, and it is often based on stereotypical preconceptions of how
people with a certain sexual orientation should act and express themselves.

In Germany, they believe that homosexuality can be verified through a
statement from a medical expert or through an examination by a decision-
maker or judge. According to the testimony, the latter is based on what can be
characterised as stereotypical preconceptions of homosexuality. It is the
assessment of Ramböll that in this sense, the evaluation of sexual orientation
uses the same kind of heteronormative mechanisms that operate in both
Sweden and Germany, even though the German example is more conspicuous.
In both of these countries, the credibility of sexual orientation is evaluated,
even though the steering documents in Sweden state expressly that this
should not take place. The interviews show that this still takes place, but in a
less obvious way than in Germany.

In Sweden, the Director of Legal Affairs has made an official statement that
clarifies that a changed story linked to sexual orientation as a reason for
asylum must be accepted and that this must not affect the credibility of a new
examination. The purpose has been to compensate for shortcomings in the
process by giving the asylum seeker more time. This distinguishes Sweden

                                                                                   34
from the other countries that do not have this exception. In both the
Netherlands and Germany it is clear that it is better for the asylum seeker if
these reasons come out at an early stage. The earlier the better, because
credibility is reduced the more time it takes for the reasons to invoked.
However, this study has shown that in practice reasons cited later on in the
process also result in less credibility in Sweden as well.

The overall lesson that can be drawn from the international perspective is that
all countries face the same problems of drawing boundaries. Assessing the
credibility aspect is an example of where people carry out the same kind of
assessment in the various countries, despite the difference in rhetoric, and that
there is less transparency in Sweden.

The study shows that there is a clear challenge that the Swedish Migration
Board faces in its work to harmonise the asylum process at EU level:

•   to strengthen awareness of the problems about drawing boundaries when
    examining sexual orientation/gender identity and their equivalents as
    reasons for asylum in European collaboration.




                                                                                 35
5.   CONCLUDING REFLECTIONS AND
     RECOMMENDATIONS
     This chapter presents a concluding reflection on the earlier sections of this
     study. The chapter aims to provide a basis for Ramböll’s recommendations to
     the Swedish Migration Board based on the overall picture of the study’s results.

     5.1    Concluding reflections
     Sexual orientation and gender identity present challenges both for people
     applying for asylum and the Swedish Migration Board. Individuals applying for
     asylum in Sweden have to invoke the reason for asylum themselves. This
     responsibility, and the responsibility of making their story credible, is borne by
     the asylum seeker. However, when it comes to sexual orientation and gender
     identity, individuals need to know more than just the reasons for asylum. They
     also have to understand how their experiences relate to the Swedish norm
     system, as the definitions of gender identity and sexual orientation are not
     universal.

     The challenge for the Swedish Migration Board is to carry out a process that is
     legally certain, which means that all asylum seekers should be examined in the
     same way in accordance with Swedish law. However, this study has shown that
     there are features in both the steering documents and the guidance that make
     it difficult for individual officers to examine applications in the same way.
     Problems with vague definitions, contradictory guidelines and unclear guidance
     have repercussions among individual officers, and, for example, it is not
     surprising that the view of how credibility should be assessed and how risk
     assessments should be carried out varies among the officers. However, this
     study has been able to show that the gaps that occur due to the shortcomings
     in the examination of sexual orientation and gender identity mentioned earlier
     can be understood due to the heteronormative mechanisms, where
     assessments, clouded by division and stereotyping, often form the basis of the
     examination. This causes problems for the asylum seeker as their assessment
     will depend on the officer or decision-maker that is allotted to them, but also
     presents problems for the Swedish Migration Board in its ambition to carry out
     a legally certain process.

     However, Ramböll judges that the challenges faced by the Swedish Migration
     Board that are presented in this study constitute a deeper problem relating to
     how these reasons for asylum relate to the legal system. The reasons for
     asylum are based on a person’s gender identity and sexual identity, which are
     important components of each person’s personality. In some sense it is the
     ‘authentic identity’ that forms the basis of the assessment of these reasons for
     asylum. Asylum law does not differ from other parts of the legal system; it is
     based on the idea that it is possible to distinguish the non-authentic from the
     authentic. However, the definitions of these reasons for asylum are not based
     on there being an authentic, unchanging identity, but that the person’s gender
     identity and sexual orientation are something that are culturally and socially
     defined and changeable over time. It could be said that these reasons for
     asylum are based on a criticism of essentialism, while this kind of essentialism
     forms the fundamental, conceptual building blocks of the legal system.

     Ramböll judges that the challenges described in this study can be related to
     this underlying problem. They can also be related to the gaps that occur due to
     unclear and contradictory definitions and gaps in the guidance, which means
     that the heteronormative mechanisms are able to operate at officer level.

     This underlying problem is also fundamental in the sense that it cannot easily
     be rectified. The recommendations presented in the section below will
                                                                                      36
therefore be symptomatic to some extent. They will not solve the basic
problem, but will identify clear and concrete aspects that the Swedish
Migration Board can deal with in order to reduce the impact of the most
obvious shortcomings that this study has revealed.

5.2     Recommendations
In this section Ramböll presents the recommendations for continued work in
this area. These recommendations are based on the challenges presented
earlier in this study.

Strong guidance
The lack of clarity and hesitance at officer level can, according to Ramböll, be
partly explained through the shortcomings and ambiguities in the steering and
guiding documents. The Swedish Migration Board should therefore continue in
its ambition to clarify the circumstances around these reasons for asylum.
Ramböll judges that this should take place through

•     More guiding decisions and clarifying official statements
•     Continually developing the handbooks.

More guiding decisions could reduce the lack of clarity in the assessment of, for
example, the aspects of credibility and openness. This could also help to
concretise and make visible gender identity as a reason for asylum. The official
statement on enforcement from the Director of Legal Affairs is an example of
strong guidance that can help to increase clarity around important
considerations.

Continually developing the handbooks will help to rectify the problems
associated with the clearly heteronormative bases used when assessing, for
example, openness. It could also reduce the risk of women that cite these
reasons for asylum being made invisible.

Training officers and experts at the Swedish Migration Board
A great deal of responsibility for the complex examination of sexual orientation
and gender identity rests with the individual officers and decision-makers. The
study has shown that there is a need to develop competence among individual
officers in order to strengthen the conditions for a process that is legally
certain. There is a generally recognised problem around the fact that these
reasons for asylum and their examination need a particularly critical approach
to normative elements. It is Ramböll’s assessment that this competence can be
achieved through training.

Training measures should aim to strengthen competence in the following areas
in order to develop the quality of the process:

•     to strengthen awareness among the staff at the Swedish Migration Board
      about normative elements in the examination.

This could help to reduce the impact of heteronormativity in the assessment,
for example, by ensuring that any distrust surrounding sexual orientation does
not influence the rest of the examination and by ensuring that the assessment
of credibility is not based on stereotypical preconceptions of sexual orientation
or gender identity.




                                                                               37
6.   APPENDIX 1 ASYLUM LAW BACKGROUND
     To provide greater clarity, the legal problems are presented below in the order
     that they typically occur when applying for asylum in Sweden.

     6.1     Application
     A person normally applies for asylum in Sweden as soon as they arrive. The
     first stage in the examination is normally an assessment of whether the case
     should be dealt with in another country in accordance with the Dublin
     Regulation. This regulation states that it is the European country where the
     asylum seeker first arrives after fleeing their country that should examine the
     application for asylum.

     6.1.1 Right to asylum
     Sweden is a signatory to the UN’s Convention Relating to the Status of
     Refugees, known as the Geneva Convention, which means that it undertakes
     to provide asylum to a refugee in accordance with the conditions set out in the
     convention. The regulations of the convention have been introduced into
     Swedish law in the Aliens Act (SFS 2005:716).5 A person who is a refugee as
     set out in the Aliens Act will be entitled to asylum in Sweden. Chapter 1
     Section 3 states that asylum means a residence permit granted to an alien
     because he or she is a refugee. The Swedish definition of a refugee, which
     generally corresponds to the one set out in the Geneva Convention is found in
     Chapter 4 Section 1. Here it states that an alien is a refugee if he or she is
     outside the country of his or her nationality, because he or she feels a well-
     founded fear of persecution on grounds of race, nationality, religious or
     political belief, or on grounds of gender, sexual orientation or other
     membership of a particular social group and is unable, or because of his or her
     fear is unwilling to avail himself or herself of the protection of that country.

     In Chapter 4 Section 1 Paragraph 2 it also states that this applies irrespective
     of whether it is the authorities of the country that are responsible for the alien
     being subjected to persecution or whether these authorities cannot be
     assumed to offer protection against persecution by private individuals.

     A refugee also refers to an alien who is stateless and who is, for the same
     reasons that are specified in the first paragraph, outside the country in which
     he or she has previously had his or her usual place of residence and is unable
     or, because of fear, unwilling to return there.

     6.1.2 People otherwise in need of protection and others in need of
            protection
     A residence permit can also be granted to a person that does not meet the
     requirements to be a refugee if he or she belongs to one of the categories of
     people in need of protection. According to Chapter 4 Section 2, a person
     otherwise in the need of protection is an alien who in cases other than those
     referred to in Section 1 is outside the country of his or her nationality,
     because;

     1. there is well-founded reason to assume that if the alien returned to his or
     her home country, he or she would run the risk of suffering the death penalty
     or being subjected to corporal punishment, torture or other inhuman or
     degrading treatment or punishment, or as a civil person would run a serious or
     personal risk of being injured due to generalised violence resulting from
     external or internal armed conflict, and
     2. the alien is unable, or because of the risk that was set out in Section 1, is


     5
         In the rest of this report, all section references are from the Aliens Act, unless otherwise stated.

                                                                                                                38
unwilling to avail himself or herself of the protection of his or her home
country.

The meaning of people otherwise in need of protection is set out in Chapter 4
Section 2a where it states that a person otherwise in need of protection is an
alien who in other cases than those referred to in Sections 1 and 2 is outside
the country of his or her nationality, because he or she

1. needs protection because of external or internal armed conflict or, because
of other severe conflict in the country of origin, feels a well-founded fear of
being subjected to serious abuses, or
2. is unable to return to his or her country of origin because of an
environmental disaster.



The main difference between a residence permit on the grounds of being a
refugee (asylum) and a residence permit on the grounds of being considered to
be in need of protection can been seen through a comparative reading of
Chapter 4 Sections 2b-c. This section of the act shows that a foreign national
can be excluded from being seen as a refugee if they have been found guilty of
a breach of the peace, human rights or a serious non-political crime, while an
alien can also be excluded from being considered to be someone in need of
protection if they constitute a threat against the security of the country.

If an alien is classed as a person otherwise in need of protection and commits
an offence in Sweden that is punishable by imprisonment, they are more likely
to be expelled, whereas if an alien is classed as a refugee who needs a haven
in Sweden, they may only be expelled if they have committed an exceptionally
gross offence. This is set out in Chapter 8 Section 11 paragraph 2 and Chapter
8 Section 8.

6.1.3 Exceptionally distressing circumstances
In addition to the grounds of being a refugee or the applicant being a person in
need of protection, Chapter 5 Section 6 also states that a residence permit can
be granted to an alien if an overall assessment of the alien’s situation reveals
such exceptionally distressing circumstances that he or she should be allowed
to stay in Sweden.

This same section also states that in making this assessment, particular
attention shall be paid to the alien’s state of health, his or her adaptation to
Sweden and his or her situation in the country of origin. In Paragraph 2 of the
same section, it states that children may be granted residence permits under
this section even if the circumstances that come to light do not have the same
seriousness and weight that is required for a permit to be granted to adults.

6.1.4 Specific information about persecution due to sexual orientation
Since the introduction of the new Aliens Act, persecution on the grounds of
gender or sexual orientation has been included as grounds for asylum, instead
of – as was the case before – possible grounds to be included as a person
otherwise in need of protection.

This reform had previously been discussed in relation to the introduction of
conditions for people otherwise in need of protection. In the preparatory work
for this reform, a kind of interpretation was provided that required that
homosexuality or belonging to a specific gender be considered to constitute
membership of a particular social group as set out in the Geneva Convention
(Government Bill 1996/97:25 p. 96). At that time there was no reason to
believe that the majority of the EU’s member states would not accept this kind
of solution. As the Government believed that it was important to try to achieve
                                                                                  39
a fairly uniform international approach when applying the protection
regulations in the Refugee Convention, they realised that Sweden would
definitely adapt the convention in a way what would not deviate significantly
from the application of other countries. As can be seen with the wording of
Section 4 Chapter 1 that now applies, the Government could, however, state
that even more countries have established that persecution on the grounds of
gender or sexual orientation can constitute grounds for being a refugee. In
addition, UNHCR stated in its guidelines that a correct interpretation of the
concept of membership of a particular social group includes both gender and
sexual orientation, and that women and homosexuals can also constitute
examples of social groups that are covered by the Convention’s concept of a
refugee (UNHCR, Guidelines on international protection: Gender-Related
Persecution, p.30; UNHCR, Guidelines on international protection:
”Membership of a particular social group”, p.12).

As it was also likely that the majority of EU countries would not oppose this
interpretation of the concept, bearing in mind the legal developments (and the
general opinion) in this area, it was decided to establish in law that a person’s
gender and sexual orientation could be included in the concept of membership
of a particular social group.

It is important to note that the Swedish Government has not introduced any
new grounds for refugee status; the grounds for asylum are still a well-
founded fear of persecution due to membership of a particular social group.
The new legislation clarifies that in Swedish law, gender and sexual orientation
are considered to be grounds for membership of a specific social group.

6.2    Examination of the asylum seeker’s case
Examining the asylum seeker’s case is based on the situation in the country
they have fled, which means that the asylum seeker must be able to show that
he or she actually comes from this country. The easiest way of doing this is to
show valid identity documents from the country. However, in some states the
authorities are not able to issue identity documents, for example because of
the state collapse in Somalia. In these instances, the identity/country of origin
is determined in different ways. This could be, for example, through a
knowledge or language test.

6.3        Some important issues for the examination
6.3.1 Sur Place issue
The regulations set out in Chapter 4 of the Aliens Act indirectly shows that it is
not essential for the asylum seeker de facto to have fled from their home
country – an alien can become a refugee while he or she is in another country
due to changes in their home country, such as the outbreak of war, revolutions
etc. However, an asylum seeker can only be classed as a refugee through their
own actions, for example, by them forming opinions for political movements
that are forbidden in their home country while they are in another state. If this
is the case, the alien becomes a refugee sur place, ‘in the place’.6 In general,
the fact that the reason for asylum occurred sur place should not be assessed
any differently than if the alien had left their home country for the same
reasons. However, in these cases a special situation arises, as the alien may be
suspected of taking actions that have resulted in the risk of persecution only to
increase their chances of being granted asylum. When assessing one of these
cases, the Government has stated that when an action has been taken only to
increase the possibility of being granted a residence permit, the action itself
should not be given decisive significance when deciding on the asylum seeker’s
right to a residence permit.


6
    Compare Wikrén Sandesjö 2006 p. 126

                                                                                40
The legal situation is not completely clear in this respect, but the main rule
should be that decision should be guided by the objective risk of a certain kind
of persecution.7

6.3.2 Impediments to enforcement
When a decision to refuse entry or expel an alien has been taken, there may
be impediments to the enforcement of this in accordance with Chapter 12
Sections 1-3.

Chapter 12 Section 1 sets out that the refusal of entry and expulsion of an
alien may never be enforced to a country where there is fair reason to assume
that the alien would be in danger of suffering the death penalty, or being
subjected to corporal punishment, torture or other inhuman or degrading
treatment or punishment.

Section 2 of the same chapter also states that the refusal of entry and
expulsion of an alien may not be enforced to a country if the alien risks being
subjected to persecution in that country.

Impediments to enforcement must be judged in accordance with Chapter 12
Sections 18–19 of the Aliens Act. According to Section 18, the Board may
grant a residence permit if in a case concerning the enforcement of a refusal-
of-entry or expulsion order that has been made final, new circumstances come
to light that mean that there is an impediment to enforcement under Sections
1, 2 or 3. If the impediment is of a lasting nature, a permanent residence
permit must be issued, while if there is only a temporary impediment to
enforcement, a temporary residence permit may be granted.

According to Section 12 Chapter 19, the Swedish Migration Board, if an alien
invokes new circumstances that could previously not have been examined, and
if a residence permit cannot be granted under section 18, shall re-examine the
case with relation to the impact of the new circumstances on the decision to
grant a residence permit. If a new examination is to be granted in accordance
with this legislation, there must be completely new circumstances as set out in
Section 18. The burden of proof is not as high as for the examination as set
out in Section 18, as here it is sufficient if the new circumstances can be
assumed to constitute an impediment to enforcement.

The conditions set out in Section 12 Chapter 19 are therefore pure, procedural
regulation that stipulates when a new circumstance can be examined, despite
a previous refusal of an application for a residence permit.

Subsequently, the alien must have a valid excuse for not invoking them earlier
on. The requirement of a valid excuse is a necessary consequence of the fact
that it is the responsibility of the applicant to invoke these reasons in the
asylum process – in accordance with the main principles set out in Swedish
procedural and administrative procedural law. The Swedish Migration Court of
Appeal stated the following in a judgement that relates to this:

           An asylum seeker can therefore only in exceptionally cases be
           considered to have a valid excuse for not invoking all relevant
           circumstances for the examination before this kind of final legal decision
           is made. When a case has reached the stage of enforcement, it will
           therefore only be possible to examine circumstances that could not have
           been invoked earlier on. (MIG 2007:13)




7
    A.a.s. 127

                                                                                   41
However, a much too restrictive interpretation of this requirement would be
assumed to have unreasonable consequences in asylum cases, as the new
circumstances that would be invoked are those that are particularly difficult to
talk about. In the preparatory work for this current regulation, the Government
stated that:

           A valid excuse in this case could be that the alien was exposed to
           traumatic experiences in their home country that would have been
           difficult to talk about at an early stage. (Government Bill 2004/06:170 p.
           227)

Since it has been clarified that sexual orientation shall constitute membership
of a particular social group and shall therefore constitute relevant grounds for
persecution that entitle a person to asylum, the issue of whether it is a valid
excuse to invoke sexual orientation late in the process on repeated occasions is
brought to a head. Many asylum seekers come from cultures where
homosexual and bisexual orientations are taboo and punishable, sometimes by
death. The Director of Legal Affairs at the Swedish Migration Board has
therefore recently (19/10-09) issued an official legal statement, which clarifies
the following:

           When assessing a valid excuse, a person that has hidden and concealed
           their sexual orientation throughout their lives, would generally have a
           valid excuse for not invoking this earlier in the process.8

This official statement clarifies that the Swedish Migration Board must
generally accept sexual orientation as grounds for persecution being invoked
only late on in the process, if sexual orientation is something that the asylum
seeker has hidden throughout their lives. This latter requirement would
therefore be almost an issue of proof.

6.4         International adaptation and future development of asylum law
6.4.1 Asylum Qualification Directive
In 2004 the European Union Council adopted a directive detailing the minimum
norms for when third country nationals or stateless people shall be considered
to be refugees or otherwise in need of international protection, and also
detailing the legal position of these people and the extent of the protection
that is granted to them.

The main objective of the Asylum Qualification Directive is to guarantee that
member states apply joint criteria for establishing which non-EU citizens need
international protection and for guaranteeing a minimum level of rights
available for these people in all member states. A more long-term objective is
to limit travel by asylum seekers between member states if this takes place
only because of differences in asylum law, something that an approximation of
rules for refugee status and the status of people in need of protection should
help to limit.

This directive starts by defining inter alia that the joint concept of international
protection in the sense of this directive is a refugee status and a status of a
person otherwise in need of protection. The definition of refugee in this
directive is based in principle on the definition in the Geneva Convention. All
EU countries have ratified this convention, which means that the definition of a
refugee should be similar in most countries. People otherwise in need of
protection refer to those who if they were expelled to their home countries
would be at a real risk of serious injury, in the form of, for example, capital
punishment or torture.

8
    http://www.migrationsverket.se/include/lifos/dokument/www/091019101.pdf p. 1

                                                                                   42
     The directive also looks at the circumstances required to be considered to be a
     refugee or a person otherwise in need of protection. The directive sets out
     several factors that the states must take into consideration when assessing the
     reasons for persecution. In terms of membership of a particular social group, it
     is stressed that sexual orientation can constitute a common characteristic that
     could prove membership of such a group.

     In addition, it is also stated that when assessing whether an applicant has a
     well-founded fear of persecution, it is irrelevant whether the applicant actually
     has the characteristics that are the reason for persecution, if such
     characteristics are attributed to the applicant by the body that carries out this
     persecution.

     The second section of the directive regulates the rights and benefits that are
     associated with the status that is granted. These conditions deal with inter alia
     the right to a residence permit and travel documents.

     Swedish law has been adapted to the Asylum Qualification Directive since
     2010. Swedish law is judged to generally be in conformance with the Asylum
     Qualification Directive. The main change was therefore to adapt the Aliens Act
     with regard to the regulation of refugee status in the Asylum Qualification
     Directive. The two categories of those in need of protection were also included.



7.   APPENDIX 2 DUTCH AND GERMAN
     LEGISLATION IN THIS AREA
     7.1          The Netherlands
     7.1.1 Relevant international obligations
     The EC Qualification Directive (2004/83/EC) is a legally binding document at
     European level. This document sets out the right to asylum as a result of
     sexual orientation or gender identity by explicitly stating that sexual
     orientation and gender identity constitute grounds for membership of social
     groups. In the 1951 Refugee Convention, which was ratified by the
     Netherlands, membership of a social group constituted a legitimate reason to
     be granted asylum. In Dutch legal practice, asylum seekers have been granted
     asylum with reference to Article 1(A)2 in the 1951 Refugee Convention on
     grounds of persecution of a social group since 1981.9 1979 was the first time
     that the State Secretary decided to grant asylum to a homosexual asylum
     seeker, but this was due to humanitarian reasons. This judgement was
     followed by a parliamentary resolution that recognised persecution on the
     grounds of sexual orientation as grounds for asylum. 10 Asylum seekers can be
     granted asylum in accordance with Article 3 of the European Convention and
     for humanitarian reasons in accordance with Dutch law.

     7.1.2 Dutch legislation
     Processing asylum applications in the Netherlands is based on the Aliens Act
     2000 (vreemdelingnwet 2000) that came into force on 1 April 2001. The Aliens
     Resolution Circulation 2000 (Vreemdelingencirculaire 2000) sets out the
     administration of the applications, established in the Aliens Resolution 2000
     (vreemdelingnwet 2000).




     9
          Judgement from 13 August 1981 Afelding. Rechtspraak (Dutch Judiciary and the Supreme Court of the Netherlands),
     no. A-2,1113 Rechtspraak Vluchtelingenrecht no. 5 1981. Reference: ECRE (1997): ELENA Research Paper on Sexual
     Orientation as a Ground for Recognition of Refugee Status, http://www.ecre.org/files/orient.pdf
     10
          Ibid.

                                                                                                                      43
The Aliens Resolution Circulation includes a chapter on asylum, which contains
a section that focuses specifically on homosexual and transsexual asylum
seekers.11 This document replaced the working instructions that IND previously
used.12 New working instructions have been integrated into the Aliens
Resolution Circulation as an addendum (WBV – Wilzigingsbesluit
Veermdelingencirculaire 2000).

For LGBT asylum seekers from Afghanistan, Colombia, Eritrea, Iraq, Nepal,
Nigeria and Turkey, there are country-specific addenda that recognise LBGT
people from these countries as being particularly vulnerable groups.13 As a
result it is less likely that LGBT asylum seekers from these countries will be
expelled. Discrimination in itself cannot be considered to be a legitimate reason
to be granted asylum. If LGBT asylum seekers are persecuted by non-state
actors, they must be able to prove that they have asked for help from the
authorities in their country of origin.14

Foreign transpeople can be granted a residence permit for a limited period of
time if they need to undergo gender reassignment surgery, in accordance with
Section 14 of the Aliens Act. These cases are not covered by the right to
asylum.

7.2         Germany
7.2.1 Relevant international obligations
As with the Netherlands, Germany ratified the 1951 Convention and the 1967
Protocol relating to the Status of Refugees. The possibility of being granted
asylum in accordance with Article 1(A)2 in the 1951 Convention was
introduced into national legislation in accordance with Article 60(1) AufenthG.

If a decision to grant or not to grant asylum is based on the Geneva
Convention Article 60(1) 5 AufenthG, the EC Qualification Directive
(2004/83/EC) must be used to complement this.

7.2.2 German legislation
In Germany, asylum can be granted for two different legal reasons: firstly,
asylum can be granted to political refugees, in accordance with the German
Constitution Article 16(1). The right to asylum as a result of political
persecution has therefore gained constitutional status and subsequently has
major significance in German legislation.15 Secondly, asylum applications can
be handled pursuant to Article 60(1) AufenthG (Residence ACT). In this case, it
is not political asylum that is granted, but protection against expulsion (also




11
     Vreemdelingencirculaire 2000, del C2/2.10.2,
http://wetten.overheid.nl/zoeken_op/regeling_type_wetten+AMVB+ministeries+circulaires/titel_bevat_vreemdelingen
circulaire% 2B2000/datum_17-11-2009/uitklappen_60463/pagina_1 # 60.463
12
     IND (Immigratie-en Naturalisatiedienst) is responsible for processing all asylum applications. Asylum seekers can
claim asylum at one of the three IND registration centres. The asylum application must be handled within 48 hours,
which corresponds to five working days. The application will only be examined if IND believes that the asylum
application is legitimate. A decision must be made within six months after the asylum application has been submitted.
13
     Vreemdelingencirculaire 2000, C24
14
     This refers back to working instructions number 219 and their addendum by motie-Dittrich, through which asylum
seekers cannot be expected to keep their sexual orientation secret in their country of origin. The relevant paragraph
has been replaced by a paragraph that means that a disadvantaged life for LGBT people in their country of origin does
not constitute legitimate grounds for asylum. See: IND-Werkinstructie no. 219,
http://cmr.jur.ru.nl/CMR/TBV/TBV94/00/werkinstructie.219.pdf


15
     An ECRE study from 1997 states that "the German constitutional court has interpreted this as encompassing
persecution on the grounds of race, religion, nationality and social group”. (Judgement from 2 July 1980 Federal
Constitutional Court 54, 341 (359)) "ECRE (1997): ELENA Research Paper on Sexual Orientation as a Ground for
Recognition of Refugee Status, http://www.ecre.org/files/orient.pdf

                                                                                                                         44
called ’small asylum’ – kleines Asyl). This is where reference to persecution of
a social group constitutes grounds for asylum.16

In both cases, housing is guaranteed for a limited period of time (three years)
and a definitive decision will only be made afterwards as to whether a
permanent residence permit will be granted. Both political and ‘GFK refugees’
(German for the Geneva Convention Relating to the Status of Refugees) have
been given far-reaching social rights. If any of the aforementioned legal
conditions apply for an asylum application, the Asylum Procedure Act
(AsylVerfG) will be used to further process the asylum application. This doest
not apply to stateless aliens. The Federal Office for Migration and Refugees
(BAMF) is the administrative body that is responsible for processing asylum
applications. Over the past ten years, around five percent of the asylum
applications based on the constitution have been granted, and approximately
eight percent were recognised as GFK refugees.17

Unless one of the aforementioned circumstances applies, the asylum seeker
can be prevented from expulsion through Article 60(2-5 or 7) if there is a risk
of torture, capital punishment or a danger to the refugee’s life and freedom in
general if they return home; this also applies even if the criteria set out in the
1951 Convention do not apply. In these cases, a residence permit is granted
for a limited period of time with limited social rights. However, this status does
not constitute asylum status in accordance with German regulations. According
to Pro Asyl around two percent of refugees in recent years have been granted
a residence permit on this legal basis.18 The Federal Office for Migration and
Refugees (BAMF) does not collect statistical data that would show how many
LGBT-related asylum cases there have been, but the number is thought to be
low.19

Legal practice refers in general to Article 60 AufenthG, in which LGBT asylum
seekers are prevented from being expelled. According to an ECRE study, an
asylum application for an LGBT person was first processed in 1983.20
Previously, German legal practice tended to distinguish LGBT cases between
”fatal and irrevocable” homosexuality which was understood to be out of the
control of the individual person concerned, and homosexuality as a preference
that disrupted general morality.21 In the latter case, it would not necessarily
have meant that the person would have been granted asylum in accordance


16
     Translation by author: Foreign nationals cannot be expelled if their life or freedom is threatened on the grounds of
ethnicity, religion, nationality or membership of a particular social group due to political convictions.
17
     Pro Asyl (2009): Die Entscheidung, http://www.proasyl.de/de/themen/basics/basiswissen/wer-erhaelt-asyl/
18
     Ibid. 85% of the asylum applications are rejected. In a high number of cases, refugees are still not expelled; instead
they are given the status "tolerated" (Duldung).
19
     BT-Drs.16/6029 (2006): Die Rechtliche Situationen homosexueller Flüchtlinge in Deutschland und die Lage der
Bürger-und Menschenrechte von lesben, Schwulen und Transsexuellen i Afghanistan, und Iran Irak.
20
     Judgement 26 April 1983, no. IV / IE 06244/81 Verwaltungsgericht Wiesbaden. The asylum application at the first
level of jurisdiction was rejected, but was then sent back to the Constitutional Court in Wiesbaden. Asylum was then
granted to an Iranian homosexual asylum seeker who had not previously been persecuted in his country of origin. This
case is interesting as it shows a controversy that still continues and is also observed in legal practice in the
Netherlands. Some courts think that is it acceptable to expect the asylum seeker to live with their sexual orientation in
secret in order to avoid persecution, while others do not find this acceptable (in accordance with the EC Qualification
Directive 2004/83/EC).
21
     1988, decision from 15 March, Bundesverwaltungsgericht (Federal Constitutional Court) no. 9-c-278,86, 79 bVer-
wGE143: The court granted refugee status to an Iranian man due to his "irrevocable homosexuality", which put him at
risk of being sentenced to death if he returned to Iran. The court found that Iranian law would not only punish the
person for disrupting general public order and morality, because also because of his "fatal and irrevocable homosexual
tendencies". The court thought that the personal characteristics of the asylum seeker placed him in conflict with his
country of origin. However, the court did not believe that the asylum seeker belonged to a social group in accordance
with the 1951 Refugee Convention. In general the court does not base its decisions on granting refugee status to
homosexuals on the grounds of membership of a social group, but rather on the grounds of individual behaviour or
characteristics that are in conflict with their country of origin.

                                                                                                                        45
with legal practice, even though this would have gone against the EC
Qualification Directive (2004/83/EC).22 Now they view sexual identity as a
constituent part of a person’s personality and that it can therefore be
considered to be a natural or inalterable trait.

If a person ’comes out’ after having left their country of origin and therefore
applies for asylum on the grounds of changed circumstances (fear of
persecution in their home country due to the person having come out as being
homosexual), these changed circumstances are not seen as being relevant for
granting asylum in accordance with Article 28 AufenthG. According to legal
practice, the fear that an asylum seeker has for their life and freedom cannot
prevent expulsion from taking place. Since the introduction of the Immigration
Act 2005, persecution of non-state actors is also accepted as legitimate
grounds for apply for asylum. There is no specific procedures for transpeople in
German legal practice.




22
     Also see: lesben-und Schwulenverband in Deutschland (2009): Asylrecht für lesben und Schwule,
http://www.lsvd.de/860.0.html

                                                                                                     46
8.   APPENDIX 3 LIST OF DOCUMENTS
     Sweden
     - Aliens Act
     - Regeringens proposition 2005/06:6 Flyktingskap och förföljelse på grund
       av kön eller sexuell läggning
     - Socialförsäkringsutskottets betänkande 2005/06:SfU4 Förföljelse på grund
       av kön eller sexuell läggning
     - (Prop. 2009/10:31 Genomförande av skyddsgrundsdirektivet och
       asylprocedurdirektivet)
     - (Prop. 2004/05:170 Ny instans- och processordning i utlännings- och
       medborgarskapsärenden)
     - 2 Vägledande beslut homosexuella män Iran - ett avslag och ett bifall
     - Utlänningshandboken kön
     - Utlänningshandboken sexuell läggning
     - UNHCR’s guidance on refugee claims relating to sexual orientation and
       gender identity
     - UNHCR’s guidance on refugee claims gender-related persecution
     - Director of Legal Affairs’ official legal statement on refugees from Iraq and
       its enforcement
     - Judgements in relevant cases
     - Utlänningslagen med kommentarer, 8:e upplagan, Gerhard Wikrén och
       Håkan Sandesjö, Norstedts Juridik, Stockholm 2006


     The Netherlands
       -  1951 Convention and 1967 Protocol Relating to the Status of Refugees
       -  Asylum Qualification Directive (2004/83/EC)
       -  European Convention on Human Rights (ECHR)
       -  Vreemdelingenwet 2000)
       -  Vreemdelingenbesluit 2000 och
       -  Vreemdelingencirculaire 2000

     Tyskland
        -  1951 Convention and 1967 Protocol Relating to the Status of Refugees
        -  Asylum Qualification Directive (2004/83/EC)
        -  The German Constitution (AufenthG) 23
        -  AsylVerfG




     23
          Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (act on
     housing, employment and integration of aliens on German territory).

                                                                                                                        47

				
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