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Case Studies

Although SOGI related rights have been increasingly recognised both at an international and domestic level, the legal frameworks of European countries, the European Union, the Council of Europe and throughout the world have been slow in tackling the violation of such rights.

You can find below a table comparing the SOGICA case studies – UK, Germany and Italy – on key issues of SOGI asylum requests. The table also provides data on the European and international framework and will be regularly updated.

Questions UK Germany Italy Europe International
Sexual Orientation recorded and published by Government? The first ‘experimental’ statistics were published in November 2017, showing 3,535 claims based (or partly based) on sexual orientation, representing an estimated 6% of all claims between 1 July 2015 and 31 March 2017 No No No No
Gender Identity recorded and published? No No No No No
General application rates Asylum applications in the UK from main applicants decreased by 17% to 28,891 in the year ending March 2017 745.545 asylum applications in 2016, the highest number of applications since recording began. In 2015, Germany registered 441.899 applications  (thus +63,5 % increase in 2016)
Asylum applications in 2016 were 123.600 (+ 47% in comparison to 2015) In EU: 431 thousand applications in 2013, 627 thousand in 2014 and around 1.3 million in both 2015 and 2016 22.5 million refugees worldwide
Acceptance rates first decision In year ending March 2017, of the 24,293 initial decisions on asylum applications from main applicants, 33% were grants of asylum or an alternative form of protection, compared to 40% in the previous year In 2016, the overall protection rate (initial decisions) was 62,4% – 36, 8 % of applicants received refugee status; 22,1% subsidiary protection and 3,5% a national ban on deportation In 2016 only 5% of asylum applicants were granted refugee status. An additional 14% were given subsidiarity protection and another 21% received humanitarian protection. The total denial rate was 60% In EU: In 2016, three fifths (61 %) [4] of EU-28 first instance asylum decisions resulted in positive outcomes, that is grants of refugee or subsidiary protection status, or an authorisation to stay for humanitarian reasons (see Figure 8). For first instance dec Not available
Appeal decisions Q4 2016 4,077 decisions, 35% allowed, 57% dismissed, 8% withdrawn Jan – Sep 2017: 44% of all appeals were successful (these include appeals to get refugess status granted instead of subsidiary protection)  Not available In EU: The share of positive final decisions based on appeal or review (17 %; see Figure 9) was considerably lower in the EU-28 in 2016 than for first instance decisions. Around 37.7 thousand people in the EU-28 received positive final decisions based on appeal Not available
Refugee v humanitarian protection 1% of initial decisions in Q4 2016 were to grant Humanitarian Protection or Discretionary Leave See figures above for first decision stage See figures above for first and appeal/review decision stage Not available
Official Sexual Orientation guidance? Yes, published in 2016 No No (but the use of the 2012 UNHCR guidelines seems widespread) No, but see relevant elements in CEAS Directives UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
Official Gender Identity guidance? Yes, published in 2011 (new guidance pending 2018) No No (but the use of the 2012 UNHCR guidelines seems widespread) No, but see relevant elements in CEAS Directives UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
Sur place claims? Yes Yes Not a problematic issue (see Supreme Court case law) Article 5 Qualification Directive Article 1A(2) of the 1951 Convention Relating to the Status of Refugees
Criminalisation and enforcement? Home Office guidance states that ‘In the Court of Justice of the European Union ruling, in the cases of Joined Cases C199/12 to C-201/12 (European Court of Justice ruling: EUECJ/2013/ Joined Cases C-199/12 to C-201/12), the court ruled that the criminalisation of homosexual acts does not in itself, constitute an act of persecution. However, a term of imprisonment which is a sanction against homosexual acts and which is actually applied in the country of origin which has adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. The issue for caseworkers in considering whether legal provisions will amount to persecution (for example if there is a real risk of serious harm) is how such provisions are interpreted, whether they are applied in practice and their impact upon the claimant. Where the country of origin information does not establish whether or not, (or the extent to which) the laws are actually enforced, any pervading and generalized climate of homophobia could be indicative evidence that LGB persons are being persecuted.’ Criminalisation per se insufficient basis for recognition – see for instance Adminstrative Court of Munich (M 25 K 13.31348, 19.11.2014, p.7): ‘However, the mere existence of laws criminalizing homosexual acts is not sufficient for the assumption of relevant persecution with regard to § 3 para. 1 AsylVfG. Rather, it is necessary that a prison sentence is actually imposed in order to accept a persecutory act in this sense (see CJEU 7.11.2013 – C-199/12).’  Criminalisation per se insufficient basis for recognition, but sufficient to claim that there is persecution  Criminalisation per se insufficient basis for claiming that there is persecution – CJEU Joined Cases C-199/12, C-200/12 and C-201/12, X, Y and Z v Minister voor Immigratie, Integratie en Asiel, 7 November 2013, ECLI:EU:C:2013:720 According to UNHCR, criminalisation should be generally be sufficient to claim that there is persecution – para. 26 ff of Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
Internal relocation Yes. Home Office guidance states ‘In line with paragraph 339O of the Immigration Rules, if there is a part of the countryof origin to which the claimant can relocate where they would not have a wellfoundedfear of persecution or real risk of suffering serious harm, and where it isreasonable to expect them to relocate, then the application for asylum should berejected.’ Yes No, Italy does not consider internal relocation in general (accordingly, Article 8 of the Qualification Directive was not transposed) Admitted by relevant EU law – Article 8 of the Qualification Directive Admitted by Refugee Convention but generally not recommended by UNHCR in SOGI cases – para. 21 ff of Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
Eligibility Authorities  Home Office/UK Visas and Immigration Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees)  Non professional authority – Presence of a representative of the UNHCR – Active role in collecting information on the country of origin No indications for Member States No indications for contracting States in relevant human rights/refugee treaties
Adversarial/inquisitorial system Adversarial Inquisitorial Mixed system – it may be defined as semi-adversial or semi-inquisitorial because the decision-maker is involved in investigating the facts of the case (see, for instance, the relevant case law)  No indications for Member States No indications for contracting States in relevant human rights/refugee treaties
Credibility/proof It is the duty of applicant to submit all material factors and account should be ‘internally consistent and coherent’ but proof is needed only to ‘reasonable degree of likelihood’. (Home Office Asylum Policy Instruction, 2015) It is the asylum seeker’s duty to cooperate in the asylum procedure. This includes giving a ‘coherent’ and ‘complete’ account of the ‘events falling into his own sphere, in particular his personal experiences’ (BVerwG, Beschluss vom 26.10.1989, 9 B 405.89)  Coherence of the personal account – no specific proof requested / no discretion requirements Delays in disclosing one’s sexuality should not automatically be held against the claimant to harm their credibility (para. 69-71, Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, ECLI:EU:C:2014 Credibility should be assessed through individualized and sensitive questioning, using both open-ended and specific questions that are crafted in a non-judgemental manner –  para. 62 ff of Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
Self-identification of SOGI Caseworkers and interviewers should make sure that: all material facts which are at the core of the claim are established; the interview should sensitively explore what the claimant is claiming as their current sexual identification; questions asked should be open questions that allow claimants to describe their experiences and the development of their orientation (or the orientation imputed to them by their potential persecutor) and how this has affected their experiences both in their own country and in the UK; the interview is not adversarial; any inconsistencies or gaps within the account are fully explored and tested Decision-makers assess credibility of claim, including self-identification – see for instance, Administrative Court of Trier (2 K 730/12.TR, p.11): ‘In the present case, on the basis of the impression made at the hearing, the Chamber of Appeal came to the conclusion that the applicant’s submission that he had been irreversibly homosexual since puberty was credible.’ Not excluded but decision-makers are called to play an active role in acquiring all the necessary information for confirming the claimant’s account (see relevant case law) Asylum claimant’s self-declaration does not preclude the authorities from assessing the claimant’s claims (par. 52, Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014, ECLI:EU:C:2014:2406) Applicants’ self-declared sexuality does not need to be probed by the authorities (par. 63 of Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/12/09)
SOGI-specific reception centres No government provision. The NGO Micro Rainbow International runs the only 2 safe houses for LGBTI asylum seekers and refugees in the UK Several shelters for LGBTI asylum seekers have opened in recent years. The largest one in Berlin  No (although some projects were elaborated by LGBTI associations – see contacts provided by Il Grande Colibri) Not required by EU law (reception directive) Not required by relevant international law
General detention figures/rates At the end of Q4 2016 a total of 2,738 persons were detained, at this point none of these were children  Detention figures seem to be generally low. At the end of 2016, seven of the 16 Federal States had facilities for detention pending deportation existed in seven Federal States- with a capacity of just more than 400 in total. Deportations are carried out quickly Administrative detention allowed, but not for asylum seekers. In 2015, 5,242 people were hosted in Identification and Expulsion Centres, out of which 25% requested asylum N/A N/A
Refugee integration strategy Yes in Wales and Scotland, but not England or across the UK Integration courses are offered  A national Plan was elaborated and efforts are made within the SPRAR system (but not for all refugees and not for SOGI) The EU has no competences in integration, although may give recommendations to Member States No specific obligations from human rights/refugee treaties but the condition of refugee cannot prevent the enjoyment of all human rights, in line with the prohibition of discrimination as imposed by international (see ICPCR or ICESCR) or regional (see the ECHR) human rights treaties
Family reunification for SOGI refugees No specific rules Family reunification currently only for claimants with refugee status; no specific regulations re SOGI refugees No specific rules for SOGI refugees. General rules for refugees apply No specific rules No specific rules

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