Pettersson, ‘LGB Asylum and Family Reunification in the EU’, 2023

Cecilia Pettersson, ‘LGB Asylum and Family Reunification in the EU’, Åbo Akademi University, 2023

Abstract

This thesis focuses on the effects on the refugee determination process when the characteristic prompting persecution is one that might not be externally detected or possible to hide. The thesis will focus solely on asylum claims based on sexual orientation. It will not encompass the whole SOGI concept including gender identity in the equation. Gender identity is often, although not exclusively, a characteristic that is more commonly expressed in a way visible to others. This puts gender identity outside the scope of this thesis. The thesis is written using dogmatic methodology and retaining a legal focus throughout. I aim to research the topic through the following questions. In what way can sexual orientation be viewed as a basis for asylum? What are the challenges of the current methods used to determine this type of claims? How is credibility determined in asylum claims? To what extent are rainbow families able to access family reunification in the EU?

The thesis will explore the topics of asylum based on sexual orientation, as well as family reunification in a lgb context through a timeline of stages constituting of before, during and after the processing of the asylum claim. Chapter two will examine the refugee concept from three different inter-related perspectives. It will explore the legal background for this thesis through the refugee concept. The refugee concept will be explored from an international angle, a European Union angle, and an International Human Rights law angle. Legal material will be used from all three areas of law. This part of the thesis will embody the before part. Chapter three focuses on the specific challenges relating to the processing of asylum claims based on sexual orientation, focusing especially on the challenges related to a narrative-based approach to evidence assessment and the credibility assessment. This chapter will embody the during part. Chapter four will discuss issues arising after a possible successful asylum claim from the perspective of sexual orientation – related claim where the claimant has family. It will discuss to what extent a refugee in the European Union has access to family reunification, as well as some relevant case law on the matter. This chapter will embody the after part.

Hallmark ECtHR and CJEU cases related to lgb family reunification are discussed. The high level of burden of proof for establishing whether the relationship in question in fact exceeds the threshold for being considered a long-term relationship qualifying for family reunification makes the situation increasingly difficult in a refugee setting. It is concluded that it is reasonable to assume that a refugee applying for family reunification for their rainbow family would face significant hurdles in getting their right to family reunification realised.

Keywords: Refugee Law, Sexual orientation, Credibility, Family Reunification.