According to Swedish and international law a person can apply for asylum on the ground that he or she is belonging to a “particular social group”. In the Swedish Aliens act (Utlänningslagen), the sexuality and sexual identity has been written into the law. This article will focus solely on sexuality and the asylum process in these certain cases.
A person, is considered a refugee, if the person can make it “probably” that they have a sexuality that differs from the norms of society. In general, this means showing that they are homosexual or bisexual but also other sexualities such as queer, pansexual and other definitions fall within this scope. An asylum applicant does not need to mention the name of their sexuality. As it is written according to the interpretations of law, some people do not know these fraises and an application can not be rejected solely on that ground. A refugee can explain their sexuality and still be granted the refugee status without mentioning the word “sexuality”.
In most asylum cases the authorities focus on whether the story is reliable and credible. When this has been determined they place the story in the context of the refugee’s country of origin. Then it is determined whether the asylum seeker is in risk of persecution because of the story they have told. A lot of denials in these cases are based on the reliability, meaning that even if the refugee has subjective fear, there is no objective fear supported by country information.
In the cases for sexuality the focus of the application is credibility. Usually people who explain their sexualities do not need to prove they are in risk of persecution in their country. The single circumstance that the country of origin, according to law, has prohibited or banned other sexualities than heterosexuality, is a reason to be granted asylum. Basically, the entire investigation and the asylum interview focuses on how, when, where, and why there is a fear of persecution. In this regard, the authorities are not allowed to ask about intercourse or other forms of sex, neither are they allowed to consider or demand proof such as photos or videos.
Also, it is important to remember that sexuality and sexual behavior are two different things. While the former is about who a person can feel romantic feelings for the other is about who a person stays in bed with. There are heterosexuals who engage in same-sex activities and in some societies, this is accepted according to local customs. However, if a heterosexual is perceived as homo- or bisexual they can be granted asylum based on sexuality too.
To make a sexuality probable, the investigator will focus on the emotions and experiences a person had during the “coming-out”, or realization process. Basically, lots of questions will be about how a person realized they are romantically interested in people of the same gender, how they dealt with the discovery of the sexuality emotionally, how they have lived in regard to their sexuality and also, why or why not they have expressed their sexuality. Having been persecuted in the past is not a criteria. As always with asylum cases, a detailed and specific explanations is needed when explaining events that has occurred in the past.
If the Migration Agency decides that the refugee’s sexuality is credible they try if the country of origin is willing or able to provide protection from persecution. Some countries such as Iran, Sudan, India, Uganda and others, where engaging in physical activities with people from the same gender (or perceived gender), is illegal by law, this part of the investigation does not need much attention.
However, in many countries the state does not persecute people because of sexuality. The state can however be unable or unwilling to provide protection. An example can be in the case of Russia or Georgia where it is not illegal to have a non-normative sexuality, but it is shunned upon by both the state and the society, and the justice system does not provide protection.
In cases such as these the investigation will first focus on determining the group the asylum seeker belongs to, just like other refugees that claim sexuality as their reason for asylum, and then focus on whether they are in risk of individual persecution in a context of past and prospective persecution.
When having an asylum application based on sexuality it is important that you have a lawyer who respects and understands different sexualities and has profound knowledge of the investigation in these cases. We at H I Law Firm have genuine experience of assisting asylum applicants basing their applications on their sexuality, whether it be homosexuality or bisexuality or non-named sexuality. HI Law Firm works for the refugee and we understand that the asylum application is a matter of basic individual human rights, one of whom is the right to show love to whomever without fear.
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Author: Ali Ghorban