The process of claiming asylum entails sharing information about private, sensitive, and often traumatic experiences. This may be especially true for claims on the basis of sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC). An applicant seeking asylum on the grounds of their SOGIESC must demonstrate that they are at risk of persecution based on their actual or perceived orientation or identity, which is inherently personal. Since it is unlikely that much, if any, external evidence would be available to support a SOGIESC claim, there is an even greater emphasis on the applicant’s testimony.
Numerous laws and standards have been introduced at the national, European, and international levels to protect the rights of people with diverse sexual orientation and/or gender identity. In the context of asylum, one of the most prominent contributions has been the UNHCR’s Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/orGender Identity. Regional obligations and recommendations include the Council of Europe’s 2010commitment to combat SOGI-related discrimination. Decision-makers are tasked with the responsibility of adhering to procedural regulations while weighing asylum applications fairly, with respect to human dignity, self-determination, and the right to privacy. Despite the various standards and guidance that exist on how to approach SOGIESC claims with sensitivity – while ensuring asylum procedures are trustworthy and robust – there is cause for concern when the process risks (re)traumatisation and marginalisation of the very people it is meant to protect.
Reflecting on the successes and challenges of the asylum system is a critical part of the work at Fenix - Humanitarian Legal Aid (Fenix) to promote a fair, equitable, and effective European asylum process. Perspectives on the asylum procedure shared in this report stem from our collective experience as a holistic legal aid organisation working on the island of Lesvos since2018. In addition to providing legal services, our in-house Mental Health and Psychosocial Support(MHPSS) and Protection teams ensure that clients have access to comprehensive, person-centered care as they navigate the asylum system.
From a legal standpoint, this report examines and contributes to the discussion surrounding the prevalence and consequences of procedural violations during asylum interviews and in the assessment of SOGIESC claims in Europe,7 with a focus on process rather than outcome. Insights from our MHPSS team provide a complementary frame of reference, drawing attention to the detrimental impacts that flawed and unlawful procedures have on the wellbeing and mental health of people seeking international protection. Based on these observations and concerns, this report concludes with a number of recommendations aimed at improving procedures for SOGIESC asylum claims.
* At the time of publishing, the EU organ for asylum was EASO. On the 19th of January 2022, EASO was replaced by EUAA, the European Union Agency for Asylum.