In many states around the world, lesbian, gay, bisexual, transgender and intersex (LGBTI) persons face serious violations of their human rights on account of their sexual orientation, gender identity or sex characteristics. These include killings, violence, the criminalisation of same-sex relations, and severe discrimination. Such violations also occur within the Council of Europe area. In my statement for the International Day Against Homophobia, Transphobia and Biphobia (IDAHOT) 2018, I particularly highlighted the shocking reports of targeted persecution of LGBTI persons by law enforcement officers, including in Chechnya in the Russian Federation and in Azerbaijan. I also commented on the disturbingly widespread problem of homophobia and transphobia, including daily violent incidents, in other European states.
Whilst we must work tirelessly for better protection of the human rights of LGBTI persons, we also need to be mindful and understanding of the fact that sometimes they have no other choice but to flee and seek safety outside their own states. In many Council of Europe member states, however, LGBTI asylum seekers face a number of challenges to seeking such safety, which require urgent attention.
Sexual orientation and gender identity in domestic asylum laws
Firstly, the way that international standards are interpreted and applied in different Council of Europe member states may prevent LGBTI asylum seekers from being granted the protection they need. The 1951 Refugee Convention, to which all Council of Europe member states are parties, sets the main framework for providing international protection. It defines a refugee as a person who is unable or unwilling to return to his or her country of origin because he or she will be persecuted, that is, be subjected to serious human rights violations. Furthermore, to be recognised as a refugee, such persecution must take place on the basis of one of five grounds: race, nationality, religion, political opinion, or membership of a particular social group. The Guidelines on International Protection No. 9 of the United Nations High Commissioner for Refugees (UNHCR) make clear that sexual orientation and gender identity fall under the Convention grounds, especially under the notion of membership of a particular social group. Similarly, the Committee of Ministers of the Council of Europe, in Recommendation CM/Rec(2010)5 noted that member states “should recognise that a well-founded fear of persecution based on sexual orientation or gender identity may be a valid ground for the granting of refugee status and asylum under national law.” The recast European Union (EU) Qualification Directive (2011/95) also requires EU member states to pay specific attention to sexual orientation and gender identity.