Fri Jun 23

LGBTQ+ people are facing increasing persecution globally, but refugee status is still extremely hard to get

Written by Paula Gerber, Professor of Human Rights Law, Monash University

The newly passed Anti-Homosexuality Act ^[1] in Uganda has made a country that was already dangerous for LGBTQ+ people truly treacherous.

The new law includes the death penalty for the so-called offence of “aggravated homosexuality ^[2]”, defined as same-sex relations involving someone who is HIV positive or under the age of 18.

Many countries around the world are moving towards decriminalising same-sex relations (most recently Barbados ^[3], Singapore ^[4] and the Cook Islands ^[5]). Others, however, are seeking to impose harsher laws.

For example, in Tanzania ^[6], the leader of the women’s wing of the government has called for the castration of men convicted of same-sex related offences. Ghana ^[7], meanwhile, appears to have watered down a draconian anti-gay bill, but only after US Vice President Kamala Harris expressed concerns about it ahead of her visit.

This increasing hostility towards LGBTQ+ people in some African nations is causing many to flee ^[8]. But gay and gender-diverse people have historically faced enormous obstacles finding refuge abroad. Today, they remain among the most vulnerable and marginalised ^[9] of all asylum seekers.

LGTBQ+ Ugandans have few options

For LGBTQ+ Ugandans, finding a safe haven is not easy when four of the five countries that border Uganda also criminalise same-sex sexual conduct (South Sudan, Kenya, Tanzania and the Democratic Republic of the Congo).

Kenya is the most common destination for asylum seekers fleeing Uganda. However, there’s been a backlash ^[11] against LGBTQ+ people in that country after the Supreme Court recently ruled that discrimination on the grounds of sexual orientation violated the constitution.

LGBTQ+ Ugandans in one Kenyan refugee camp reported facing daily hostilities, saying ^[12] the situation there is “as terrible as you can imagine”.

There are now increasing calls ^[13] in western countries to open their doors to LGBTQ+ refugees from Uganda, but even in countries with progressive gay rights laws, the process is not so simple.

In Australia, for example, just 1,100 asylum seekers were granted a protection visa because of their sexual orientation from 2018-23. This is barely a drop in the ocean of the reported need. The LGBTQ+ advocacy group Rainbow Railroad ^[14] says it receives an average of 10,000 requests for assistance a year from LGBTQ+ people fleeing persecution.

What international refugee treaties say

The 1951 Refugee Convention ^[16] is the leading international treaty governing the rights of people seeking asylum. When it was drafted, however, homosexuality was still a crime in a majority of countries. As a result, LGBTQ+ people are not explicitly protected by the convention, even today.

The convention defines ^[17] a refugee as a person who has a well-founded fear of persecution based on

race
religion
nationality
membership of a particular social group
political opinion.

In the 1990s, many western countries such as the US, Canada and Australia began recognising LGBTQ+ people as a “particular social group” under this treaty, who could seek asylum if they have a reasonable fear of persecution.

Finally, in 2008, the UN High Commissioner for Refugees issued ^[18] guidance on refugee claims relating to sexual orientation and gender identity.

This should have streamlined the process for those seeking asylum. But many refugee claims made by LGBTQ+ people are still unsuccessful. Why is this the case?

Reasons LGBTQ+ refugees are turned down

Let’s look at Australia as a specific example. Even though Australia recognised LGBTQ+ people as a persecuted group under the Refugee Convention, many claims were still being rejected ^[19] until 2003 on the basis that gay people could be safe in their home countries if they were discrete about their sexuality.

Then, in December 2003, the High Court ruled ^[20] it is fundamentally wrong to expect a person to hide their sexual orientation in order to be safe from persecution.

This, however, did not result in the expected increase in successful asylum seeker applications. Many LGBTQ+ people found themselves facing a new obstacle – officials questioning whether they were, in fact, members of the LGBTQ+ community.

For example, in 2020, the Federal Court considered ^[21] a decision of the Refugee Review Tribunal rejecting the asylum applications of two Pakistani men who feared persecution in their home country because of their relationship.

The tribunal said ^[22] it did not believe the men were gay or in a relationship. It questioned the men’s credibility for various reasons. These included the fact the men visited gay venues in Melbourne when they said they wanted to keep their relationship a secret and because of how they responded to questions about their first sexual encounter.

On appeal, the Federal Court found the tribunal’s conclusions about the men’s credibility to be flawed and irrational. The court sent the case back to the tribunal to be heard again.

It is difficult to understand how such assessments are still being made when there are comprehensive resources ^[23] available to assist government decision-makers to avoid such mistakes.

The high rate of rejection of LGBTQ+ asylum claims is not unique to Australia. A recent study ^[24] found that across Europe, one in three claims by LGBTQ+ asylum seekers were denied because officials did not believe the claimants’ assertions about their sexual orientation.

And four in ten were turned down because officials didn’t believe they were at risk of persecution in their home countries.

Is there a path forward?

Many western countries have opened their arms to refugees fleeing war in Iraq, Syria, Afghanistan and most recently, Ukraine. But armed conflict is not the only reason people need to flee their countries. Uganda is waging war against its LGBTQ+ citizens, and they need to urgently escape.

It is up to countries that respect the rights of LGBTQ+ people to offer them a safe haven. Canada ^[26] provides a useful illustration of how this can be done. Prime Minister Justin Trudeau announced this month his government is partnering with Rainbow Railroad to “help LGBTQI+ people start a new, safe chapter here in Canada.”

For LGBTQ+ people fleeing Uganda, one can hope this is not the only door open to them.