Abstract
This chapter expands on a postcolonial conception of queerness and a paradoxical conception of legal inclusion to confront the ways in which LGBTIQ people who seek asylum are policed within state borders at the same moment they claim protection within those borders. The chapter offers a careful cartography of refugee legal recognition to render the geopolitical arrangement of “safety” (refugees finding protection within the UK) and “danger” (refugees experiencing persecution outside the UK). Those who seek asylum on the basis of sexual orientation, for example, have to demonstrate the authenticity of their sexuality and persecution by reproducing ethnocentric, colonial stereotypes about sexual shame, cultural consumption and (western) sexual freedom. This legal demand places a specific burden on the person seeking asylum within the zone of legal recognition: they must produce a coherent, linear and fixed account of their (homo)sexuality to be treated as credible. Yet, in doing so, the refugee adjudication system casts LGBT people who offer accounts of their fluid sexualities as “queer” and positions them outside the zone of legal relevance and recognition (which can lead to their removal). This articulation of the problematic nature of legal recognition invites us, as legal activists and academics, to think about what is at stake when we reify a border policing regime that enables violence against non-citizens while protecting a few people who have the capacity to leave their country and request protection. While acknowledging the importance of turning towards law to provide safety for those who flee persecution, the chapter shows what might be gained by turning away from law—looking outside it—in order to better support LGBTIQ people who are denied safety and visibility.
A version of this chapter originally appeared in the International Journal on Minority and Group Rights 22 (2015) pp. 101–127, published by Brill Nijhoff.
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Notes
- 1.
Dean Spade, “Under the Cover of Gay Rights”, 37 New York University Review of Law and Social Change (2013) 97.
- 2.
This refers to the guiding principle in UK asylum law jurisprudence, overturned by HT & HJ, that would require the deportation of applicants claiming persecution on the basis of sexuality if it was shown that they could be discreet about their sexuality upon return, so as to avoid persecution. See HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31.
- 3.
See e.g., Jenni Millbank, “‘The Ring of Truth’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations”, International Journal of Refugee Law 21, no 1 (2009): 1–33.
- 4.
Joined Cases C-199/12, C-200/12 and C-201/12 (X, Y and Z) v. Minister voor Immigratie en Asiel [2014] 2 CMLR 16 (ruling that the existence of criminal laws “which specifically target homosexuals supports the finding that those persons must be regarded as forming a particular social group”, that criminal laws per se do no constitute persecution, and that applicants cannot be expected to be discreet about their sexuality in their respective countries of origin). For a detailed analysis of the judgment and its implications, see X, Y and Z: A Glass Half Full for “Rainbow Refugees?” June 3, 2014, International Commission of Jurists, Briefing.
- 5.
Joined Cases C-148/13, C149/13 and C-150/13 (A, B and C) [2015] 2 CMLR 5.
- 6.
M.E. v. Sweden (ECtHR, 26 June 2014). In this judgment, the Court accepted that the Libyan asylum applicant was in a relationship with N (a transsexual woman), but did not accept that he would face a risk of persecution if returned to Libya to make his family reunification application (required by Swedish law) because the level of violence was not seen as credible and he had presented N as a woman to his family over skype, which ostensibly indicated that he was choosing to live discreetly. Setting the credibility issue aside, this judgment relies to a large extent on the notion that LGBTIQ people should be required to be discreet in certain situations, without questioning whether the discretion is for fear of persecution. Cf. HT and HJ case, supra note 2.
- 7.
LC (Albania) v. Secretary of State for the Home Department and the United Nations High Commissioner for Refugees [2017] ECWA Civ 351.
- 8.
UN High Commissioner for Refugees (UNHCR), L.C. (Albania) v. Secretary of State for the Home Department: Case for the Intervener, 22 March 2017, C5/2014/2641, available at https://www.refworld.org/docid/58de68dd4.html [accessed 26 June 2020], The UNHCR, as intervener, poses the rhetorical question “in what circumstances may it be said that the concealment will be entirely unrelated to the objective reality that if their protected identity became known, the individual would be persecuted?” The UK Lesbian and Gay Immigration Group, which supports LGBTI asylum applicants and advocates for policy and legal reform of asylum processes, supports the paradigm of protection that the UNHCR suggests. See UKLGIG Briefing: Applying HJ (Iran) and HT (Cameroon) to asylum claims based on sexual orientation (June 2018) 16. Available online at https://uklgig.org.uk/wp-content/uploads/2019/11/UKLGIG-on-HJ-Iran.pdf [Last accessed 26 June 2020].
- 9.
James Hathaway and Jason Pobjoy, “Queer Cases Make Bad Law”, New York University Journal of International Law and Politics 44, no 2 (2012): 315–389.
- 10.
Ibid.
- 11.
Jack Halberstam, Female Masculinity (Durham: Duke University Press, 1998) 13.
- 12.
Navtej Singh Johar & Others v. Union of India, Supreme Court of India, 6 September 2018.
- 13.
“Trinidad and Tobago Judge Rules Homophobic Laws Unconstitutional”, The Guardian, April 13, 2018, accessed July 29, 2019, https://www.theguardian.com/world/2018/apr/13/trinidad-and-tobago-sexual-offences-act-ruled-unconstitutional.
- 14.
Amy Fallon and Owen Bowcott, “Uganda Politicians Celebrate Passing of Anti-Gay Laws”, The Guardian, February 24, 2014, accessed March 17, 2020, www.theguardian.com/world/2014/feb/24/uganda-president-signs-anti-gay-laws.
- 15.
HT and HJ case, supra note 2.
- 16.
Lesbian, gay, bisexual, trans, intersex and queer.
- 17.
1951 Convention Relating to the Status of Refugees’ (United Nations, 1951); 1967 Protocol Relating to the Status of Refugees (United Nations, 1967).
- 18.
It is important to note here that the abbreviation LGBTIQ is perhaps not as deeply entrenched in the particular approach to and understanding of sexual politics that LGBT is. However, neither term is necessarily applicable to all contexts. They both suffer from some of the same shortcomings as the language of universality with regards to human rights, notably the difficulty in coordinating local meaning with such global vernacular.
- 19.
This discussion is not only limited to academia. For example, the UK Lesbian and Gay Immigration Group published a 2018 report assessing Home Office decision making on LGBTI claims, which identifies the persistent expectation by Home Office agents that LGBT people would have a particular type of coming out experience. See UKLGIG, Still Falling Short: The Standard of Home Office Decision-Making in Asylum Claims Based on Sexual Orientation and Gender Identity, 2018, accessed July 22, 2019, https://uklgig.org.uk/wp-content/uploads/2018/07/Still-Falling-Short.pdf. The report claims that “[i]n many cases this expectation of sophistication is erroneous as it relies on stereotypes of LGBTQI + people, which in addition to being sexual stereotypes are culturally misaligned. Not everyone will have gone through introspective soul-searching and retrospective interpretation of their experiences, so as to be able to offer a narrative identifying their own emotions as central to their identity. or containing milestones which might be recognisable in some Western contexts” (p. 23).
- 20.
An exception to this is the relatively recent case of Russia having implemented harsh laws against sexual minorities, which has increased the number of LGBTIQ refugees fleeing from Russia to other parts of Europe.
- 21.
I am referring here to Grosfoguel’s elaboration of zones of being and non-being in his lecture series on Decoloniality in Berlin as well as a recorded lecture he gave at the Islamic Human Rights Commission in the UK on December 11, 2012 called “Is Islamophobia Racism?” Grosfoguel traces the intellectual history of “racism” in broad terms to mean the exclusion of certain groups from the “zones of being” and relegation into the “zones of non-being” wherein their lives are much more precarious and characterised by violence.
- 22.
For examples of such critiques, see Jeffrey Redding, “Dignity, Legal Pluralism and Same-Sex Marriage”, Brooklyn Law Review 75, no 3 (2010) 791; Dean Spade, “Under the Cover of Gay Rights”, N.Y.U. Review of Law and Social Change 37, no 1 (2013): 79.
- 23.
Nadine El-Enany, “On Pragmatism and Legal Idolatry: ‘Fortress Europe’ and the Desertion of the Refugee”, International Journal of Minority and Group Rights 22, no 1 (2015): 7–38.
- 24.
See Guglielmo Verdirame, “A Friendly Act of Socio-Cultural Contestation: Asylum and the Big Cultural Divide”, International Law and Politics 44 (2012): 559–572. It is important to note that refugee claims advance human rights discourse in prominent ways, though filtered through the propositions regarding torture and contextual assumptions regarding persecution as per the Geneva Convention rather than the transposition of international norms to national constitutions.
- 25.
HT and HJ case, supra note 2. The decision rejected what had been commonly known as the “discretion test” for lesbian and gay asylum applicants, with the effect that claimants are no longer expected to return to their countries of origin to live discreetly if they would only do so for fear of persecution were they to live as openly gay or lesbian.
- 26.
I am referring mainly to the regime set out by the 1951 UN Convention on the Status of Refugees (the “Geneva Convention”).
- 27.
Etienne Balibar, “Outlines of a Topography of Cruelty: Citizenship and Civility in the Era of Global Violence”, Constellations 8, no 1 (2001): 15–29.
- 28.
Ibid.
- 29.
Ibid., p. 24.
- 30.
Ibid.
- 31.
Consider the case of a ship of Eritrean and Sudanese refugees capsizing off the coast of the Italian island of Lampedusa in October 2013, in which an estimated 300 people drowned. Such tragedies are considered, by some, to represent structural policy failures which do not assist refugees in their journeys across the treacherous sea. See e.g., Hans Jurgen Schlamp, “Europe’s Failure: Bad Policies Caused the Lampedusa Tragedy” Der Spiegel Online, October 4, 2013, accessed November 2, 2014, www.spiegel.de/international/europe/lampedusa-tragedy-is-proof-of-failed-european-refugee-policy-a-926081.html; Anna Dolidze, “Lampeduza and Beyond: Recognition, Implementation and Justiciability of Stateless Persons’ Rights Under International Law”, Interdisciplinary Journal of Human Rights Law 6 (2011–2012): 123. For an overview of documented refugee deaths at European borders over the last two decades, see List of 17306 Documented Refugee Deaths through Fortress Europe, 1 November 2012, UNITED for Intercultural Action, accessed November 2, 2014, www.unitedagainstracism.org/pdfs/listofdeaths.pdf.
- 32.
Consider, for example, the death of asylum applicant Jimmy Mubenga during his forced removal from the UK by the privately contracted security service G4S. See Matthew Taylor and Robert Booth, “Jimmy Mubenga Death: G4s Guards Will Not Face Charges”, The Guardian, July 17, 2012, accessed November 2, 2014, www.theguardian.com/uk/2012/jul/17/jimmy-mubenga-guards-no-charges.
- 33.
Between a Rock and a Hard Place: The Dilemma Facing Refused Asylum Seekers, The Refugee Council, December 1, 2012, accessed November 2, 2014, www.refugeecouncil.org.uk/assets/0000/1368/Refugee_Council_Between_a_Rock_and_a_Hard_Place_10.12.12.pdf.
- 34.
Nina Perkowski, “A Normative Assessment of the Aims and Practices of the European Border Management Agency Frontex”, Working Paper Series No. 81 (Refugee Studies Centre, Oxford, 2012). See also Judith Sunderland, “Europe Failing to Tackle Boat Tragedies in Mediterranean”, Human Rights Watch, 12 September 2012, accessed November 2, 2014, www.hrw.org/news/2012/09/12/europe-failing-tackle-boat-tragedies-mediterranean.
- 35.
For example, the European Union agreement with Libya on the interception of refugees at sea has been cited as knowingly placing refugees in peril. See Charles Heller, Lorenzo Pezzani, Itamar Mann, Violeta Moreno-Lax and Eyal Weizman, “Opinion: ‘It’s an Act of Murder’: How Europe Outsources Suffering as Migrants Drown”, New York Times, December 26, 2018, accessed June 1, 2019, https://www.nytimes.com/interactive/2018/12/26/opinion/europe-migrant-crisis-mediterranean-libya.html.
- 36.
Halberstam, supra note 11, p. 13.
- 37.
Balibar, supra note 27, p. 24.
- 38.
Frantz Fanon, The Wretched of the Earth, translated by C. Farrington (London: Penguin Books, 1963).
- 39.
Jasbir Puar, Terrorist Assemblages. Homonationalism in Queer Times (Durham: Duke University Press, 2007) 335. While Puar examines the concept of homonationalism in the context of the “war on terror”, I apply it here to human rights strategies that place certain interests into hierarchies of importance.
- 40.
Ibid., p. 4.
- 41.
Ibid.; Spade, supra note 22.
- 42.
Wendy Brown and Janet Halley (eds.), Left Legalism/Left Critique (Durham: Duke University Press, 2002).
- 43.
Ibid., p. 432.
- 44.
Ibid., pp. 430–431. See also Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color”, Stanford Law Review 43, 6 (1991): 1241–1299.
- 45.
Millbank, supra note 3.
- 46.
See Joseph Landau, “‘Soft Immutability’ and ‘Imputed Gay Identity’: Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law”, Fordham Urban Law Journal 32, 2 (2004).
- 47.
Testing Sexual Orientation: A Scientific and Legal Analysis of Plethysmography in Asylum and Refugee Status Proceedings, February 2011, Organisation for Refuge Asylum And Migration, accessed November 2, 2014, http://www.oraminternational.org/images/stories/PDFs/testing%20sexual%20orientation%20feb%202011%20download.pdf.
- 48.
Videos and photographs are used in certain asylum status determination hearings; See Dan Hodges, “Getting Gay Asylum Seekers to Prove Their Sexuality Is Perverse—But How Do You ‘Codify’ Love?”, The Telegraph, February 27, 2013, blogs.telegraph.co.uk/news/danhodges/100204483/getting-gay-asylum-seekers-to-prove-their-sexuality-is-perverse-but-how-do-you-codify-love/. See also a US account of having to shape sexuality to fit a certain stereotypical expectation, Dan Bilefsky, “For Gays Seeking Asylum in U.S. Encounter a New Hurdle”, New York Times, January 11, 2011, accessed March 17, 2020, www.nytimes.com/2011/01/29/nyregion/29asylum.html?pagewanted=all&_r=0. The use of photographic and video evidence was also addressed in a recent Advisory Opinion of the Court of Justice of the European Union. AG Sharpston, supra note 6.
- 49.
See Still Falling Short, supra note 19.
- 50.
For an analysis of the racialised transformation of gender in the context of colonialism, which speaks to this type of corporeal scrutiny, see Steven Pierce and Anupama Rao, Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham: Duke University Press, 2006) 11–14.
- 51.
See e.g., Lucas Paoli Itaborahy and Jingshu Zhu, “2013 State-Sponsored Homophobia Report” (International Lesbian, Gay, Bisexual, Trans- and Intersex Association, 2013).
- 52.
Balibar, supra note 27, p. 24.
- 53.
Frantz Fanon, Black Skin, White Masks, translated by C. L. Markmann (New York: Grove Press, 1967) 8.
- 54.
David Smith, “Teenage Lesbian Is Latest Victim of ‘Corrective Rape’ in South Africa”, The Guardian, May 9, 2011, accessed March 17, 2020, www.theguardian.com/world/2011/may/09/lesbian-corrective-rape-south-africa. See also E. P. Motswapong, “Surviving Behind the Mask: Lesbians and Gays in Botswana”, in Queering Paradigms, edited by B. Scherer (New York: Peter Lang, 2010) 350.
- 55.
This was reported to ILGA by a UK-based advocate who had witnessed such reliance.
- 56.
See S. Chelvan, “From Sodomy to Safety? The Case for Defining Persecution to Include Unenforced Criminalisation of Same-Sex Conduct” VU University Amsterdam, Fleeing Homophobia Conference, 5–6 September 2011; Laurynas Biekša, “The Refugee Qualification Problems in LGBT Asylum Cases”, Jurisprudence 18, no 4 (2011): 1559. Chelvan points to Italian practice and cites the Fleeing Homophobia report that states “Criminalisation reinforces a general climate of homophobia (presumably accompanied by transphobia), which enables State agents as well as non-State agents to persecute or harm LGBTIQs with impunity. In short, criminalization makes LGBs into outlaws, at risk of persecution or serious harm at any time”. He and the report cite Italy and Austria as having best practice. Italy, for example, sees the laws as persecutory per se because they prevent the realisation of a basic human right. One must go through the process of proving credibility, however, which is where the claims seem to fail. He also notes that art. 9 of the 2004 Qualification Directive provides that persecution under the Geneva Convention must be sufficiently serious by nature or repetition as to constitute a violation of Human Rights as per ECHR or be an accumulation of various measures, and can take the form of “legal, administrative, police and/or judicial measures, which are in themselves discriminatory or which are implemented in a discriminatory manner”, 2004 Qualification Directive, European Council (European Community, 2004). See also Jenni Millbank, “The Right of Lesbians and Gay Men to Live Freely, Openly and on Equal Terms Is Not Bad Law: A Reply to Hathaway and Pobjoy”, International Law and Politics 44 (2012): 496–527. Millbank notes that the UK in particular has been reluctant to view criminal laws as persecutory per se.
- 57.
See ILGA 2012 State-Sponsored Homophobia Report, May 2012, ILGA, L. Itaborahy.
- 58.
Rahul Rao, “On ‘Gay Conditionality’, Imperial Power and Queer Liberation”, Kafila, January 1, 2012.
- 59.
See Patricia Tuitt, “The Territorialization of Violence”, in Critical Beings: Law, Nation, and the Global Subject, edited by Peter Fitzpatrick and Patricia Tuitt (Farnham: Ashgate, 2004) 226.
- 60.
Fanon, Black Skin, White Masks, supra note 52, p. 8.
- 61.
Ibid. He notes here: “the black man is not a man”. On the same page he continues, “The black is a black man; that is, as the result of a series of aberrations of affect, he is rooted at the core of a universe from which he must be extricated. The problem is important. I propose nothing short of the liberation of the man of color from himself. We shall go very slowly, for there are two camps; the white and the black”. Fanon, in Black Skin, White Masks, looks at colonialism, and settler colonialism in particular, to trace the line between the two camps. This line may be what Balibar might describe an “enmity line”. However, Fanon also applies the framework of being and non-being to other forms of slavery, epidermal schema of oppression, etc., as implicit in his term “man of color”.
- 62.
Ibid., p. 14.
- 63.
Fanon, The Wretched of the Earth, supra note 38, pp. 34–35.
- 64.
See Ramon Grosfoguel, “The Epistemic Decolonial Turn”, Cultural Studies 21, nos 2–3 (2007): 220. Grosfoguel refers not only to “classical” colonialism, but also to what he calls “colonial situation” including “the cultural, political, sexual, spiritual, epistemic and economic oppression/exploitation of subordinate racialized/ethnic groups by dominant racialized/ethnic groups with or without the existence of colonial administrations”.
- 65.
Verdirame, supra note 24.
- 66.
See Peter Fitzpatrick, “The Damned Word: Culture and Its (in)Compatibility with Law”, Law, Culture and the Humanities 1, no 1 (2005): 2–13.
- 67.
Madhaver Sunder, “Cultural Dissent”, Stanford Law Review 54 (2001): 495–567.
- 68.
See Satvinder Juss, International Migration and Global Justice (Hampshire: Ashgate, 2007); Balibar, supra note 27.
- 69.
Cf. Ibid., p. 201. Juss critically assesses the narrowness of refugee law by positing that refugee law today constitutes “an attempt by the international community to reconcile two irreconcilables: humanitarian need on the one hand and sovereign state control on the other”. Such critique seeks to address a need greater than the scope permitted by the mechanisms of refugee law. A politics of recognising this mismatch is the difference between Juss’ critique and conventional legitimations of the scope of refugee law and policy.
- 70.
This includes for example persecution, which is a specific type of violence, that must be extreme, involve state action or unwillingness or inability to act, and be proven rigorously. See Matthew E Price, Rethinking Asylum: History, Purpose, and Limits (Cambridge: Cambridge University Press, 2009) 279.
- 71.
One politically contentious and often-used phrase for describing migration policy is the “opening of the floodgates”. This language is meant to emphasise the sheer volume of people crossing the border into Europe, for example, drowning its citizens. This image is completed with another phrase, “swamping”, which is meant to describe cultural depletion through immigration. For examples, see Sajid Qureshi, “Opening the Floodgates?: Eligibility for Asylum in the USA and the UK”, Anglo-American Law Review 17 (1988): 83–107.
- 72.
Rao, supra note 58; G. Ogwaro, “Press Release: Guidelines for Supporting the Ugandan LGBTI Effort to Advocate against the Anti-Homosexuality Bill”, in Civil Society Coalition on Human Rights & Constitutional Law (Refugee Law Project, Makerere University School of Law, 2012). See also Hakan Seckinelgin, “Same-sex Lives Between the Language of International LGBT Rights, International Aid and Anti-Homosexuality”, Global Social Policy 2 (2018).
- 73.
For examples, see Stephen Murray and Will Roscoe, Boy-Wives and Female Husbands: Studies in African Homosexualities (New York: St. Martin’s Press, 1998); Brinda Bose and Subhabrata Bhattacharyya, The Phobic and the Erotic: The Politics of Sexualities in Contemporary India (Calcutta and New York: Seagull Books, 2007); Sylvia Tamale, African Sexualities: A Reader (Oxford: Pambazuka Press, 2011); Brian Whitaker, Unspeakable Love: Gay and Lesbian Life in the Middle East (Berkeley: University of California Press, 2006).
- 74.
This figure is from the human rights organisation, Erasing 76 Crimes, which is an information and campaigning platform to repeal anti-gay laws. See Erasing 76 Crimes website, accessed August 30, 2019, https://76crimes.com/39-commonwealth-nations-still-have-anti-lgbti-laws/.
- 75.
Ibid, p. 67.
- 76.
Ibid.
- 77.
Ibid.
- 78.
Ibid., p. 76.
- 79.
Verdirame, supra note 24.
- 80.
For more on this dilemma, see Wendy Brown, “Suffering the Paradoxes of Rights”, in Brown and Halley, supra note 41. See also Dean Spade, “Their Laws Will Never Make Us Safer: An Introduction”, in Against Equality: Prisons Will Not Protect You, edited by Ryan Conrad (Oakland: AK Press, 2012).
- 81.
This is most clearly evidenced by the 2012 Hostile Environment Policy (subsequently renamed the Compliant Environment Policy), which seeks to make life in the UK administratively difficult for those without proper paperwork, but in effect, it makes it difficult to migrate to the UK in general and fosters the racialized surveillance of certain groups. See e.g., UN General Assembly, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, 41st Session, 24 June–12 July 2019.
- 82.
Beth Perkin and Charlotte England, “Stansted 15: Activists Who Stopped Deportation Charter Flight Convicted Of Terrorism Charge,” Novara Media, December 10, 2018, accessed July 29, 2019, https://novaramedia.com/2018/12/10/stansted-15-activists-who-stopped-deportation-charter-flight-convicted-of-terrorism-charge/.
- 83.
Lesbian and Gays Support the Migrants, accessed February 4, 2019 https://lgsmigrantsbristol.wordpress.com/about-us/. According to the collective’s website, although the name of the organisation, “lesbians and gays”, has not been changed since the 1980s, the group “is inclusive of all sexualities and gender identities.”
- 84.
George Steer, “The UK’s Prosecution of Peaceful Protesters Is Raising Fears About Anti-Terror Laws,” Time Magazine, February 8, 2019, accessed July 29, 2019, https://time.com/5506750/stansted-15-britain-protest-court-immigration/.
- 85.
The activists were, however, spared jail time, being given suspended sentences and community service orders.
- 86.
For a discussion of the prospects of recognising per se persecution on the level of the European Union, see S. Chelvan, supra note 56.
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Bruce-Jones, E. (2021). Death Zones, Comfort Zones: Queering the Refugee Question. In: Raj, S., Dunne, P. (eds) The Queer Outside in Law. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48830-7_3
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