by Jeffery Chen, CERES MA candidate
In its 2008 “Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity,” the UNHCR noted that, though a “growing number” of asylum claims is made by persecuted LGBT individuals, there is a paucity of international regulations protecting queer asylum seekers. At the supranational level, EU member states are nominally bound by several common legal documents and European Court of Justice rulings. This body of law constitutes the CEAS, though its application by Member States is far from even; many national courts have legal precedents that either supersede or, as is more commonly the case, fall below EU/international asylum regulations. The lack of judicial harmony regarding LGBT asylum cases is further complicated by the fluid nature of sexual identity itself: Should asylum be granted to applicants from countries in which there is legal persecution, or does informal, but widespread social persecution qualify an individual for asylum status? How valid are EU member states’ list of “safe countries” when it comes to LGBT individuals? As sexuality is an innate identifier, can the EU enforce the ‘discretion clause,’ or have viable mechanisms to determine the authenticity of an LGBT asylum application? By critiquing the current EU legal framework for LGBT refugees and exploring the gap between European and national legal precedent for queer asylum seekers, this paper will seek to identify and address the key policy challenges inhibiting a truly ‘common’ European asylum system for sexuality minorities.
