Dutch LGBT Asylum Policy (english)

The first time persecution for reasons of sexual orientation was recognised in the Netherlands was as early as 1981. In that year the High Administrative Court ruled that a gay man from Poland belonged to a particular social group. Nowadays this principle has become EU law, as it is included in the "EU Qualification Directive". However, several specific problems remain, comparable to the problems LGBTs meet in most countries receiving asylum seekers. I will give two examples of the problems I found in Dutch case law and in decisions of the Dutch Immigration Agency (IND).

1. I thought that in the Netherlands one's sexual orientation is usually not questioned, but I am afraid I was mistaken. Last year there was a pretty weird example of the contrary. When the IND asked a young man from Pakistan how he found out he was gay, he said he simply liked having sex with boys. But the adjudicator couldn’t imagine the idea of being gay in Pakistan without having any internal struggle, or going through a painful coming-out process. Because "he has never lived out his homosexuality in any other way than having sexual contact" and he did not present enough homosexual identity, the IND did not believe he was gay and rejected his asylum claim.

2. In Dutch decisions there is a tendency to label persecution by non-state actors as discrimination. The test for discrimination is whether someone’s life is unbearable, and in applying this test specific focus is placed on the access to work, health care and housing. This can result in negative decisions by the IND for people who were raped or suffered other human rights violations, as long as they did not loose their job or their house and still have access to health care. Fortunately, such an application of the test will in most cases not be accepted in court and therefore there is a good chance for a final positive outcome.

"Hidden Preferences"

In recent years, there also have been improvements in Dutch policy towards LGBT asylum seekers:

1. For a few years, the general rule is that lesbians, gays, bisexuals and transgenders from Iran are granted asylum (with some exceptions: "Dublin" cases and cases with criminal aspects). This is very important for LGBTs from Iran, but in my opinion LGBTs from all countries that criminalise homosexuality should be granted asylum, except when the Country of Origin Information demonstrates that the criminal provision is never enforced (when the law is a dead letter).

Homosexuals from Iraq and Afghanistan are so-called "groups at risk". Limited indications are enough to show that they run a risk of persecution. The problem is that the criteria for these "limited indications" are unclear and therefore it is hard to rely on this policy.

2. In the Netherlands we used to find negative decisions with reasonings like: You told us yourself that in Afghanistan nobody knows about your sexual orientation, so as long as you remain discrete, you can go back without any problems.
As a result of questions by a member of parliament in 2007 this discretion idea was abandoned and a new phrase was added in the Aliens Circular: "People with a homosexual preference are not expected to hide this preference upon return." [1] In her answer to these parliamentary questions the Minister also remarked: "An internal flight alternative can only be imposed if this does not mean that the asylum seeker has to hide his sexual inclination in the other part of the country." This means that LGBTs are not sent back into the closet anymore.

3. In general, people fleeing persecution by non-state actors will only qualify for asylum, if the authorities in their country of origin are unable or unwilling to protect them. The asylum seeker carries the burden of proof in this respect and in most cases she or he has to seek police protection in order to demonstrate that this protection is not available. But in countries with criminal provisions against homosexuals it doesn’t make sense to send LGBTs to the police and of course it can be dangerous as well.
We managed to convince the Ministry of this point of view and last year an exception was made to the general rule. The Aliens Circular now states: "In case homosexuality or homosexual acts are punishable in the country of origin, calling upon the protection of the authorities is not demanded." And although this actually seems logical, in asylum law it is a pretty important victory.

In the meantime in countries which removed homosexuality and homosexual acts from the Criminal Code, but which nevertheless remain homophobic, LGBTs still have to ask protection from the police. In my opinion the burden of proof in these cases should be on the receiving state. The state should first demonstrate that the authorities of the country of origin are in general able and willing to offer protection to LGBT people, before they can require the asylum seeker to turn to the police for protection. Right now, while the level of information is improving slowly, most Dutch (and other) Country Reports hardly say anything about the possibility of protection for LGBTs.

European research

After the last improvement in Dutch LGBT asylum policy, I wondered how other European countries deal with these issues. Together with VU University Amsterdam COC Netherlands [2] recently started a research project into the policies and practices concerning LGBTI asylum seekers in the EU Member States: "Fleeing Homophobia, Seeking Safety in Europe".

This project aims at finding best practices and make policy recommendations accordingly. A report will be drafted, based on national reports made by experts in the various EU member states on the policy, practice and jurisprudence on LGBTI asylum in their country. The project is funded by the European Refugee Fund and co-funded by the Dutch Ministry of Justice. Our foreign partners are the Hungarian Helsinki Committee, the European Council on Refugees and Exiles and the Italian organisation Lawyers for LGBT rights, "Rete Lenford". ILGA-Europe and UNHCR also cooperate in this project. We hope that this research project will lead to an improvement of the situation of LGBTI asylum seekers in the European Union.


Footnote:

[1] Vreemdelingencirculaire (Aliens Circular) C2/2.10.2

[2] COC Netherlands: C.O.C. means "Cultuur en Ontspannings-Centrum", or Centre for Culture and Leisure, a reminder of the pseudonym the organisation initially adopted after its foundation in 1946. COC is the oldest Lesbian, Gay, Bisexual and Transgender organisation in the world.