Sexual orientation in Refugee Status Determination

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Achieving asylum or refugee status on the basis of sexual orientation is generally linked to a large number of legal and procedural obstacles and such applications are often unsuccessful. Present international guidance on refugee rights for gay people is very sparse. This issue was directly addressed only in November 2008 when the UNHCR published the Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. This Note recognises that lesbian, gay, bisexual and transgender (LGBT) refugees have encountered a specific set of problems in the application of the refugee definition to their claims. LaViolette welcomes the Note as “entirely appropriate and long overdue”, but warns that it should be viewed as a work in progress as it overlooks a number of important issues. These include difficulties connected to evidentiary practices and procedures, such as the credibility of claims and independent country of origin information. As such, LaViolette points out that the Guidance Note is not a full and complete analysis of refugee claims based on sexual orientation, but rather that it provides a basis for further commentary on the many issues facing gay, lesbian, bisexual and transgender refugees. Indeed, subsequent to the publication of the Guidance Note in November 2008, a number of articles in 2009 explored a range of issues connected to refugee claims based on sexual orientation.

This dissertation seeks to build on this work by examining some of the core issues that arise in refugee claims based on sexual orientation, with a focus on lesbian and gay claimants only. It seeks to answer the following questions: How have decision-makers dealt with gay and lesbian refugee claimants? Are decision-makers adequately prepared for the complexities of sexuality-based refugee claims? How have the different elements of the Convention definition been interpreted so as to include or exclude gay refugees? What particular obstacles and difficulties do gay and lesbian refugees face in their claims?