Protection in Word But Not in Practice: How Resettlement Countries are Failing LGBTI Refugees

by Kara Naseef

Second-year student at the University of Michigan Law School and Associate Editor of RefLaw.org.

In Uzbekistan, “sodomy is a crime and torture is endemic.” Ali Feruz, an openly gay journalist and an Uzbekistani national, is currently detained in Moscow. He fled politically motivated torture only to have a Russian judge order Feruz deported to Uzbekistan despite documented human rights abuses against returned asylum seekers. Feruz received a stay of deportation from the European Court of Human Rights (ECHR) and remains detained in Russia while the court reviews his case; however, this could take over a year, and Russian immigration detention centers maintain inhumane living conditions.

Moscow also hosts gay men fleeing government targeting in Chechnya. Confirmed reports of abductions, detentions, enforced disappearances, torture, and deaths by the Chechen government of at least one hundred gay men drew the attention of the international community in May 2017. Some men were killed directly by the Chechen government, while others were killed by their families. Chechnya is a predominantly Muslim Russian republic, whose government continues to deny any targeting of LGBTI[1] Chechens. As of June 2017, approximately one hundred people applied for assistance from the Russian LGBT Network in Moscow.

LGBTI refugees face particular challenges because of the widespread animosity towards individuals with this immutable characteristic. As of 2016, sodomy and homosexual behavior was still criminalized in thirty-seven percent of United Nations (UN) Member States, including Lebanon and Uzbekistan.[2] Even where homophobic legislation is no longer on the books, the history is still raw for many LGBTI individuals, making safe havens that more difficult to find. A 2016 UN High Commissioner for Refugees (UNHCR) report recognized a trend of “discrimination directed at LGBTI persons continued to hamper their access to employment and essential services, and threated their safety and well-being in countries of asylum, including at reception facilities.”[3] The UN has incorporated this vulnerable group into its guidance; however, many remain in crisis.

This RefNote reviews key UN materials relating to LBGTI refugees. It then describes the way in which Canada has uniquely acted in the spirit of those materials to aid LGBTI refugees living in Moscow. Finally, this note suggests that other resettlement countries should follow Canada’s lead and welcome LGBTI refugees currently suffering around the world.

UN Documents and Guidance – A Timeline

The work of the United Nations High Commissioner for Refugees (UNHCR) is informed by the 1951 Refugee Convention and 1967 Protocol, which define a refugee as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Refugee claims on the basis of sexual orientation are not explicitly included in the refugee definition; however, Canada, along with several other resettlement countries, has provided refugee status on the basis of sexual orientation since the early 1990s. Beginning in 1994, various UN bodies, including UNHCR have issued guidance to secure refugee rights for this group on a semi-regular basis.

In April 1994, the UN Human Rights Committee found that the Tasmanian Criminal Code violated Article 17, Right to Privacy[4] of the International Covenant on Civil and Political Rights because the criminalization of homosexuality in private between consenting adults was both discriminatory and a violation of the right to privacy. This set new international precedent for adjudication of LGBTI issues. However, it was not until 2002 that UNHCR began explicitly recognizing the unique attention LGBTI refugees require due to their vulnerability and the disparity in the way that countries and cultures view this group.

In 2002, UNHCR issued Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees. This guidance encouraged a “gender-sensitive” interpretation of the 1951 Convention to dispel the historical tradition of interpreting the refugee definition through “a framework of male experiences.” The phrasing here is problematic, as it frames refugee claims based on sexual orientation as cases in which “the claimant has refused to adhere to socially or culturally defined roles or expectations of behaviors attributed to his or her sex.” This fundamentally misrepresents sexual orientation as a mutable characteristic, expecting that an applicant could adhere to social expectations, but refuses to do so.

In 2008, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity was issued in response to a growing number of refugee claims by LGBTI individuals in the face of ongoing persecution. Here, the language in regards to LGBTI individuals was improved—the guidance recognized that “sexual orientation is a fundamental part of human identity, as are those five characteristics of human identity that form the basics of the refugee definition: race, religion, nationality, membership of a particular social group and political opinion.” According to the 2008 guidance, being forced to “forsake or conceal” ones sexual orientation and gender identity, if condoned by the State, may amount to persecution. Reasons why someone may remain “in the closet” include threatened physical and sexual violence by one’s family or community. At this point in time, it was “established that LBGT[I] persons are entitled to all human rights on an equal basis with others.”

In 2011, the UN Human Rights Council adopted a Resolution declaring universal recognition that LGBT[I] persons are endowed with the same inalienable rights—and entitled to the same protections—as all human beings. This was the first time that the UN adopted a Resolution focused exclusively on advancing LGBTI rights. The Resolution called for a study to document global discriminatory laws and acts of violence against this group. Nineteen countries, including Russia, voted against the 2011 Resolution.

In 2012, the UNHCR issued Guidelines on International Protection No. 9. This document broadens past guidance. It provides more specific suggestions for eliciting testimony that will help to establish an applicant’s claim. The 2012 guidelines are based in the universal recognition that “proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that.”

To address the issues of non-State perpetrators of violence against LGBTI individuals, the 2012 guidelines explain that “[w]hile ‘mere’ disapproval from family or community will not amount to persecution, it may be an important factor in the overall context of the claim,” especially if State protection from the harm is either not available or not effective. Further,

laws criminalizing same-sex relations are normally a sign that protection of LGB[TI] individuals is not available. Where the country of origin maintains such laws, it would be unreasonable to expect that the applicant first seek State protection against harm based on what is, in the view of the law, a criminal act. In such situations, it should be presumed, in the absence of evidence to the contrary, that the country concerned is unable or unwilling to protect the applicant.

These 2012 guidelines suggest that protection may be available for non-LGBTI-identifying individuals who associate with or advocate on behalf of LGBTI advocacy when that association is “seen as going against prevailing political or religious views and/or practices” of the country of nationality.

There have been relatively few opportunities to incorporate more recent UNHCR guidance on LGBTI claims into claim adjudication, in part due to the unique and sensitive nature of these claims. Nevertheless, Canada looked outside of current precedent and applied the spirit of UNHCR guidance to remove LGBTI refugees from Moscow.

Canada’s Unique Response to LGBTI Chechens

This section describes Canada’s unique response to the ongoing crisis for LGBTI Chechens given that Moscow is not a viable relocation alternative for LGBTI refugees in Russia.

In order to be a refugee, one must be outside her country of nationality or former habitual residence. This proposes a particular challenge for Chechen refugees. Although Chechnya is legally a republic of Russia, Chechnya has long fought for independence and “federal law enforcement officials are . . . constrained in their ability to operate in Chechnya.” Therefore, Chechens in Moscow are not technically outside of their county of nationality even though they have left their somewhat independent region. Given that Chechnya is landlocked within the vast country of Russia, there are few escape options for persecuted groups.

Since homosexual acts are not illegal in Russia, Chechens were considered to have safely relocated within Moscow. However, For LGBTI refugees from Chechnya and from outside of Russia, Moscow ought not to be considered a safe place for at least two primary reasons. First, although homosexuality is no longer criminalized in Russia, homophobia and transphobia persist throughout society and governance. Second, Russian federal officials refuse to get involved when LGBTI individuals report abuse. Moreover, Russia has permitted the Chechen government to target LGBTI Chechens within Russia, encouraging hostile family members in the diaspora to track them.

Furthermore, between 2012 and 2014, the number of immigrants detained in Russia increased from 14,504 to 37,522.[6] Human Rights Watch reported that the Russian efforts to arbitrarily detain thousands of immigrants from several countries, including Uzbekistan, violate Russian obligations under international law. Detained immigrants are denied access to counsel and translators; they are denied the opportunity to communicate with their families. Conditions in detention have been described as inhumane, due to the inadequate meals, poor sanitary conditions, and restricted access to potable water.

In September 2017, recognizing a humanitarian crisis, Canada did not rigidly apply refugee law, but rather recognized that Russia could not be a safe second country for LGBTI Chechens. Instead, Canada considered the spirit of recent guidance and welcomed LGBTI Chechens into the country. The decision to act was based on the unique circumstances occurring in Chechnya and the need for immediate rescue from government targeting and torture.

Canada’s stance can be attributed to the top leaders of government, as Prime Minister Justin Trudeau has attracted international attention for his public support of LGBTI rights. As part of Trudeau’s efforts, he appointed Member of Parliament Randy Boissonnault as a special adviser on LGBT issues. In May 2017, Trudeau and Foreign Affairs Minister Chrystia Freeland publicly condemned the attacks on LGBTI individuals in Chechnya. In July, the Head of the Chechen Republic Ramzan Kadyrov insisted that LGBTI do not exist in Chechnya. He said “if there are [LGBTI here], take them to Canada . . . [t]o purify our blood if there are any here, take them.” Little did he know that efforts were already underway to bring LGBTI Chechens to Canada and other European countries.

The Canadian government provided emergency visas so that Toronto’s Rainbow Railroad could provide direct travel assistance to Canada and other European countries. Rainbow Railroad worked together with the Russian LGBT Network to identify individuals in need of immediate emotional and financial support. For security reasons and diplomatic relations, these efforts were kept secret until September 2017. The Canadian government has released very few details about its involvement in the efforts. A spokesman for the Russian Embassy in Ottawa has threatened investigation into “legal irregularities.”

The Canadian Foreign Affairs Minister took action outside the formal conventions of international law and at the risk of eroding Canadian-Russian relations. Canada determined that these men’s lives were worth the risk to infringing on Russian sovereignty and cultural values. Russia voted against the 2016 UNHRC Resolution. Therefore, Canada could infer that the Russian government was unable or unwilling to protect these individuals. Even if Chechen men were relatively safer in Moscow than in Chechnya, Canada is right to recognize that their persecution continues so long as they remain in a country where they are not free to be who they are.

[1] This note uses LGBTI to represent all individuals of diverse sexual orientation and gender identity, not limited to lesbian, gay, bisexual, transgender, and intersex individuals.

[2] ILGA, State-Sponsored Homophobia 37-39 (May 2017).

[3] UNHCR, Age, Gender and Diversity: Accountability Report 2016, 27.

[4] “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”

[5] It is unclear how Russia’s vote against the Resolution impacts the independent’s expert ability to assist in intervention with Russia.

[6] Updated information on immigration detention in Russia was unavailable at the time of publication.

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