- Program in Refugee and Asylum Law
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November 10, 2020
Established principles of refugee law fail to adequately consider the full scope of harm that unenforced persecutory laws impose. An empirical finding that the law has long gone unenforced should not alone be enough to defeat an asylum claim, nor should courts dismiss unenforced laws as a “common social lubricant.” Rather, the court must work through each step of the refugee definition in its analysis of the asylum claim. Starting with genuine risk, courts should ask if there is a “real chance” that the law will be enforced in the foreseeable future. Second, on serious harm, courts should ask where the implicated right is located in international human rights law, what limitations on the right are permissible, and whether the unenforced law exceeds the scope of those limitations. Third, even if the unenforced law does not violate the right per se, courts should inquire if the law’s secondary effects rise to the level of persecution. Those secondary effects include serious psychological harm, whether the law encourages public or private discrimination, and if the law prevents the state from responding to that discrimination. The bulk of this analysis concerns outdated laws criminalizing homosexuality or sodomy, but the same analysis could apply to unenforced laws targeting other groups, such as religious or political minorities.
I. Courts Must Analyze the Probability of Future Enforcement of a Currently Dormant Persecutory Law
A state’s longstanding failure to enforce a persecutory law is probative of the likelihood of future enforcement, but it is not dispositive. Courts must additionally probe for any indicia that enforcement priorities are changing. An example of this analysis is found in Sebastiao v. Canada (Minister of Immigration, Refugees and Citizenship). Sebastiao first came to the U.S. from Angola and then went to Canada, where he filed for asylum. He claimed he faced persecution in Angola on the basis of his religion and homosexuality. The Refugee Appeal Division (RAD) found that there was no record of prosecution under Angola’s law against same-sex conduct, relying on a U.S. State Department Report. Importantly, however, the RAD went further: it found that legislation to repeal the anti-gay law had advanced in parliament, and while it had not yet been enacted, the draft non-persecutory law “was used intermittently by the justice system.” If that were true, and absent any contrary evidence, the court had a basis to conclude that the probability of future discriminatory enforcement was only speculative. However, Sebastiao also raises concerns about the reliability of evidence of non-enforcement. Sebastiao argued that the state was unlikely to disclose discriminatory prosecutions and that the law would dissuade gay people from reporting bias crimes. The Federal Court ruled that it was not an error for the RAD to accept the available evidence, which did not include a record of those effects, but there was strong documentary support for Sebastiao’s concerns. Thus, courts should apply the utmost scrutiny to the reliability and weight of evidence used to show that a facially discriminatory law is not persecutory. Carefully scrutinizing evidence of non-enforcement is part of the asylum state’s duty of shared fact finding, and failing to do so risks violating the core duty of non-refoulement. Indicia that a state is reviving an unenforced law should cut against the presumption that past non-enforcement will continue. Even if a court has evidence that an unenforced persecutory law may be repealed, it should still interrogate the likelihood of repeal and whether the repeal would be a complete remedy. The mere introduction of a repeal law that stands little chance of passage carries little probative weight.
II. Courts Must Ask How an Unenforced Persecutory Law Limits the Exercise of a Protected Right, and if the Limitation is Permissible
Second, asylum courts need to locate the implicated right within international human rights law to ask what limitations upon it are permissible. The scope of limitations turns on which human rights framework the court adopts. If the court merely asks if there is a global consensus recognizing the right in international law, an applicant claiming fear of persecution from an unenforced anti-sodomy law is unlikely to succeed. Using that framework, in Jain v. Secretary of State for the Home Department, an Indian man fearing persecution under a then anti-sodomy law was denied refugee status because the court found that there was no global consensus on LGBT rights. By contrast, in Appeal No. 74665/03, a New Zealand court recognized the refugee status of a gay Iranian, stating that “prohibition by law of consensual homosexual acts in private offends a core human rights obligation.” Still, the court conceded that “[t]here is no easy formulation” because “[i]t cannot be said that criminalization of consensual homosexual acts is on its own sufficient to establish a situation of ‘being persecuted.’” But by granting the applicant’s appeal, Appeal No. 74665/03 suggests that a persecutory law that infringes on the core of a right at least creates a high burden for the government to overcome, and that Jain might have been decided differently under a core/periphery approach. Likewise, under Professor Hathaway’s codified exceptions and de minimis harm approach, the applicants in either of these cases would have a strong chance of prevailing. They could cite Toonen v. Australia for the proposition that anti-sodomy laws infringe upon ICCPR Articles 17 and 2(1), which do not have codified exceptions. The burden would then be on the state to prove that the harm of an unenforced law is de minimis, but the applicant could argue that when the face of the law attacks the right so directly and facilitates other public and private discrimination, its harm cannot be de minimis.
When a court fails to delineate each step in this analysis, it risks trivializing the harm of an unenforced persecutory law without asking what variations in the protection of human rights are tolerable in international law. In Minister voor Immigratie en Asiel v. X (C-199/12) and Y (C-200/12) and Z (C-201/12) (hereinafter “XYZ”), the court’s discussion of the latter was insufficient. XYZ consolidated three cases from applicants seeking asylum in the Netherlands. A national court dismissed Z’s appeal, finding that there was insufficient evidence that homosexuals are routinely persecuted in Senegal, despite a law allowing imprisonment for 1-5 years and a fine for homosexual acts. The European Court of Justice held that under EU Qualification Directive Articles 9(1) and 9(2)(c), the criminalization of homosexuality is not per se persecutory, but a term of imprisonment which is actually applied for that offense is per se disproportionate and persecutory.
The XYZ court’s analysis is incomplete and contradictory. The court stated that “although [the Minister] did not expect foreign nationals to conceal their sexual orientation in their country of origin . . . that did not mean that they must be free to publicly express it in the same way as in the Netherlands.” In saying this, the court offered no analysis of the scope of limitations the country of origin can place on sexual expression as compared to the Netherlands, or why the law in question did not exceed that scope. Likewise, the court stated that a human rights violation must be “sufficiently serious” to make the claimant a refugee, without any discussion of what factors cause the violation to rise to that level. XYZ leaves unresolved the major tension between its holdings that there is no duty to conceal LGBT status and that an anti-sodomy law is not per se persecutory. XYZ stated that LGBT status is “fundamental to a person’s identity,” and that the Directive “does not lay down limits on the attitude that the members of a particular social group may adopt with respect to their identity or to behavior which may or may not fall within the definition of sexual orientation.” But a gay person in a country with an unenforced anti-sodomy law may still reasonably feel the need to conceal their identity to somedegree. Because the court did not follow a discernible human rights approach, XYZ gives no guideposts to analyze what amount of concealment is permissible. On remand, the referring court should consider evidence of LGBT life in Senegal and ask to what extent it is practicable to be an openly LGBT person there, notwithstanding the anti-sodomy law. Insofar as the law limits LGBT expression, the court needs to engage with the difficult question of whether any concealment it encourages is de minims or significant enough to be persecutory.
III. Courts Should Examine the Secondary Effects of Unenforced Persecutory Laws
A. Psychological Harm
Third, courts must consider whether the psychological harm of an unenforced persecutory law is itself persecutory, by causing anxiety that it could someday be enforced—a legal “Sword of Damocles.” Psychological harm can be persecutory within the meaning of the Refugee Convention where it infringes upon the “dignity and the physical and mental integrity of the individual.” As one court stated, “[t]o live, day after day, knowing that government forces might secretly arrest you is itself a form of mental anguish that can constitute persecution.” An applicant can also base a refugee claim on the grounds that if they were to return, another person close to them would endure severe physical harm, which could be relevant to LGBT people with closeted partners. The difficult questions in the context of an unenforced persecutory law are how severe fear of the law would need to be to rise to the level of psychological persecution, and what the minimum probability of future enforcement should be for the fear to be determined objectively reasonable. This inquiry should be objective but contextualized, asking whether a reasonable person in the applicant’s circumstances would face serious psychological harm. In a case involving a twenty-five year old lesbian Iranian, the Swedish Aliens Appeals Board failed to consider psychological harm on facts that strongly called for it. The claimant fled to Sweden after being outed to the family of her former partner, who accused her of making their daughter into a prostitute. Her partner’s death was later announced in a newspaper. The claimant was engaged to a man but when she was outed he threatened to report her. She claimed that she would face corporal punishment if returned, that at least six people would testify against her, and that she had attempted suicide and suffered depression. Despite all this, the Swedish court denied her application, finding that no lesbians had been executed in Iran in recent years, that there is a gay community in Iran, that her two month delay in applying showed she was not fearful, and that there was no record of her suicide attempt. This analysis improperly discredited the severe psychological harm this applicant faced. A person in her circumstance could reasonably believe that the state would enforce the law against her if her estranged family demanded it, or that if they decided to inflict vigilante justice, the state would do nothing to stop them. Even if she would never actually face physical harm, she would still suffer serious psychological harm based on her objectively reasonable fear and her individual susceptibility.
B. Third Party Discrimination
Advocates should also argue that unenforced discriminatory laws prevent the state from protecting asylees from persecutory acts of third parties. In Toonen, the claimant was an LGBT and HIV+ activist in the state of Tasmania, Australia, which had an unenforced anti-sodomy law. He sought a declaration that this law violated Articles 2(1), 17, and 26 of the International Covenant on Civil and Political Rights (ICCPR). He argued that although the law was unenforced for several years, his status as a prominent activist made him uniquely vulnerable and contended that the law facilitated discrimination in employment and encouraged threats of violence against him. Moreover, Toonen claimed that the law caused a “campaign of official and unofficial hatred,” citing the City of Hobart’s denial of the Tasmanian Gay Law Reform Group’s right to put up a stand in a public square, and police intimidation against him. The UN Human Rights Committee agreed with Toonen that his rights under ICCPR Articles 2(1) and 17 were violated, and an effective remedy would be repeal of the anti-sodomy law. Toonen offers a blueprint for how advocates can go beyond the argument that an unenforced persecutory law makes an applicant of the targeted class a refugee per se, which courts have rejected, and argue that such laws have broader social impacts that cumulatively amount to serious harm. For example, if the applicant has been fired or denied work for being gay, the applicant can argue that a law criminalizing homosexuality makes it unreasonable to report this discrimination and precludes state protection, even if there is no record of criminal prosecutions. Likewise, if being gay is illegal, applicants that have been beaten or harassed for being gay by private individuals are unlikely to report that violence, and police are unlikely to act to protect them. This economic discrimination or physical violence, if severe enough, could be independent grounds for refugee status, but the persecutory law can bolster the claim. The fact that the unenforced law has not been repealed is itself probative of some level of enduring social stigma against the targeted group that is sufficiently strong (together with inertia) to defeat a repeal effort.
When a refugee applicant shows that their country of origin has a facially discriminatory law that would prevent their exercise of a human right and subject them to serious harm for doing so, on the basis of their race, religion, nationality, membership in a particular social group, or political opinion, the applicant has made a prima facie case. The burden should be on the state to prove that the law does not support a well-founded fear of persecution because it is not enforced, and the evidence the state uses to advance that argument should be subject to a heightened standard of review. If there is reliable evidence of non-enforcement, the court should still holistically examine the law’s social impacts. If the court concludes that the harm of the unenforced law is slight, it still needs to justify why that harm is not persecutory within a recognized human rights framework. If it is true that “queer cases make bad law,” then in cases like these, which raise difficult questions relevant to the LGBT community, courts should be especially diligent in showing each step of the analysis, and not blind themselves to the social realities the applicant in front of them faces.
 James C. Hathaway & Jason Pobjoy, Queer Cases Make Bad Law, 44 NYU Int’l J. L. & Pol. 315 (2012).
 UN Human Rights Committee, Toonen v. Australia, Comm. No. 488/1992, ¶¶ 2.1-2.3, U.N. Doc. CCPR/C/50/D/488/1992 (1994) at .
 Id. ¶ 1.
 Id. ¶ 2.3
 Id. ¶ 2.4
 Id. ¶ 2.6
 Id. ¶¶ 10-11
 UN Human Rights Committee, General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Oct. 3, 1992) quoted in LRS at 218.
 Pathmakanthan v. Holder, 612 F.3d 618 (7th Cir. 2010), quoted in LRS at 220.
 Cf.., Abay v. Ashcroft, 368 F.3d 634, 642-43 (6th Cir. 2004) (accepting that a mother was a refugee due to her well-founded fear that her daughter would be subject to FGM if they returned to Ethiopia).
Case Comment, Five Case Abstracts: IJRL/0271, 9 Int’l J. Refugee L. 292, 300 (1997).
 Id. at 301.
 Id. at 300.
 Id. at 300-01.
 Id. at 301.
 Jain v. Secretary of State for the Home Department , EWCA (Civ) 3009, (Eng.).
 Refugee Appeal No. 74665 (N.Z. RSAA, July 7, 2004) at ¶103.
 UN Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) at ¶11.
 See Judgment of 7 Nov. 2013, Minister voor Immigratie en Asiel v. X and Y and Z, joined Cases C-199/12 to C-201/12, EU:C:2013:720, ¶2 (E.C.J.).
 Id. ¶31.
 Id. ¶¶ 26, 31.
 Id. ¶ 61.
 Id. ¶ 35.
 Id. ¶ 53.
 Id. ¶70.
 Id. ¶¶ 68, 70.
 Sebastiao v. Canada (Minister of Immigration, Refugees and Citizenship), F.C. 803, para. 3 (Can.).
 Id. ¶ 26
 Id. ¶ 30.
 Id. ¶ 36.
 Id. ¶¶ 37-40.
 See, e.g., Rep. of the Office of the U.N. High Comm’r. for Human Rights, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, at ¶ 25,U.N. Doc. A/HRC/29/23 (May 4, 2015) (“[O]fficial statistics tend to understate the number of incidents [of LGBT hate crimes]”).
 Cf. Sirbu v. Holder, 718 F.3d 655, 657 (7th Cir. 2013) (discussing the claimant’s contention that although his persecuted political party took a narrow majority in the most recent election, his enemies still held important posts)
 MMM v. Minister for Immigration and Multicultural Affairs, (1998) 90 FCR 324, 329 (Austl.),, quoted in James C. Hathaway & Michelle Foster, Law of Refugee Status 130 (Cambridge Univ. Press, 2d ed. 2014) [hereinafter LRS].
Suggested Citation: Samuel Rubinstein, Toward Principles for Refugee Claims Based on Unenforced Persecutory Laws(November 10, 2020), http://www.reflaw.org/toward-principles-for-refugee-claims-based-on-unenforced-persecutory-laws/