Crossing borders between International Refugee Law and International Human Rights Law in the European context: Can human rights enhance protection against persecution based on sexual orientation (and beyond)?
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | 10.1177/0924051919884758 |
| Author | Carmelo Danisi |
| Subject Matter | Articles |
Article
Crossing borders between
International Refugee Law
and International Human
Rights Law in the European
context: Can human rights
enhance protection against
persecution based on sexual
orientation (and beyond)?
Carmelo Danisi
University of Sussex, UK; University of Bologna, Italy
Abstract
In the last decades, international refugee law (‘IRL’) and international human rights law (‘IHRL’)
have increasingly taken into account sexual minorities’ needs. Despite not being one of the grounds
of persecution under the 1951 Geneva Convention on the Status of Refugees, sexual orientation
has been identified as a relevant factor for the recognition of refugee status for more than twenty
years. In parallel, IHRL has evolved to a point where sexual minorities are more fully included
within the scope of rights and freedoms set forth in universal and regional human rights treaties,
especially via the prohibition of discrimination. Yet, strange as it may seem, this simultaneous
evolution has not always led to a fruitful intersection between IRL and IHRL, even in terms of
interpretation despite what the Law of Treaties requires. Drawing from documentary and quali-
tative data and by taking people fleeing homophobia as example, this article looks at the role that
IHRL may play in complementing and in intersection with IRL. It argues that IHRL may, firstly, raise
obligations to facilitate the access of these claimants to asylum determination procedures and,
secondly, inform the notion of persecution used in IRL more comprehensively than it currently
does in practice.
Keywords
asylum, non-admission, persecution, HRC, ECHR, EU, UNHCR, sexual orientation
Corresponding author:
Carmelo Danisi, University of Sussex, Brighton, UK; University of Bologna, Bologna, Italy.
E-mail: c.danisi@sussex.ac.uk
Netherlands Quarterly of Human Rights
2019, Vol. 37(4) 359–378
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1. Introduction
In the last decades, international refugee law (‘IRL’) and international human rights law (‘IHRL’)
have increasingly taken into account sexual minorities’ needs. Despite not being one of the
grounds of persecution under the 1951 Geneva Convention on the Status of Refugees (‘Refugees
Convention’),
1
sexual orientation
2
has been identified as a relevant factor for the recognition of
refugee status, at least, since 1993.
3
In the intervening period, people persecuted for a sexual
minority identity have been able to find protection under IRL due to the evolving interpretation
of the Refugees Convention’s five grounds, in particular that of ‘membership of a particular social
group’ (‘PSG’).
4
In turn, IHRL has evolved to a point where sexual minorities are more fully
included within the scope of rights and freedoms set forth in universal and regional human rights
treaties, in particular via the prohibition of discrimination. This evolution gave rise to a sort of
‘humanisation’ of lesbian, gay, bisexual and transgender (‘LGBT’) people,
5
resulting in recogni-
tion of the need to specifically address their socially disadvantageous position.
Yet, strange as it may seem, this simultaneous development has not always led to a mutual or
fruitful intersection between IRL and IHRL when people fleeing homophobia are involved.
6
This
is particularly evident, as this article shows, when this intersection is tested at the interpretation
level. In fact, despite what the rules on the interpretation of treaties require,
7
IHRL has sometimes
played a limited role in defining key terms of the Refugees Convention. In light of the potentially
beneficial effect for all people claiming asylum, this article explores from two different angles
what role IHRL may play in enhancing the protection provided by IRL to people fleeing homo-
phobia. It argues that IHRL may, firstly, complement IRL in facilitating their access to asylum
determination procedures in those States that are bound by the Refugee Convention and human
rights treaties. Secondly, IHRL may expand the notion of persecution used in IRL when sexual
orientation is the ground of one’s well-founded fear of persecution, at least more comprehensively
than it currently does in practice. In this attempt, this contribution goes beyond previous analyses
because it relies not only on research on the European human rights and asylum legal framework
8
1. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137
(see also the Protocol of 1967 extending the Convention’s scope of application).
2. For the purpose of this article, we refer to sexual orientation as defined by the Yogyakarta Principles
kartaprinciples.org>.
3. Eg Supreme Court of Canada Canada (Attorney General) v Ward (1993) 2 Supreme Court Reports 689; United States
Court of Appeals for the Ninth Circuit Geovanni Hernandez-Montiel v Immigration and Naturalization Service (2000)
225 F.3d 1084; High Court of Australia Appellants S395/2002 and S396/2002 v Minister for Immigration and Multi-
cultural Affairs (2003) HCA 71.
4. This contribution is based on the UNHCR’s definition of PSG: see UNHCR, ‘Guidelines on International Protection:
Membership of a Particular Social Group’ (2002) UN Doc HCR/GIP/02/02, 3.
6. Although this article takes the example of persecution based on sexual orientation, many of the issues raised would be
equally true for other sexual minorities, such as people fleeing transphobia given the similar experiences they have to
face in terms of intense social and legal discrimination. See Laurie Berg and Jenni Millbank ‘Developing a
Jurisprudence of Transgender Particular Social Group’ (2013) UTS: Law Research Paper No. 1.
7. Vienna Convention on the Law of the Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS
331, Article 31, paras 1 and 3 (c).
8. These will be referenced where appropriate. For a specific study on the EU framework on SOGI asylum, see Nuno
Ferreira ‘Reforming the Common European Asylum System: Enough Rainbow for Queer Asylum Seekers?’ (2018) (2)
GenIUS 25.
360 Netherlands Quarterly of Human Rights 37(4)
and on asylum based on sexual orientation and gender identity (‘SOGI’) grounds,
9
but also on
qualitative data collected in the context of the ERC-funded SOGICA project in Italy.
10
This article is structured as follows. Section 2 briefly examines the evolution of IRL and IHRL
in protecting sexual minorities, pointing out the cross-fertilisation between these different branches
of international law while highlighting the potential scope for further intersection. Section 3 builds
a case for a complementary role of IHRL in protecting against persecution based on sexual
orientation, showing how the obligation to implement the Refugees Convention may, in turn, raise
obligations under IHRL. In doing so, a model of jurisdiction based on impact is explored. Section 4
investigates to what extent a more fruitful intersection between these two areas of international law
is possible in terms of interpretation. By taking into account the Vienna Convention on the Law of
Treaties (‘VCLT’), it focuses on the definition of persecution as a remarkable example of the still
uncrossed border between IRL and IHRL. The qualitative data underpinning this study relates to
people seeking protection in Europe, therefore both sections drawn on recent interpretations of
international and regional human rights treaties and on developments within the EU. The EU has in
fact given birth to a unique asylum system that is a significant illustration of intersection between
IRL and IHRL, whereby the Refugees Convention as the cornerstone of Common European
Asylum System (‘CEAS’)
11
is combined with the need to respect the EU’s (international and
internal) human rights obligations. Some final remarks are made in Section 5.
2. Proof of intersections between IRL and IHRL in asylum claims based
on sexual orientation
In both IHRL and IRL, a clear trend has progressively emerged for addressing sexual minorities’
protection claims that was absent at the time of their genesis. All relevant instruments, including
respectively the Refugees Convention and human rights treaties, have been given an evolving
reading to reflect the social development of today’s international community, both in terms of
forms of persecution and of prohibited discrimination in the enjoyment of the full catalogue of
human rights and freedoms.
12
First looking at IRL, the persecution of people fleeing homophobia gained international atten-
tion due to the process of ‘gendering’ the Refugees Convention.
13
The peak of this process was the
9. Among others, Jenni Millbank ‘The Role of Rights in Asylum Claims Based on Sexual Orientation’ (2004) 4(2) Human
Rights Law Review 193; James Hathaway and James Pobjoy ‘Queer Cases Make Bad Law’ (2012) 44(2) International
Law and Politics 315; Jenni Millbank ‘The Right of Lesbians and Gay Men to Live Freely, Openly and on Equal Terms
is Not Bad Law: A Reply to Hathaway and Pobjoy’ (2012) 44(2) International Law Politics 497; Marco Balboni La
protezione internazionale in ragione del genere, dell’orientamento sessuale e dell’identita
`di genere (Giappichelli
2012); Thomas Spijkerboer (ed), Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum (Routledge
2013); France Houle and Karine Mac Allister ‘Quand le Droit International des Droits de l’Homme et le Droit Canadien
des R´efugi´es LGBTQþConvergent’ (2017) 29(2) Canadian Journal of Women and the Law 317.
10. The SOGICA project includes fieldwork research, with interviews, focus groups and observations in court, in UK,
Germany and Italy. The fieldwork research has been approved by the Social Sciences & Arts Cross-Schools Research
Ethics Committee (C-REC) ethical review process at the University of Sussex (Approval no. ER/NH285/1). The
evidence used in this article refers to the outcomes of 40 interviews carried out with a variety of actors (people claiming
asylum, decision-makers, professionals and volunteers working with and/or supporting SOGI claimants) in Italy, in
2017 and 2018. See for more info, accessed 7 August 2019.
11. Eg Case C 604/12, N. H.N. v Minister for Justice, Equality and Law Reform and Others [2014] ECLI:EU:C:2012:744, para 27.
12. Carmelo Danisi Tutela dei Diritti Umani,Non Discriminazione e Orientamento Sessuale (Editoriale Scientifica 2015).
13. UNHCR, Guidelines on International Protection: Gender-Related Persecution, 2002 (UNHCR Gender Guidelines).
Danisi 361
adoption by the UNHCR of specific SOGI Guidelines,
14
which significantly draw on IHRL. In
particular, the Guidelines made clear that SOGI claims are not based only on ‘exogenous’ harms
but, more often than not, originate from what can be called an ‘intimate modification’ of oneself
imposed by the society in which the individual lives. This is not equal to (only) a modification of
behaviour in, or the impact of this modification on, people fleeing homophobia.
15
Because sexual
orientation is an innate or an immutable characteristic protected as such under IHRL, harm may
also arise from the inability to express one’s identity without fear of persecution. Therefore, people
cannot be required to renounce or conceal their sexual orientation in recognition of the impact this
has in every dimension of life.
16
In this way, the UNHCR SOGI Guidelines crossed the border of classical harm in the refugee
context to include types of relational-driven harms, ie those originating from the interaction
between an inherent personal characteristic and an external environment preventing its full expres-
sion. At the same time, they stressed the variety of experiences of people claiming asylum on
sexual orientation grounds, which may be influenced by cultural, econo mic, family, political,
religious and social factors. Although this interaction may vary across countries and people in
light of the different factors at play, the need for international protection may nonetheless arise.
Additionally, the nature of this interaction does not prevent an asylum claim arising even when the
inherent characteristic is not possessed. In fact, in line with the general interpretation of the notion
of refugee, it is sufficient that one’s belonging to a sexual minority – eg being gay – is assumed by
the surrounding society (‘attribution’), thus generating the risk of related persecution.
17
As with the
gender dimension, this may be the case when the person has simply refused to adhere to ‘socially or
culturally defined roles or expectations of behaviour attributed to his or her sex’,
18
thus engender-
ing the suspicion of being non-heterosexual. This occurs even more frequently, according to cases
reported by decision-makers in Italy when men have sex with other men for economic reasons or
needs.
19
For the purposes of application of the Refugees Convention, it is immaterial whether these
men are gay, what matters is whether they have a well-founded fear of persecution because are
perceived as such by the surrounding society.
Following previous attempts by the UNHCR
20
based on a reading of IRL in light of IHRL, the
Guidelines also clarify that persecution has a case-specific dimension consisting of ‘serious’
human rights violations or ‘the cumulative effects’ of a number of these violations.
21
Most impor-
tantly, they stress that this seriousness refer s to the harm perpetrated upon, or feared by, the
14. UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or
Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the
Status of Refugees, 2012 (UNHCR SOGI Guidelines). In light of the scope of these Guidelines, this section might also
refer to gender identity where appropriate.
15. Hathaway and Pobjoy (n 9) 333.
16. The CJEU shared also this view in Joined judgments C 199/12 to C 201/12, Minister voor Immigratie en Asiel v X and Y
and Z v Minister voor Immigratie en Asiel (X and Others) [2013] ECLI: EU: C:2013:720, para 70. This article does not
investigate the issue of ‘discretion’, but see Moira Dustin ‘Many Rivers to Cross: The Recognition of LGBTQI Asylum
in the UK’ (2018) International Journal of Refugee Law, 104-127.
17. UNHCR Gender Guidelines (n 13) para 41.
18. ibid para 16.
19. Eg, interview with first-instance judge (Italy, 9 April 2018).
20. UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention’ (Geneva
2011, re-issued).
21. ibid paras 51-53; UNHCR SOGI Guidelines (n 14) paras 20-25.
362 Netherlands Quarterly of Human Rights 37(4)
claimant and if this harm had or might have a de grading and humiliating effe ct, irrespective of
being ‘physically, psychologically or socially’ produced. This definition seems to support a
powerful conclusion: when sexual orientation is involved, the threshold of se verity can also be
reached when the treatment of the person at stake amounts to a denial of this intimate
characteristic, including self-denial or feelings of shame leading to the inability to be open
about one’s sexual orientation.
22
Yet, as we will show below, seven years after the adoption
of said Guidelines these human rights violations are still not univocally identified as
persecution.
If we move to IHRL, thanks to an increasing international consensus,
23
a constant trend has
emerged calling for an inclusive interpretation of the full catalogue of human rights, alone
and in combination with non-discrimination provisions where these provisions complement
other substantive rights and freedoms (eg Art. 2 ICCPR; Art. 14 ECHR). Without analysing
here the peculiarities of this process, it is noticeable that such an evolution emerges in the
activities of all international human rights treaty-based bodies, as well as in universal fora
such as the UN General Assembly or the UN Human Rights Council.
24
A transversal trend
also informs all regional organisations – the Organisation for American States (‘OAS’),
25
the
African Union (‘AU’),
26
the Council of Europe (‘CoE’)
27
– leading, at least to a certain
extent, regional human rights bodies to include the SOGI dimension in the interpretation of
regional charters and conventions.
Taken comprehensively, these developments have reinforced the understanding of sexual orien-
tation as a core human rights issue. Furthermore, international and regional human rights bodies
have progressively affirmed the idea that contracting States may be asked to undertake positive
actions to address sexual minorities’ specific needs. Similarly, blanket restrictions on the enjoy-
ment of human rights based solely on SOGI have been found to amount to serious interferences, if
not denials, of one’s most intimate aspect.
28
Perhaps even more interestingly, the same human
rights bodies have also drawn attention to the nexus between the lack of enjoyment of human rights
and the consequence for the individual expression of sexual orientation in terms of one’s ability to
freely make life choices. As a result, the long-standing distinction between prohibited treatment
and permissible restrictions under IHRL is increasingly put to the test. For instance, it becomes
extremely difficult nowadays to justify restrictions on the enjoyment of the right to respect for
family life, being this right also a way to express one’s sexual orientation deserving protection
under IHRL
29
(and, as argued below, also under IRL). It is no surprise that these developments
have also had positive implications for the treatment of claimants who request asylum in reasons of
sexual orientation at arrival. If we focus on Europe, the most powerful instance of this (new)
22. ibid paras 26-33.
23. Eg UN Human Rights Council, ‘Human Rights, Sexual Orientation and Gender Identity’ (2 October 2014) UN Doc
A/HRC/RES/27/32.
24. Dominic McGoldrick ‘The Development and Status of Sexual Orientation Discrimination under International Human
Rights Law’ (2016) 16(4) Human Rights Law Review, 613.
25. Eg Human Rights, Sexual Orientation, and Gender Identity and Expression, 5 June 2014, Resolution AG/RES. 2863
(XLIV-O/14).
26. Eg African Commission on Human and Peoples’ Rights, Resolution 275, 12 May 2014.
27. Eg Committee of Ministers of the CoE, Measures to Combat Discrimination Based on Sexual Orientation or Gender
Identity, 31 March 2010, Recommendation CM/Rec(2010)5.
28. Eg Smith and Grady v UK App nos 33985/96 and 33986/96 (ECtHR, 27 September 1999).
29. Eg Oliari and Others v Italy App nos 18766/11 and 36030/11 (ECtHR, 21 July 2015).
Danisi 363
approach to people fleeing homophobia emerged in O.M. v Hungary.
30
Here the European Court of
Human Rights (‘ECtHR’ or ‘Court’) clearly identified sexual minorities with an asylum back-
ground as a ‘vulnerable’ group, thus calling upon CoE States to provide individualised assessments
and elaborate specific solutions to their particular needs once these claimants reach their borders.
This overall evolution is extremely relevant for arguing that IHRL may still play an additional
role in the protection of people fleeing homophobia in intersection with IRL, if we focus the
attention on the territorial and normative borders that these claimants encounter in their search
of a ‘safe place’, as the next sections show.
3. Beyond (territorial) borders: facilitating access to asylum through
IHRL
Despite its primary aim being to protect people fleeing persecution on the five grounds provided
by the Refugees Convention, IRL does not require that contracting States facilitate access to their
national asylum determination systems. The same requirement, if aimed at preventing human
rights violations, is still being debated under IHRL. To the contrary, at least in Europe, we
instead see increased efforts to prevent such access. As Violeta Moreno-Lax has eff ectively
demonstrated in relation to the EU’s and its Member States’ migration policies, nowadays a
complex mix of border controls follow migrants, including asylum claimants, in their attempt to
access Europe. Strikingly enough, ‘the system as currently devised appears to imply that, while
pre-entry controls can operate extraterritoriality, protection obligations arise only if pot ential
beneficiaries present themselves at the (physical) borders of the EU’.
31
In practice, the main
consequence is a high risk of exposing asylum claimants to dangerous journeys to reach
European borders.
This risk emerges powerfully in the personal accounts of SOGI claimants from Sub-Saharan
African countries gathered through the SOGICA fieldwork. Their journeys to Europe have always
exposed them to serious human rights violations, including forced stays,
32
, forced labour, sexual
exploitation and robberies,
33
and rapes.
34
In the worst scenario, a claimant from Cameroon
reported ‘I came with my boyfriend but he didn’t make it, he died in the sea’,
35
but the lack of
legal recognition of their relationship prevented him from reporting his boyfriend’s death appro-
priately and seeing it recorded as such. In recounting their passage to Libya, a claimant from
Nigeria even stated that ‘[i]t’s even better that you are recognised as a gay in Nigeria than to be
recognised as a gay in Libya’.
36
These violations seem to combine the well-documented general
hostility towards migrants with hostility to sexual minorities. As a claimant from Cameroon
explained, ‘I didn’t face a problem a s a LGBT because I didn’t identify myself as a LGBT.
I was just passing. So nobody, like, knew who I was [ ...] But, based on other stories I hear
30. O.M. v Hungary App no 9912/15 (ECtHR, 5 July 2016). On the concept of vulnerability in the ECHR, see Alexandra
Timmer, Lourdes Peroni ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights
Convention Law’ (2013) International Journal of Constitutional Law, 1056.
31. Violeta Moreno-Lax, Accessing Asylum in Europe (OUP 2018) 247.
32. Interview with male claimant from Nigeria (Italy, 3 January 2018).
33. Interview with male claimant from Nigeria (Italy, 30 June 2018).
34. Interview with female claimant from Nigeria (Italy, 20 April 2018).
35. Interview with male claimant from Cameroon (Italy, 17 October 2017).
36. Interview with male claimant from Nigeria (Italy, 16 December 2017).
364 Netherlands Quarterly of Human Rights 37(4)
[...] especially in the Muslim countries [LGBT claimants] are being tortured [ ...] they can kill
you’.
37
Of course, avoiding human rights violations by deciding to hide one’s sexual orientation is
not always a possible or practical ‘choice’.
38
Despite the risk of exposing asylum claimants to these additional abuses and suffering, the
existence of an obligation to grant safe access to asylum claimants by issuing humanitarian visas
was dismissed within the EU by the Court of Justice of the European Union (‘CJEU’).
39
Interest-
ingly, although EU asylum law aims to create a sort of ‘Geneva þ’ trying to combine the respect of
IRL with IHRL, issuing humanitarian visas cannot be derived from the current state of EU law but
remains nonetheless a possibility left to EU Member States’ discretion. As the CJEU notes this
discretion should be implemented in c ompliance with their international obligations, ie those
derived from IRL and IHRL, beyond EU law.
40
In order to verify whether such compliance may
lead to an obligation to facilitate access to national asylum determination procedures for people
fleeing homophobia, this article now focuses attention on the effects that the denial of humanitar-
ian visas has on these people.
3.1 Establishing jurisdiction and ‘impact’
The absence of an obligation to facilitate access to asylum under IRL is essentially connected with
the scope of application of the Refugees Convention. As other international treaties, that Conven-
tion binds States within their territorial borders. Even its core protection beyond refugee status, ie
the duty of non-refoulement under Article 33, which may be implied in the process of deciding the
issuance a humanitarian visa, makes no exception. More precisely, although Article 33 of the
Refugees Convention can be applied to all refugees/people claiming asylum against any measures
leading – directly or indirectly – to refoulement, this provision does not make clear whether or not
it has extraterritorial effect. This state of uncertainty is also due to the general scope of the
Refugees Convention. In light of the notion of refugee, th is Convention requires that asylum
claimants, being unable or unwilling to request protection in the State of origin, should apply
‘before’ the authorities of the receiving State (thus implying in most cases a physical presence in
this State or, at least, at its borders). Following the same rule, the non-refoulement principle under
the Refugees Convention seems to require the presence of the people in need of international
protection in the receiving State (or at its borders) in order to apply.
41
When human rights bodies have been called to interpret IRL, they have provided a broader
reading of this provision. For instance, the Inter-American Commission on Human Rights found
that Article 33 of the Refugees Convention cannot have the above geographical limitation.
42
In its
view, despite being primarily territorial, the application of this Convention depends on the receiv-
ing State’s position with respect to the asylum claimant. It follows that this person can also be
37. Interview with male claimant from Cameroon (Italy, 17 October 2017).
38. For instance, in terms of appearance, some gay people may find difficult to behave as being straight. See also the
reasoning followed by the ECtHR in the first cases related to the criminalisation of same-sex sexual activity in
defendant States: Norris v UK App no 10581/83 (ECtHR, 26 October 1988); Modinos v Cipros App no. 15070/89
(ECtHR, 22 April 1993).
40. ibid paras 44-45 and 51.
41. See Moreno-Lax (n 31).
42. The Haitian Centre for Human Rights et al. v United States Case 10.675 (Inter-American Commission, 13 March 1997)
para 157.
Danisi 365
‘under the control’ of one of the contracting States – eg a foreign territory over which it exercises
its power by invitation or force,
43
or when they are placed under that State’s authority, eg before
diplomatic agents or on ships flying its flag
44
– in order to enjoy protection against non-refoule-
ment.
45
Yet, even if this is true, the protection against non-refoulement under IRL would none-
theless be limited to cases of persecution for the reasons expressed in Article 33 of the Refugees
Convention, ie those relevant for being identified as a refugee (race, religion, nationality, mem-
bership of a particular social group or political opinion).
Considering the difficulty experienced by people fleeing homophobia in proving a well-
founded fear of persecution (see section 4 below), IHRL goes beyond these limitations by
potentially ensuring a wider and autonomous protection. In fact, the principle of non-refoulement
in human rights treaties has been included or developed to prevent torture and, as in the case of
the ECHR, inhuman and degrading treatment on any basis.
46
Consequently, it can also cover a
more comprehensive range of situations that may not prima facie amount to persecution per se or
that are experienced during the journeys to access asylum. On this basis, IHRL may require that
relevant States to not expose asylum claimants, whointendtosubmitanasylumapplicationand
are under their jurisdiction, to forms of prohibited ill-treatment, including those motivated by
one’s sexual orientation.
Therefore, it can be argued that, under IHRL, States that exercise authority over asylum
claimants by deciding whether or not to admit them to their territory, so as to have their asylum
requests duly evaluated, are required to consider the impact that their decision has in terms of
exposure to human rights violations. This argument seems to be supported in particular by the
recent interpretation of the International Covenant on Civil and Political Rights (‘ICCPR’) by the
Human Rights Committee (‘HRC’). In its General comment no. 36 on Article 6 ICCPR (the right to
life), the HRC makes two fundamental statements for our purposes. First, it states that the right to
life ‘concerns the entitlement of individuals to be free from acts and omissions that are intended or
may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’,
focusing the attention on the ‘fores eeable and preventable life-terminating harm or injury ’.
47
Second, by looking at the observance of contracting States’ obligations beyond territorial borders,
it points out that the contracting State ‘must also take appropriate legislative and other measures to
ensure that all activities taking place in whole or in part within their territory and in other places
subject to their jurisdiction, but having a direct and reasonably foreseeable impact on the right to
life of individuals outside their territory, are consistent’
48
with Article 6 ICCPR. Considering the
43. Eg HRC, Concluding Observations: Israel, 18 August 1998, para 10; ICJ, Legal Consequences of the Construction of a
Wall in OPT, 9 July 2004, para 109.
44. For a summary of relevant decisions by human rights bodies, see Lisa Heschl, Protecting the Rights of Refugees Beyond
European Borders (Intersentia 2018) 63-80.
45. See also the ECtHR’s case law, which has being pushing jurisdiction beyond European territorial borders to ensure that
certain ECHR rights are effectively enjoyed by people fleeing persecution when they are placed under the control of a
State party: Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, 21 October 2014); Hirsi and Others v
Italy App no 27765/09 (ECtHR, GC, 23 February 2012).
46. See Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between
Refugee Law and Human Rights Law’ in Ruth Rubio-Mar´ın (ed), Human Rights and Immigration (OUP 2014).
47. HRC, General Comment no. 36, 2018, paras 5-7.
48. ibid para 22 (emphasis added). Indeed, at para 63, the HRC clearly finds that all persons subject to its jurisdiction means
‘all persons over whose enjoyment of the right to life [a State party] exercises power or effective control. This includes
366 Netherlands Quarterly of Human Rights 37(4)
right to life as a non-derogable right as well as the prohibition of torture and the principle of non-
refoulement, the position adopted by the HRC may have a wider application.
Following this reasoning, any decision adopted in places subject to contracting States’ jurisdic-
tion which prevents people fleeing homophobia from accessing asylum should embed an evalua-
tion of its ‘direct and reasonably foreseeable impact’ on the enjoyment of these rights outside their
territory. If considering the example of a decision on the issuance of a humanitarian visa requested
by a person who wishes to flee homophobia, the specific situation of this group of claimants seems
to play a central role in this evaluation. First, the general risks to which this group is exposed is
publicly known. The levels of homophobia or transphobia of the countries of origin, as well as of
those that need to be crossed to access asylum, are regularly monitored and documented, eg by
relying on the existence of laws criminalising a specific sexual orientation. Considering the
personal accounts reported above, in addition to the abuses occurred or might occur in their
countries if they do not flee, SOGI claimants often need to cross countries, like North-African
States, which cannot be assumed to be safe in light of their human rights records in this field.
49
Second, and perhaps mostly important, in the case of refusal of a safe passage to the destination
country of asylum, this group of claimants is often forced to travel with people having the same
cultural and social background as their persecutors in their countries of origin. In light of the
developments that have occurred within IRL and IHRL (see section 2), this means they need to
continue hiding their identity to avoid additional abuse and violence, which amounts, at least, to
degrading treatment (see below). Consequently, in the case of people fleeing homophobia, there
are substantial grounds for believing that the decision to deny a humanitarian visa may expose
them to violations of the prohibition of torture and/or inhuman or degrading treatment and, in the
worst-case scenario, of the right to life. The impact of such decisions seems indeed reasonably
‘foreseeable’ and ‘direct’, calling States bound by IHRL to prevent these violations, if not also
ensuring an effective implementation of IRL-related obligations.
3.2 Identifying obligations
This position appears to be supported by the lastest developments in the ECtHR’s case law, both
from a general perspective, in relation to the application of the non-refoulement principle, as well
as from a more specific point of view, when people fleeing homophobia are involved.
In relation to the principle of non-refoulement,inM.A. and Others v Lithuania
50
the ECtHR
removals’ from a contracting State to another country.
51
In fact, Article 3 may also cover a decision
of ‘non-admission’ at the contracting State’s borders if that decision, taken without a previous
examination of the individual situation of the applicants, prevents people wishing to claim asylum
from presenting their case before a relevant authority. The ECtHR seems therefore open to
embracing a new role for the prohibition of torture and ill-treatment (as well as the right to life).
persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by
its military or other activities in a direct and reasonably foreseeable manner’ (emphasis added).
49. SOGICA interviews (n 10).
50. M.A. and Others v Lithuania App no 59793/17 (ECtHR, 12 December 2018).
51. Most of the ECtHR’s case law has been focused so far on the responsibility of the ECHR Member States for removing
or pushing back people claiming asylum: eg M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, GC, 21 January
2011); Hirsi and Others v Italy (n 45).
Danisi 367
In deciding whether refusing admission to Lithuania to a family of seven Russian nationals wishing
to claim asylum was a violation of the ECHR, the Court found that the case clearly fell within the
defendant State’s jurisdiction because the decision of non-admission was attributable to Lithuanian
authorities. Moreover, substantially in light of the ‘foreseeable’ and ‘direct’ impact of a negative
decision, the ECtHR stressed the particular ethnic and political background of the applicants, taken
jointly with their intention to request asylum,
52
to hold that it was Lithuania’s responsibility to
accept their entry. As a corollary guarantee, in light of the serious risks to which applicants could
be reasonably exposed outside Lithuania’s territory, its authorities were also required under Article
13 ECHR to ensure them the possibility of appeal before a domestic court with an automatic
suspensive effect of the decisions refusing them entry into its territory.
53
If the specific situation of the asylum claimants was an essential element in the reading of
fleeing homophobia cannot certainly ignore their particular condition. Following the recognition of
their ‘vulnerability’ in O.M. v Hungary,
54
the ECtHR found that the defendant State should have
paid particular attention to the specific needs of the applicant once he had identified himself as a
claimant fleeing homophobia. In practice, this could have been ensured only by carrying out an
individual assessment of his case to establish the impact of an inappropriate detention at border on
the enjoyment of his human rights under t he ECHR. Although that particular case related to
deprivation of liberty at borders, protected under Article 5 ECHR, the ECtHR set a p rinciple
that has wider application. When people fleeing homophobia fall under the jurisdiction of one or
more contracting State(s), positive obligations may arise to prevent–astheECtHRputit–the
reproduction of ‘the plight that forced’ them to flee in the first place.
55
It may be argued that, in
addition to measures aimed to return, expel or push back, these positive obligations apply in
relation to any attempt to access asylum refugee determination procedures in Europe, at border
or even from their country of origin. In fact, the ‘impact’ of a decision denying entry to a
contracting State may expose people fleeing homophobia to the reproduction of the ‘plight’ to
which the ECtHR referred to.
In sum, once jurisdiction has been established and in light of their ‘identified’ vulnerability,
IHRL may complement IRL in creating specific obligations to facilitate access to asylum in order
to prevent the additional abuses and life-threatening violence which people fleeing homophobia
may be exposed to when they express their intention to submit an asylum claim before the
receiving State’s authorities. These may include diplomatic agents but, more generally, all those
authorities whose decisions on entry may have a foreseeable and direct impact on the enjoyment of
their human rights, at least non-derogable ones. Consequently, for example taking into account the
excluded, which might foster in turn a similar development within EU.
Yet, to be sure, even if a duty to protect people belonging to sexual minorities wishing to claim
asylum exists under IHRL, it may not be easy for claimants to secure this protection. The enjoy-
ment of such guarantees requires the expression of the reason for seeking asylum, which may be an
insurmountable barrier for those who fear additional persecution in case of refusal. As one
52. To be manifested in whatever form, even orally: M.A. and Others v Lithuania para 109.
53. ibid para 119.
54. O.M. v Hungary (n 30) para 53.
55. ibid.
368 Netherlands Quarterly of Human Rights 37(4)
SOGICA interviewee put it, ‘I do not need to tell my story to anyone’.
56
Others may be unaware of
the possibility of securing international protection for such reasons. Yet where people fleeing
homophobia are able to promptly manifest the reasons for asking asylum, this is no guarantee
that they will be recognised as refugees under IRL. They then need to convince national asylum
decision makers that they fit the refugee definition and, in particular, that their fear of persecution
is well-founded. This specific difficulty for people fleeing homophobia seems to relate to the role
attributed to IHRL in the interpretation of IRL, which prevents a more fruitful intersection between
these areas of international law as the next section explores.
4. Beyond (normative) borders: interpreting persecution through IHRL
The analysis of the UNHCR SOGI Guidelines shows that the identification of (suffered or feared)
persecution is, unquestionably, the area where IRL has benefited the most from developments
occurred in IHRL.
57
Yet, neither the Refugees Convention nor these same SOGI Guidelines define
the notion of persecution.
58
As explored above, the SOGI Guidelines provide only guidance for
decision-makers by recalling the seriousness of the harm to identify persecution and stressing the
importance of the effect of the (suffered or feared) treatment on the asylum claimant. In doing so,
the SOGI Guidelines insist on discrimination suffered in every dimension of the lives of this
specific group of claimants.
59
Consequently, the Guidelines avoid identifying which human rights
violations amount to persecution. To do so would have risked establishing a fixed – clear but
disputable – distinction between ‘human rights violations leading to persecution’ and ‘other human
rights violations’, which do not amount to persecution. Examples of the first category of violations
are nonetheless provided and include criminalisation of homosexuality and/or same-sex sexual
activities and the concealment of one’s SOGI.
60
Not surprisingly, such a distinction between human rights violations does not emerge either
from claimants’ own experiences. For instance, in an attempt to explain his fear of persecution in
Cameroon, a claimant stressed that ‘[s]exual orientation in my country is [ ...] like an abomination
[...] people should not even talk about it. [...] And you are an outcast in the society because first
you lose your family, then you lose all the friends you have, and then everywhere you go in the
society you are being haunted by the people. So, at times so many people don’t even get the chance
to experience their life or to try to, like, discover who they really are because of the society’.
61
That
is why for ‘a typical African [ ...] these are things that you don’t tell people. This is something you
keep to yourself and you ask a question to yourself and you try to answer yourself because telling
another person ... I cannot’.
62
Even adopting what was thought as the ‘safest behaviour’ to avoid
being rejected by family and society, people may be nonetheless forced to escape. As another
claimant put it, ‘[t]hey don’t like erm ... bisexual or this sexual, how to call it, this gay and lesbian
56. Interview with male claimant from Gambia (Italy, 20 April 2018).
57. See James Hathaway, The Law of Refugee Status (CUP 1991), where a first definition of persecution was provided with
reference to human rights: persecution was qualified as a ‘sustained or systemic violation of basic human rights
demonstrative of a failure of state protection’, 104.
58. But see the UNHCR Handbook (n 20), which is not binding.
59. UNHCR SOGI Guidelines (n 14) paras 21-25.
60. ibid paras 26-33.
61. Interview with male claimant from Cameroon (Italy, 17 October 2017).
62. ibid.
Danisi 369
issue. But since I was doing it, it is just that they never caught me off and I was never expecting it
could happen but unfortunately it has happened’.
63
The randomness of events was stressed by a
Nigerian claimant: ‘if they find out you are a lesbian, they will put you in prison [ ...], they started
blackmailing me to bring money [ ...]. Without saying it, [...] without maybe catching you doing
it, maybe that is what they believe. [ ...] everybody will hate you. Everybody will discriminate
you, you know, look as if you are alone’.
64
In this respect, social gender-related expectations
clearly play a role: ‘it got to a point where my mother [wanted] to go and pick a woman from
nowhere and to say ‘come we want to tie you to my son [ ...] we need a grandchild’. [ ...] I have
not been accepted, I still feel somehow caged’.
65
These experiences support the view that, when asylum claimants belonging to sexual minorities
are at stake, feared persecution becomes a fundamental part of their life, well before ‘visible’
human rights violations occur. This fits with the idea of ‘intimate modification’ of oneself imposed
by society, as explored in section 2, which the SOGI Guidelines seem to adopt to regulate the
relation between IHRL and IRL.
However, due to the lack of a definition of persecution in the Refugees Convention, decision-
makers have supported a more restrictive reading of IRL and, in turn, of the SOGI Guidelines. In
fact, when looking at their current practice, decision-makers tend to focus on ‘visible’ and specific
abuses in human rights terms in order to recognise refugee status. Interestingly, in absence of these
abuses, the decision may either consist of a denial of international protection or, as a proof of the
inconsistency of their approach to IRL in light of IHRL, of alternative forms of protection (eg
subsidiary protection or humanitarian protection). As the following sub-sections show, this
approach seems to be connected with the idea decision-makers have about the real role to be
played by IHRL in the interpretation of IRL.
4.1 Avoiding confusion: how IHRL contributes to the definition of persecution in IRL
Taking into account the internati onal law of the treaties, in the absence of a specific agreed
definition of persecution, contracting States of the Refugees Convention are required to read and
apply it using the criteria of interpretation codified in Article 31 VCLT. Persecution shall therefore
be interpreted in good faith and in accordance with its ordinary meaning, in light of the Conven-
tion’s object and purpose and of the context, together with any relevant rules of international law
applicable in the relations between the parties. These rules certainly include IHRL, especially
universal and regional treaties that, despite their variety and scope, protect a wide catalogue of
rights or freedoms. As explored above, according to the evolving reading of these treaties by the
related human rights bodies, all these rights and freedoms are crucial for the legal and social equal
recognition of sexual minorities. Consequently, every protected human right and freedom may be
potentially relevant for defining persecution in IRL. If read together with the procedural require-
ments imposed under IHRL for ensuring an individual examination of the case of each claimant
(see section 3), identifying persecution in SOGI claims seems to require a flexible approach based
on the effect that the alleged human rights violations have on each individual.
63. Interview with female claimant from Gambia (Italy, 6 March 2018).
64. Interview with female claimant from Nigeria (Italy, 20 April 2018) (emphasis added).
65. Interview with male claimant from Nigeria (Italy, 30 June 2018).
370 Netherlands Quarterly of Human Rights 37(4)
In the European context, the EU’s attempt in this respect is illustrative. EU law has tried to
adopt such an approach by emphasizing the interaction between IRL and IHRL in the identification
of a common, EU-wide, notion of persecution. In fact, going beyond the Refugees Convention, the
EU Qualification Directive provides the first comprehensive definition of this term: ‘to qualify as
persecution, an act must be sufficiently serious by its nature or repetition as to constitute a severe
violation of basic human rights’, or ‘be an accumulation of various measures provided that the
effect is similar to the latter violation’.
66
As Storey has already observed,
67
this provision may be
seen as the best available ‘working definition’ of persecution to implement the Refugees Conven-
tion in light of its text, aim and context, including IHRL. Even the non-exhaustive list of acts of
persecution confirms this view. These are not based on specific rights, but stress the discriminatory
effect produced on people’s lives. To name a few, these can be physical or mental violence, legal,
administrative, police, and/or judicial measures which are in themselves discriminatory or which
are implemented in a discriminatory manner, and acts of a gender-specific nature.
68
Nevertheless, when applied to claims based on sexual orientation, doubts have arisen in the
identification of which acts are ‘serious enough’ to qualify as persecution. Probably supported by
the reference to ‘rights from which derogation cannot be made’ included in the same provision for
identifying an ‘example’ of basic human rights, decision-makers seem to have increasingly set an
artificial border within the IHRL’s catalogue to regulate its intersection with IRL. Some recent
decisions, issued both at supranational and domestic levels, may help to illustrate this point.
Called upon to interpret the EU Qualification Directive’s provision in relation to sexual orien-
tation claims, the CJEU gave proof of the difficulty in adapting this working definition of persecu-
tion to people fleeing homophobia based on IHRL. On the one hand, X and Others clearly shows
how human rights-based considerations may operate in this context. The CJEU accepted that
sexual orientation is a fundamental aspect of human personality and, as such, should not be
concealed.
69
Consequently, as human rights holders, people who fear persecution for belonging
to sexual minorities cannot be asked to keep behaving discreetly because such a request would
qualify as a serious human rights violation and a de facto (additional) form of persecution. On the
other hand, the CJEU set aside IHRL by considering the existence of legislation criminalising
same-sex acts in the claimants’ home countries ‘not serious enough’ to identify persecution.
70
In
other words, despite the general acknowledgement of the endogenous harm to which people
fleeing homophobia are exposed in such countries, the CJEU paid no attention to the effect of
criminalisation on their life in terms of human rights enjoyment. In fact, only when this effect
becomes ‘visible’ through a death sentence or a formal punishment in prison, does criminalisation
reach a sufficient level of seriousness to qualify as a form of persecution for asylum purposes.
66. See Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or sta-
teless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for
subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9 (Qualification Directive),
Articles 9, a) and b).
67. Hugo Storey ‘What Constitutes Persecution? Towards a Working Definition’ (2014) International Journal of Refugee
Law 282.
68. Directive 2011/95/EU (n 66) Article 9.2.
69. As the CJEU put it in X and Others (n 16) para 70, ‘requiring members of a social group sharing the same sexual
orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a
person’s identity that the persons concerned cannot be required to renounce it’.
70. ibid paras 53-54: ‘not all violations of fundamental rights suffered by a homosexual asylum seeker will necessarily
reach that level of seriousness’.
Danisi 371
In IHRL terms, this seems to support the (disputable) view that criminalisation would only qualify
as persecution to the extent it produces violations of basic human rights, such as the right to life or
the prohibition of torture, ie when it is concretely applied and entails sanctions of a certain severity.
This finding by the CJEU may be unsurprising if read in light of the ECtHR’s case law on these
basic rights. Although the ECHR does not enshrine a right to asylum, the ECtHR has been called to
evaluate violations of the ECHR alleged by people fleeing homophobia who risked being sent back
to their country of origin following the rejection of their asylum application.
71
Yet, since only
asylum claimants being returned to their home country or to a third State, the ECtHR has been
unable to protect people fleeing homophobia under the non-refoulement principle to this day. In
fact, by relying on the national authorities’ ‘better position’ to evaluate these cases, the ECtHR
has never found that the risks to which applicants could have been exposed were ‘severe enough’
to amount to inhuman or degrading treatment and/or torture (or life-threatening acts). The
epitome of this approach was reached in M.E. v Sweden,
72
where the ECtHR went as far to
accept the possibility of sending a self-identified homosexual person back to his home country
because ‘he could restrict’ his sexual orientation to the private dimension of his life.
73
It is no
coincidence that in X and Others, following this ECtHR approach, the CJEU seemed to exclude
such serious risks by limiting the human rights ‘connected’ to sexual orientation to certain non-
derogable rights enshrined in the EU Charter of Fundamental Rights of the EU.
74
Consequently,
if a situation is not identified as falling within non-derogable human rights, ie when people
fleeing homophobia have tried to enjoy ‘other’ human rights such as the right to respect for
private and family life or the prohibition of discrimination in their countries, it may fall short of
being considered in terms of persecution.
An example of this reasoning comes from an asylum case that was adjudicated at the national
level, namely before a first instance Tribunal in Italy, and was related to the refusal of refugee
status to a Ukrainian national for feared persecution on account of her sexual orienta tion.
75
According to the applicant, she was for ced to leave her country because the denigration and
hostility against her and her partner by the Ukrainian society, and their surrounding community
in particular, reached an unbearable point.
76
Although the applicant and her partner had cohabi-
tated for two years before leaving Ukraine, the applicant publicly hid the real reason for moving
into her partner’s flat, thus pretending to be her housekeeper. Only on one occasion was this
71. For a full list, see Nuno Ferreira, ‘Tables of European SOGI Asylum Jurisprudence’ (University of Sussex, 2019)
Silvia Falcetta, Paul Johnson ‘Migration, Sexual Orientation, and the European Convention on Human Rights’ (2018)
Journal of Immigration Asylum and Nationality Law.
72. M.E. v Sweden App no 71398/12 (ECtHR, 26 June 2014).
73. ibid, but it is worth noting that this forced concealment was hypothetically meant to be limited in time, ie until a request
for family reunion before a Swedish diplomatic representation could be submitted abroad and eventually accepted. See
also M.E. v Sweden App no 71398/12 (ECtHR (GC), 8 April 2015). The GC decided to strike out this case but
interestingly underlined that, in granting the permit, the national authorities had taken into account the applicant’s
sexual identity.
74. See X and Others (n 16) paras 53-54: ‘the fundamental rights specifically linked to the sexual orientation ...[Articles 7
and 21 of the EU Charter] [are] not among the fundamental human rights from which no derogation is possible’
(emphasis added).
75. Tribunal of Brescia, 29 May 2018, case 19245/2017.
76. ibid.
372 Netherlands Quarterly of Human Rights 37(4)
hostility reported to have led to acts of vandalism. Though the applicant’s account was deemed
credible, in the Tribunal’s view she could not be said to have suffered persecution. In fact, although
the Tribunal agreed that Ukrainian society has a general negative attitude towards sexual mino-
rities because being homosexual is against ‘Ukrainian moral principles’ and ‘absolutely unaccep-
table’,
77
it cannot be said that Ukraine persecutes LGBT people. Therefore, the lives of the
applicant and her partner had never been in danger (ie there was no ‘visible’ harm related to
acts. Interestingly, since the violations of human rights suffered and feared by the applicant were
deemed to be related ‘only to’ the denial of enjoyment of the ‘fundamental’ right to respect for
family life in Ukraine, the Tribunal rejected refugee status based on lack of persecution.
78
In sum, to this day, the requirement of sufficiently ‘serious’ or ‘severe’ acts, respectively under
the definition of persecution in EU law or the ill-treatment covered by the non-refoulement
obligation in IHRL, has not been qualified in a way that includes the endogenous suffering
experienced by people fleeing homophobia. Although recognised in human rights terms, the harm
derived from the impossibility to express a fundamental part of their identity without any fear of
persecution has not been integrated, at least at European and national levels, in the implementation
of the Refugees Convention. Therefore, while it is true that the CJEU found it irrelevant to
distinguish acts that interfere with the core areas of the expression of sexual orientation from acts
which do not affect those purported core areas,
79
both the CJEU and national decision-makers
seem to require still ‘exogenous’ harm to find persecution in sexual minorities’ asylum claims.
This state of affairs may ultimately be connected to a misconception around the exact role of the
IHRL in intersection with IRL. In the belief that IRL cannot impose obligations that the IHRL does
not demand,
80
decision-makers may find it rational to limit human rights violations leading to
persecution under IRL to those rights which call upon States to refrain from expulsion, returns,
transfers or even non-admissions in the terms argued above. However, under the Refugees Con-
vention, there is no requirement that a persecutory treatment must coincide with a specific right. In
practice, even when treatment in the country of destination does not qualify as relevant for
applying the prohibition of refoulement under IHRL, the same treatment may still be relevant for
finding persecution under IRL. Consequently, although IHRL has been taken into consideration in
the interpretation of relevant notions under IRL when people fleeing homophobia are involved, this
interpretative activity seems to be based on wrong assumptions. The implementation of the Ref-
ugees Convention risks being shaped, at least at European and national levels, by those rights
which may trigger contracting States’ responsibility vis-`a-vis people to be returned, rather than by
77. ibid para 3.1.
78. ibid para 3.2. For this reason, the applicant was nonetheless granted, on a discretionary basis, humanitarian protection
to enjoy the right protected under Article 8 ECHR. The use of ‘the lack of persecution’ for denying refugee status to
SOGI claimants is not limited to Italy. It is also referred often by decision-makers in the other two countries – Germany
and United Kingdom – analysed by the SOGICA project. See the tables of case law related to Germany and United
Kingdom at
79. X and Others (n 16) para 78. Similarly, see the Joined cases C-71/11 and C-99/11 Germany v Y and Z [2012] ECLI: EU:
C:2012:518, para 62.
80. As the ECtHR itself put it in one of the first applications submitted by a gay asylum claimant: ‘on a purely pragmatic
basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and
effective enforcement of all the rights and freedoms set out in the Convention. [ ...] Otherwise, the Convention would
impose an excessive burden on them’, see F. v UK App no 17341/03 (ECtHR, 22 June 2004) para 3.
Danisi 373
the denial of, and/or restrictions in, the enjoyment of human rights suffered by people fleeing
homophobia.
Instead, if IHRL has to be properly considered in the interpretation of IRL in light of above
mentioned VCLT criteria, it is irrelevant whether asylum claimants suffered, or risk, a violation of
a right subject to derogation.
81
In fact, since sexual orientation may be expressed – or not – in an
endless range of ways and in everyday situations that find protection as such under IHRL, the
enjoyment of any protected human right can be potentially relevant in generating a fear of perse-
cution on that ground.
82
Only if this overall enjoyment is taken into consideration in an effective
and comprehensive way, does the potential persecution in terms of ‘endogenous’, socially driven,
modification imposed in their home countries become clear. Based on the evolving inclusive
Sweden and X and Others (section 2), an approach that correctly resorts to IHRL to shape the
notion of persecution under IRL without raising unnecessary distinctions between human rights is
hereinafter illustrated.
4.2 Interpreting persecution in light of IHRL: possible ways forward
The previous section has shown that, at the European level, the suffering experienced by people
fleeing homophobia needs to be ‘visible ’ and particularly intense for identifying persecution.
Although the above experiences of people fleeing homophobia demonstrate that the origin of the
harm is not always ‘visible’ or connected to the violation of a specific human right/freedom, it is no
coincidence that a higher burden has been placed on those claimants who had not been physically
abused before leaving their home countries.
83
It is equally unsurprising that, during the SOGICA
fieldwork, we found decision-makers who believe that the recognition of refugee status depends on
the ‘intensity’ of the harm suffered, thus identifying only the most serious and continuous violation
of a non-derogable human right as persecution.
84
Yet, a few promising decisions that question this
approach can be found at the national level and are worth exploring here.
The first example comes from the Italian Supreme Court.
85
The case related to a citizen of
Senegal, a country that criminalises homosexuality. He claimed he was gay and unable to live
freely in his country because of the hostile e nvironments within the family and in society.
86
Following the administrative refusal of his asylum application, both the first and second instance
Courts rejected his claim. Specifically, without paying attention to the criminalisation in force in
Senegal, the Court of Appeal found that there was no persecution because no ‘specific and
tangible’ acts of violence and threats were alleged. Against this background, the Supreme Court
found that ‘persecution is to be considered a form of radical fight against a minority’,
87
which can
also be pursued by criminalising the behaviour that is intended to be fought. By recognising that
gay people are forced to violate Senegal’s criminal law and to expose themselves to severe
81. UNHCR SOGI Guidelines (n 14) paras 16-17.
82. Or motivate a perpetrator (or the lack of State’s protection in case of private agents) to persecute a person on the same
ground: ibid paras 34-39.
83. SOGICA interviews (n 10).
84. For instance, interview with first instance judge (Italy, 12 July 2018).
85. Italian Supreme Court, 20 September 2012, case 15981/2012.
86. ibid para 1.
87. ibid para 5.
374 Netherlands Quarterly of Human Rights 37(4)
penalties ‘to live their sexuality freely’, the Supreme Court eventually qualified persecution in
terms of severe interference with ‘private life’ and serious repercussions on ‘personal freedom’.
88
It is evident from this reasoning that persecution is far from being connected only to non-derogable
rights.
89
Other national court s seem to follow this approach by emb racing a notion of persecution that
focuses mostly on its effects on claimants rather than on specific human rights.
90
This is the case of
the Cour National du Droit d’Asile (‘CNDA’) in France. In a decision relatedto an asylum claimant
from Venezuela,
91
which interestingly does not criminalise same-sex sexual activity or homosexu-
ality, the CNDA offered important insights on a possible definition of persecution that comprehen-
sively embeds IHRL rather than looking at its scope of application. First, it recalled that a person is
neither asked to publicly manifest his/her sexual orientation in order to request refugee status, nor
requiredto avoid expressing this personalcharacteristic to escapepersecution.
92
Second,it found that,
although the law may formally protect against discrimination based on sexual orientation, same-sex
couples’ right to marriage/civil union may still not be recognised, and prejudice and exclusion may
continue permeating society.
93
Consequently,considering the humiliating effectsof these social and
institutionalattitudes on the specificsituation of the applicant,the CNDA found that sexualminorities
in Venezuelamay in effect be at risk of persecution.Viewed from theperspective of IHRL, it is evident
that the CNDA does not set any border between ‘permissible’ and ‘non-permissible’ human rights
violations suffered by sexual minorities in their country of origin. It looks insteadat the results of the
hostilesocial environment againsthomosexualityin preventing gaypeople from enjoying their human
rights (including, for instance, the right to employment
94
).
For the sake of completeness, other alternatives have been raised to reach the same fruitful
intersection between IHRL and IRL in relation to persecution of people fleeing homophobia. First,
a significant attempt to read IRL in light of IHRL can be found at the normative level. As the
previous paragraph has shown, the ‘working definition’ of persecution provided by the EU Qua-
lification Directive was thought as a combination of IRL and IHRL obligations binding the EU. As
a result, while defining persecution, it stresses the need to consider the effect of human rights
violations on each asylum claimant when it refers to persecution also as ‘an accumulation of
various measures’. Yet, it still provides that this effect should be ‘serious’ enough to be compared
to a ‘severe’ violation of basic human rights. As the above analysis of CJEU’s case law confirms,
the extent to which such an effect is really assessed in relation to the individual experience of
people fleeing homophobia remains highly doubtful. Its current implementation instead risks
forcing people fleeing homophobia to fabricate a narrative of abuses in order to have their refugee
status recognised, with negative consequences in terms of credibility once their real, ‘more sim-
ple’, story of deprivation of life’s choices comes to surface. In brief, to reach its potential aim in
terms of effective protection in cases involving people fleeing homophobia, this normative attempt
88. ibid.
89. The Italian Supreme Court reiterates often this principle: see eg Italian Supreme Court, cases 4522/2015, 9946/2017
and 26969/2017.
90. See also in the Netherlands, Rechtbank Den Haag, 25 May 2018, case NL 17.12618, concerning a claim based on
gender identity from Colombia.
91. CNDA, 14 May 2018, case 17052687.
92. ibid para 3.
93. ibid para 4.
94. ibid para 6.
Danisi 375
needs further clarification at the EU level, especially in the framework of the future reform of the
CEAS.
95
A second alternative way to interpret persecution in such a way as to embed genuinely the
protection afforded to sexual orientation by IHRL is based on a more open reading of non-
derogable rights. Taking the ECHR as an example, such an approach requires identifying the
consequences of a denial and/or restriction of one’s sexual orientation for attempting to enjoy the
full catalogue of human rights and freedoms in terms of degrading/inhuman treatment or torture
itself to qualify restrictions reserved to sexual minorities under Article 3, rather than Article 8. This
cannot be surprising though. For example, since its outset, the ECtHR has failed to qualify
criminalisation of same-sex conduct as a form of prohibited ill-treatment, because in its view this
impinges only on the right to respect for private life.
96
A possible explanation for this difficulty
relates to the current protection of sexual minorities within Europe (ie CoE). Framing treatment
suffered by people fleeing homophobia under Article 3 ECHR in light of the modification of the
self-imposed by society would require the ECtHR to confront the current restrictions to the equal
enjoyment of human rights by sexual minorities still in force in many contracting States.
97
For these reasons, only an approach to the Refugees Convention that avoids borders between
‘permissible’ human rights violations and human rights violations leading to persecution, while
stressing the effect of any human rights violati on on the individual, can ensure that IHRL is
appropriately considered in asylum claims. This will also ensure a more fruitful intersection
between IRL and IHRL, being it in line with the VCLT.
5. Crossing borders to identify better solutions
IRL and IHRL are often viewed as complementary international legal regimes. For some, these are
‘so intimately interdependent and imbricated that it is now virtually impossible to separate one
from the other’.
98
This is especially true in light of the fact that IHRL has progressively become
instrumental in reaching a ‘dynamic understanding’ of refugee law, in particular of the refugee
notion, to reflect the evolution of today’s international society.
Yet, as this contribution has argued by taking the example of people fleeing homophobia, there
are still some inconsistencies – or even confusion – in this ongoing relationship. The cross-
fertilisation between these two branches of international law is incomplete, as the European and
national developments outlined here show. The role of IHRL should not be mainly limited to the
identification of people fleeing homophobia as a group of ‘vulnerable’ claimants and to the
imposition of specific positive obligations, including procedural ones, on relevant States.
First, IHRL may prove effective in raising duties of due diligence by adopting an impact-based
model for evaluating the decisions of refusal of entry to receiving States in human rights terms. In
fact, in absence of similar obligations under IRL, it may require relevant States to prevent life-
threating experiences and torture or other prohibited ill-treatment for the prevention of violations
95. Commission, ‘Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe’,
6 April 2016.
96. See Dudgeon v UK App no 7525/76 (ECtHR, 22 October 1981) para 63.
97. See Danisi (n 12) 298-300, in relation to the possibility to use Article 3 ECHR (in terms of degrading treatment), alone
or in conjunction with non-discrimination (Art. 14 ECHR), against the restriction of public recognition for same-sex
couples through marriage.
98. Chetail (n 46) 68.
376 Netherlands Quarterly of Human Rights 37(4)
that SOGI asylum claimants may suffer in attempting to access asylum determination procedures.
This reasoning certainly applies where there are ‘substantial grounds’ for believing that this kind of
treatment has taken or will take place, as seems to happen in the case of this group of claimants
(and potentially all groups of people claiming asylum identified as ‘vulnerable’ under IHRL).
Second, IHRL may inform the understanding of the notion of persecution more comprehen-
sively than it currently does in practice. Denials or restrictions in the enjoyment of human rights
may indeed provide a parameter against which decision-makers can verify how the perpetrator and
the home country’s society impose on sexual minorities an inner modification of the self. In doing
so, developments in IHRL clarify that the intersection with IRL cannot lead to creating borders
between different human rights violations. Instead, considering the increasingly inclusive reading
provided by human rights bodies so far as sexual orientation and its expression is concerned, IHRL
can support decision-makers in understanding what life experiences really matter to people fleeing
homophobia and, in turn, identifying those that generate a fear of persecution. This is currently far
from being the case. Despite the recommendations made by the UNHCR, European and national
decision-makers still focus their attention on certain rights and freedoms, rather than assessing the
overall effect of their denial or restrictions on the individual in creating the conditions for a well-
founded fear of persecution. The possible underlying and subtle prejudice based on the idea that
people belonging to sexual minorities enjoy ’less’ rights should therefore be fought.
By looking at the underlying ‘territorial’ and ‘normative’ borders that seem to prevent such
developments, this article has tried to contrast two debatable, but still widespread, assumptions.
First, there is an assumption that IHRL cannot fill the gaps drawn up at the origins of IRL in
protecting refugees worldwide and vice versa. Second, despite the most recent evolution of the
IHRL, a belief in the private nature of sexual orientation is still deeply rooted in decision-makers’
thinking. If these territorial and normative borders were to be crossed, not only would people
claiming asylum benefit, but there might also be unlooked for enhancements in the rights of sexual
minorities who are residents of receiving countries. In fact, IRL may become instrumental in
instilling in decision-makers a common understanding of the harm suffered by sexual minorities
when they do not enjoy the wide catalogue of human rights because of their sexual orientation. In
doing so, it would consequently contribute to the evolution of IHRL.
Author note
This contribution has been produced within the context of the project SOGICA – Sexual Orientation and
Gender Identity Claims of Asylum: A European human rights challenge.
Acknowledgements
The author wishes to thank the anonymous referees for their insightful comments, as well as prof. N. Ferreira
and dr. M. Dustin for their valuable suggestions. All errors remain mine.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publi-
cation of this article.
Danisi 377
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication
of this article: Author received financial support for the research underlying this article within the context of
the project SOGICA – Sexual Orientation and Gender Identity Claims of Asylum: A European human rights
challenge. This project has rec eived funding from the European Research C ouncil under the European
Union’s Horizon 2020 research and innovation programme (Grant Agreement No. 677693).
378 Netherlands Quarterly of Human Rights 37(4)
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