Do the Challenges of LGBTQ Asylum Applicants Under Dublin Register With the European Court of Human Rights?
| Author | Raoul Wieland,Edward J Alessi |
| Published date | 01 June 2021 |
| Date | 01 June 2021 |
| DOI | http://doi.org/10.1177/0964663920946360 |
| Subject Matter | Articles |
Article
Do the Challenges of LGBTQ
Asylum Applicants Under
Dublin Register With
the European Court of
Human Rights?
Raoul Wieland
McGill University School of Social Work, Canada
Edward J Alessi
Rutgers School of Social Work, USA
Abstract
Evidence suggests that Europe’s Dublin Regulation is increasing the precarity of lesbian,
gay, bisexual, transgender, and queer (LGBTQ) asylum applicants. Dublin allocates
responsibility for examining asylum claims between EU Member States. The European
Court of Human Rights (ECtHR) guides the obligations of States under Dublin.
Increasingly, the ECtHR draws on the concept of vulnerability to frame the experiences
of asylum seekers. Vulnerability purportedly functions for the ECtHR as a lens through
which the harm experienced by asylum applicants is magnified, enabling it to better
recognize human rights violations. Nevertheless, the ECtHR’s vulnerability lens may be
distorted by hetero- and cisgender normativity. We explore some implications of the
ECtHR’s assumptions for how the vulnerabilities of LGBTQ asylum seekers in Europe
under Dublin register with the ECtHR. We suggest that the combined frameworks of
intersectional invisibility and layers of vulnerability can improve the ECtHR’s capacity to
understand how LGBTQ asylum applicants may be particularly vulnerable under Dublin.
Keywords
Asylum seekers and refugees, Dublin Regulation, LGBTQ, queer migration
Corresponding author:
Raoul Wieland, McGill University School of Social Work, 3506 Rue University #300, Montr´
eal, Canada
QC H3A 2A7.
Email: raoul.wieland@mail.mcgill.ca
Social & Legal Studies
2021, Vol. 30(3) 405–425
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663920946360
journals.sagepub.com/home/sls
In 2015, an unprecedented 1.3 million refugees fled to Europe, resulting in one of the
biggest humanitarian crises of the early 21st century (Connor, 2016). Although official
numbers do not exist, reports suggest that a significant number of people fleeing perse-
cution and seeking asylum in Europe identify as lesbian, gay, bisexual, transgender, and
queer (hereafter LGBTQ) (FRA, 2017). Similar to other refugee groups, LGBTQ refu-
gees may seek protection and safety from war and political strife (Alessi et al., 2018).
Additionally, LGBTQ people are increasingly migrating to Europe to seek protection
from persecution based on their sexual orientation and gender identity. Nearly 70 coun-
tries continue to criminalize same-sex sexual behaviours, and in many others, where
same-sex activity is not criminalized, LGBTQ individuals are routinely subjected to
hostile living conditions (Mendos and ILGA, 2019). The stigma and discrimination that
LGBTQ individuals experience before, during, and after migration therefore makes them
particularly vulnerable to traumatizing events (e.g. abuse by family members, physical
and sexual assault), marginalization, and invisibility (Alessi et al., 2017; Spijkerboer,
2013).
In this paper, we explore how the emerging vulnerability framework (Peroni and
Timmer, 2013) of the European Court of Human Rights (hereafter the Court) may fail
to substantively uphold the human rights of LGBTQ asylum seekers. More specifically,
insufficient understanding of the particular vulnerabilities of LGBTQ asylum seekers
may wittingly or unwittingly in crease their exposure to stigma tization and violence
under fundamental EU asylum laws such as the Dublin Regulation (Alessi et al.,
2020). Commonly referred to as Dublin, this regulation (Council Regulation [EC] No
604/2013) attempts to hold EU Member States (hereafter State/s) accountable for their
human rights and international refugee law commitments when deciding whether asylum
claimants can safely be sent back to the State of first entry (Maiani, 2016). However,
evidence suggests that Dublin is increasing the precarity of LGBTQ asylum seekers
(Alessi et al., 2020), reflecting overlap with often problematic State practices in the
interpretation and application of asylum law with respect to LGBTQ applicants (Akin,
2017; ECRE, 2017a; Giametta, 2018; Hertoghs and Schinkel, 2018; Wessels, 2017).
We begin this paper by discussing the benefits and challenges of using the vulner-
ability framework in human rights law. As part of this discussion, we examine a selection
of leading cases, M.S.S. v. Belgium and Greece (2011) and Tarakhel v. Switzerland
(2014), to outline the Court’s vulnerability approach with respect to asylum seekers.
While these two cases did not involve LGBTQ asylum seekers, we nevertheless consider
them first, as they are central to the Court’s emerging vulnerability discourse and will
undoubtedly impact how the vulnerabilities of LGBTQ applicants are framed in the
future. Next, in an attempt to queer the migration discourse (Luibh´eid, 2008), we high-
light the ways in which the Court failed to properly account for LGBTQ asylum seekers’
layered vulnerability by drawing on non-Dublin cases and then explore some of the
implications for LGBTQ asylum seekers under Dublin specifically. We conclude by
arguing that an intersectional and layered vulnerability framework offers a nuanced
approach that the Court can rely on to better account for LGBTQ asylum seekers’
complex experiences of vulnerability under Dublin. We briefly consider the case of
O.M. v. Hungary (2016) from an intersectional lens since it was the first LGBTQ asylum
case, albeit without Dublin involvement, in which the Court recognized some of the
406 Social & Legal Studies 30(3)
To continue reading
Request your trial