- 14 -

German Bundestag Printed paper 17/8357

17th electoral term

Answer

of the Federal Government

to the Minor Interpellation tabled by the Member of the Bundestag Ulla Jelpke, further Members of the Bundestag and the Left Party parliamentary group

Treatment of homosexual refugees and the restriction of sexual diversity under asylum law

– Bundestag printed paper 17/8228 –

Preliminary remarks of the questioners

With a Minor Interpellation (Bundestag printed paper 16/2142) tabled in the previous electoral term, the Left Party parliamentary group had already drawn attention to the scandalous treatment of homosexual refugees by authorities and courts. Although the human and civil rights of lesbian, gay, bisexual, transgender, transsexual and intersex (LGBTTI) people and their rights to free development of their personality and sexual self-determination are massively violated in many countries, these persons are often denied recognition in Germany as refugees in need of protection.

One of the reasons for this is a judgment of the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG) dating from 1988 (9 C 278/86), to which administrative courts still refer today and pursuant to which only "irreversible" homosexuality in the sense of an "inescapable, predestined commitment to homosexual behaviour" was deemed relevant in the context of asylum law. In addition, the Court held, impending punishment must appear "unbearably severe" and "unreasonable under every conceivable aspect". The object of "the existing prohibition of consensual homosexual activity between adults in Iran", by contrast, was " to uphold public morality", as had similarly been the case in Germany up until 1969. Moreover, the Court continued, in a judgment dated 22 October 1981 the European Court of Human Rights (ECHR) had also held that "some degree of regulation of male homosexual conduct" within the meaning of Article 8 paragraph 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms could be "necessary in a democratic society" for the protection of morals. A quarter of a century later, however, in a judgment dated 29 August 2005 (A 6 K 30060/03, p.12), the Leipzig Administrative Court (Verwaltungsgericht, VG) noted in this regard that the case law of the ECHR was to be interpreted "in the context of its time and subject to the further development of the domestic law of the states applying European law"; inthat specific case asylum was nevertheless denied because "in many cases homosexuals can hence live according to their orientation, at least in secret". In other court judgments as well, intended deportations of homosexual refugees have been and continue to be justified on the grounds that the persons concerned could "keep a low profile" in their country of origin in order to escape the threat of persecution.

Since the entry into force of the EU "Qualification Directive" (2004/83/EC of 29 April 2004) in October 2006, such grounds for denial are in fact no longer tenable. For in Article 10 paragraph 1, letter (d) of the Directive, sexual orientation is explicitly mentioned as a characteristic that can give rise to persecution ("depending on the circumstances in the country of origin"), and pursuant to Article 9 paragraph 2 of the Directive, any discriminatory "legal, administrative, police, and/or judicial measures" and any discriminatory "prosecution or punishment" constitute persecution to be taken into account if, for instance, it is directed against the sexual orientation of the persons concerned.

Nevertheless, time and again judgments denying asylum are rendered on highly dubious grounds: In a judgment dated 11 April 2011 (Au 6 K 09.30189), for instance, the Augsburg Administrative Court found against a (by his own account – disputed by the court –) gay refugee from Syria, holding that the criminal prohibition of homosexual intercourse in Syria (penalty of up to three years imprisonment) was not directed against "a certain sexual orientation as such" but merely criminalised "certain sexual practices in order to protect public morals," "so for that reason alone the character of persecution is to be negated". And, the Court continued: "The threatened penalty of up to three years imprisonment also cannot be termed inhuman punishment", for there is no threat of "severe corporal punishment or the death penalty". To the person concerned, who had claimed to have been arrested and detained for 43 months for homosexual contact with a soldier during his time in the military, the court countered that "the Syrian state does not tolerate the homosexual activities specified by the plaintiff in its armed forces for security reasons and must therefore also be in a position to put a stop to these if necessary, as it did in the case of the plaintiff." In the "private sphere", on the other hand, the person concerned could live as a homosexual, even if this led to discrimination by relatives – which, however, was irrelevant for the purposes of asylum law.

In a judgment dated 7 October 2011 (RN 5 K 11.30261), the Regensburg Administrative Court held that since the entry into force of the Qualification Directive an"inescapability" of homosexuality was admittedly no longer the crucial factor. However, the Court stated, it was "not the function of German asylum law to enforce the Federal Republic of Germany’s system of basic rights in other states". Moreover, the"pressure to behave in accordance with the moral beliefs prevailing in Nigeria does not constitute asylum-relevant political persecution for those who bow to it". The person concerned had to accept the "in our view unacceptable circumstances" in Nigeria. It could "reasonably be expected" of the person concerned "that he not let his homosexual orientation and activities become openly known but instead limit them to his most private sphere".

In a judgment dated 15 June 2011 (M 25 K 10.31238), the Munich Administrative Court informed a lesbian asylum-seeker that "discreet engagement in homosexual practices" would "not result in reprisals". While there was indisputably "a homophobic climate" inUganda, the Court stated, parliamentary efforts to introduce the death penalty for "serious homosexuality" had not been further pursued and the possible sentence of life imprisonment for homosexuality was not applied in practice.

The Higher Administrative Court (Oberverwaltungsgericht, OVerwG) of North Rhine-Westphalia, in an order dated 23 November 2010 (13 A 1013/09.A), lodged a reference for a preliminary ruling from the European Court of Justice (ECJ) on the questions of whether it was compatible with the EU Qualification Directive to tell a homosexual refugee to "live with his or her sexual orientation in his or her home country in secret and not allow it become known to others" and to what extent "specific prohibitions for the protection of public order and morals" were "relevant when interpreting and applying" the Directive. Effective as of 15 February 2011, this order referring the questions to the ECJ was rescinded after the person concerned was granted refugee status because the Court had referred to him by name on its website and thus made his homosexuality public.

This point of European law could, however, find clarification insofar as the Federal Administrative Court, by order of 9 December 2010 (10 C 19/09), also referred questions to the ECJ as to whether it was compatible with European law to require asylum-seekers to refrain from practicing their faith in public in order to avoid persecution. The Federal Administrative Court pointed out that in contrast to German case law, the British Supreme Court, in a judgment dated 7 July 2010, had ruled that homosexuals could not be required to "discreetly practice" their sexual orientation.

Both Pro Asyl and the Lesbian and Gay Federation in Germany have criticiseised the treatment of homosexual refugees (http://www.lsvd.de/852.98.html), the aforementioned decisions, and the country reports of the Federal Foreign Office, which tend to downplay the situation. The Lesbian and Gay Federation furthermore deplores assessments deeming subsequently disclosed homosexuality to be an implausible submission, excessive requirements for the credible establishment of ("irreversible") homosexuality (such as production of expert opinions at the applicant’s own expense), and the dismissal of a "coming out" in the country of asylum as a "self-created post-flight reason".

This criticism is scientifically backed up by a recent comparative study of asylum practice in Europe ("Fleeing Homophobia", http://www.rechten.vu.nl/nl/Images/Fleeing%20Homophobia%20report%20EN_tcm22-232205.pdf). Requiring the persons concerned to conceal their sexual orientation in their country of origin, the study concluded, negated the fundamental character of their human rights, and respect for human rights was simply indispensable. Most of the recommendations of this study (p. 11) have not been implemented in German asylum practice.

1. In which countries is homosexuality currently a punishable offence or are the human rights of bisexual, transsexual, intersex or transgender people violated by the threat of punishment for certain sexual behaviour (please specify: what term of imprisonment – or even the death penalty – for which "offence"); irrespective of the issue of such punishability, in which countries – in practice or according to the internal guidelines of the Federal Office for Migration and Refugees (BAMF) – is persecution of or discrimination against homosexuals presumed; and in respect of which countries – in practice or according to BAMF internal guidelines – is protected status or subsidiary protection consequently already granted on these grounds alone (i.e. irrespective of the reasons submitted in an individual case) insofar as an asserted homosexuality is held to be genuine, as is the practice in Italy, for instance, in cases where homosexuality has been criminalised in the country of origin?

Re 1.

The Federal Government has no exhaustive overview covering all the countries of the Earth as to the punishability of homosexuality or of sexual orientation deviating from a defined norm. Given the constantly changing legislation and case law of the courts, any such overview could only be snapshot of the situation at a particular moment in time and, moreover, would fail to do justice to the discrepancy prevailing in many countries between the laws on the books and the actual treatment of sexual orientation/gender identity in daily life.

At least once a year, the Federal Foreign Office compiles reports on the asylum- and expulsion-relevant situation in the main countries of origin of asylum applicants. Each of these reports also includes information on gender-specific persecution as well as any punishment of homosexual acts by the death penalty or imprisonment. The reports are classified documents; specific information from them consequently cannot be reproduced here. Members of the German Bundestag may, however, inspect all country reports at the library of the Committee on Human Rights and Humanitarian Aid.

In addition, the German embassies report on the situation of lesbian, gay, bisexual, transgender, transsexual and intersex (LGBTTI) people on a regular basis and as current events may require.

The biennial report of the Federal Government on its human rights policy, most recently the 9th report covering the period from 1 March 2008 to 28 February 2010, likewise regularly addresses topics relating to persecution of LGBTTI persons.

Insofar as sexual orientation has been presented as grounds for persecution in asylum proceedings before the Federal Office for Migration and Refugees (BAMF), an assessment is carried out on an individual basis in accordance with Article 4, paragraph 3, of Directive 2004/83/EC (Qualification Directive), taking into account relevant facts relating to the country of origin that are already available or have been gleaned from research on the case in question.

2. In how many cases was the threat of persecution on the basis of homosexuality or other restrictions of the sexual diversity of LGBTTI people cited by asylum-seekers in asylum proceedings in 2010 and 2011 (please list by gender and country of origin) and how many of these persons qualified for protection on these grounds (please differentiate according to protection status; in the event that the BAMF still does not have the corresponding data, please at least give an estimate)?

Re 2.

The BAMF does not compile statistics on the grounds for asylum cited by applicants. According to the BAMF, a well-founded fear of persecution due to sexual orientation is rather rarely claimed and credibly established in asylum proceedings.

3. To what extent and with what justification does the BAMF – in practice or according to internal guidelines –, even after the entry into force of the Qualification Directive, continue to adhere to the legal opinion that

a)  it can reasonably be expected that homosexuality be practiced privately or covertly in order to avoid the threat of persecution – and which corresponding principles currently apply in regard to religious convictions or practices?

b)  a particular severity of the feared persecution due to homosexuality is necessary?

c)  measures and sanctions to enforce a standard of purportedly "permissible" sexuality under the term "public morals" are not in themselves relevant in the context of asylum law?

d)  an "irreversibility" of homosexual "disposition" or a sexual identity deviating from physical gender must be proven or credibly established?

(Please give answers by subpoint and in the context of the Qualification Directive, the relevant literature and the decisions referred to the ECJ for a preliminary ruling that were mentioned in the preliminary remarks as well as relevant internal rules and guidelines to be observed by authorities in practice.)

Re 3.

a)

In the event of credibly established homosexuality, the BAMF determines within the framework of a predictive decision whether discovery of such homosexuality in the country of origin is relevantly probable and whether the person concerned must therefore reckon with asylum-relevant persecution. Comparable principles apply to religious convictions or practices.

b)

The assessment of the severity of impending persecution is made in accordance with Article 9 of the Qualification Directive. Pursuant hereto, especially severe violations of basic human rights are deemed to constitute persecution.

c)

Reference is made to the answer to Question 3 b).

d)

The applicant for asylum must credibly establish that the well-founded fear of persecution follows from his or her actual or alleged homosexuality. The irreversibility of such homosexuality is irrelevant in the context of application of the Qualification Directive.

4. Insofar as applicants for asylum are still required to credibly establish the "irreversibility" of their homosexuality or even "substantiate" it with sexological expert opinions (see the article "Tödliche Küsse" ["Deadly Kisses"] in the Süddeutsche Zeitung of 16 January 2009),