Abstract
This chapter explores Irish law and policy in respect of lesbian, gay, bisexual, trans, intersex (LGBTI) asylum claims. It investigates the outcomes of LGBTI claims, specifically looking at the growing body of case law within the last 10 or so years from the Irish High Court on the assessment of core elements of asylum claims based on sexual orientation and gender identity such as State protection, persecution, credibility and the assessment of risk on return. Twenty High Court decisions between the years 2006 and 2017 are analysed, in the first instance to determine the extent to which these decisions are compatible with international best practice guidelines. Secondly, the case law is analysed with reference to the impact of the concepts of fair procedures and constitutional justice on the outcome of LGBTI claims, in order to offer guidance to decision makers in the assessment of such claims, and to further inform the ongoing trans-judicial dialogue on the correct approach to assessment of asylum claims based on sexual orientation and gender identity.
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Notes
- 1.
Between 1996 and 2015, the procedures under the Refugee Act 1996 were as follows: the first instance decision on asylum applications was made by the Office of the Refugee Applications Commissioner (ORAC), with a right of appeal against refusals of asylum to the Refugee Appeals Tribunal (RAT). Since 1 January 2016, the procedures under the International Protection Act 2015 now provide that the first instance decision is taken by the International Protection Office (IPO), with a right of appeal against refusals to the International Protection Appeals Tribunal (IPAT). A decision of any of these administrative bodies can be the subject of judicial review by the High Court to assess the lawfulness of the decision.
- 2.
See, e.g., Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155.
- 3.
Fair procedures relate generally to a duty to act fairly, arising from the common law principle of natural justice which provides that administrative bodies allow a person affected by a decision to be heard before it is made and for decision makers to ensure that personal interests and bias do not influence the decision.
- 4.
Constitutional justice can be considered to be linked to fair procedures, but is also generally considered to be a constitutional entitlement to fairness in its own right, extending to, for example, the right to be given reasons for a decision and the right to an administrative appeal against certain types of decision.
- 5.
Which provides specialist query and research services to the Legal Aid Board, and solicitors and barristers on the panel for the Board, who act on behalf of applicants seeking asylum.
- 6.
The State body responsible for the procurement and overall administration of State provided accommodation and services to applicants for international protection.
- 7.
Grounded theory approach is the construction of a theory by gathering and analysing data, in this instance, case law.
- 8.
It is beyond the scope of this chapter to analyse the reasons for this change.
- 9.
By the Criminal Law (Sexual Offences) Act 1993, Section 2, which was instigated as a result of the decision of the European Court of Human Rights in Norris v. Ireland, [1988].
- 10.
The Thirty Fourth Amendment to the Constitution (which provides that marriage may be contracted by two persons without distinction as to their sex) was approved by a referendum on 22 May 2015.
- 11.
This issue is also dealt with in the Court of Justice of the European Union (CJEU) case X, Y and Z v Minister for Immigratie, Integratieen Ariel, Joined Cases C-199/12, C/201/12. The International Commission of Jurists criticised the court’s restrictive reading of the Qualification Directive in this case, arguing that the court ignored the persecutory effects of criminalising same-sex orientation or gender identity, including rogue enforcement and lack of State protection against persecution where non-State actors are the perpetrators (See International Commission of Jurists 2014).
- 12.
However, it should be noted that the duty to make a finding in respect of a core issue such as sexual orientation is not absolute; thus, in AK v. Refugee Appeals Tribunal, [2014] the court refused to grant leave to seek judicial review on this ground in circumstances where the personal credibility of the applicant was “fundamentally and totally rejected” by the decision maker, and Mac Eochaidh J was satisfied that there was no duty to make a specific, separate finding on whether or not he was gay.
- 13.
The applicant cited, in particular, two reports published by the Immigration and Refugee Board of Canada, “Georgia: Update 2GGA32976E of 7 October 1999, on the situation of homosexuals (24 November, 2004), and “Georgia: Situation of Homosexuals including Societal Attitudes and Availability of State Protection” (27 May 2008).
- 14.
In this respect, it may be the case that Irish law is following the pathway “from discretion to disbelief” identified by Millbank (2009).
- 15.
Thomas Reuters Foundation/Cormac O’Brien. (28 June 2017). LGBT asylum seekers face hurdles seeking ‘dream life’ in Ireland. Irish Times.
References
Arnold, S. (2012). The culture of credibility in the United Kingdom and Ireland and the sexual minority refugee. Irish Law Times, 30, 55–60.
BeLonG To. (2012). Key principles for working with LGBT asylum seekers and refugees. Dublin:BeLonG To.
Collins, B. (2015). Discrimination or persecution? A focus on LGBT applicants for asylum. The Researcher, 10(2), 20–25.
Conlan, S., Waters, S., & Berg, K. (2012). Difficult to believe: The assessment of asylum claims in Ireland. Dublin: Irish Refugee Council.
de Blacam, M. (2017). Judicial review (3rd ed.). London: Bloomsbury.
Hogan, G., & Morgan, D. G. (2010). Administrative law in Ireland (4th ed.). Dublin: Round Hall.
International Commission of Jurists. (2014). X, Y and Z: a glass half full for “rainbow refugees”: The International Commission of Jurists’ observations on the judgment of the Court of Justice of the European Union in X, Y and Z v. Minister voor Immigratieen Asiel. Brussels: ICJ.
Jansen, S., & Spijkerboer, T. (2011). Fleeing homophobia: seeking safety in Europe. Amsterdam: COC Nederland & VU University Amsterdam.
Lambert, H., & Goodwin-Gill, G. (Eds.). (2010). The limits of transnational dialogue: Refugee law, policy harmonisation and judicial dialogue in the European Union. Cambridge: Cambridge University Press.
McMahon Report. (2015). Working group to report to the government on improvements to the protection process, including direct provision and supports to asylum seekers. Dublin: Department of Justice and Equality.
Millbank, J. (2009). From discretion to disbelief: Recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom. International Journal of Human Rights, 13(2/3), 391–414.
O’Connor, C. (2003a). Asylum on grounds of sexual orientation—Shah and Islam paving the way for refugee recognition: Part I. Irish Law Times, 21, 44–48.
O’Connor, C. (2003b). Asylum on grounds of sexual orientation—Shah and Islam paving the way for refugee recognition: Part II. Irish Law Times, 21, 56–60.
O’Connor, C. (2003c). Asylum on grounds of sexual orientation—Shah and Islam paving the way for refugee recognition: Part III. Irish Law Times, 21, 70–73.
Sarsfield Collins, L. (2017). Safe spaces: The law and everyday experiences of LGBTQ asylum seekers. NPPSH Reflections, 1, 66–77.
UNHCR. (2008). Guidance note on refugee claims relating to sexual orientation and gender identity. Geneva: UNHCR.
UNHCR. (2011). Handbook and guidelines in procedures and criteria for determining refugee status. Geneva: UNHCR.
Irish Case Law
A v. Minister for Justice [2009] IEHC 281.
AF (Nigeria) v. Refugee Appeals Tribunal [2016] IEHC 430.
AMT v. Refugee Appeals Tribunal [2004] 2 IR 607.
AP v. Refugee Appeals Tribunal [2013] IEHC 448.
Banzuzi v. Refugee Appeals Tribunal [2007] IEHC 2.
Bujari v. Refugee Appeals Tribunal [2003] IEHC 18.
Carciu v. Refugee Appeals Tribunal [2003] IEHC 41.
CC v. Refugee Appeals Tribunal [2014] IEHC 491.
Da Silveira v. Refugee Appeals Tribunal [2004] IEHC 436.
DK v. Refugee Appeals Tribunal [2006] IEHC 132; [2006] 3 I.R. 368
E v. Minister for Justice [2008] IEHC 137.
E v. Refugee Appeals Tribunal [2011] IEHC 149.
EPA v. Refugee Appeals Tribunal [2013] IEHC 85.
ETK v. Refugee Appeals Tribunal [2016] IEHC 275.
Idiakheua v. Refugee Appeals Tribunal [2005] IEHC 150.
Imafu v. Refugee Appeals Tribunal [2005] IEHC 416.
IR v. Refugee Appeals Tribunal [2009] IEHC 353.
MA (Nigeria) v. Refugee Appeals Tribunal [2016] IEHC 16.
MA v. Minister for Justice, Equality and Law Reform [2010] IEHC 519.
MCA v. Refugee Appeals Tribunal [2014] IEHC 504.
OPE v. Refugee Appeals Tribunal [2015] IEHC 748.
PD v. Minister for Justice and Law Reform [2015] IEHC 111.
PD v. Refugee Appeals Tribunal [2017] IEHC 56.
PS v. Refugee Appeals Tribunal [2016] IEHC 398.
SA (Algeria) v. Minister for Justice, Equality and Law Reform [2012] IEHC 78.
SQ v. Refugee Appeals Tribunal [2013] IEHC 94.
ZK v. Refugee Appeals Tribunal [2014] IEHC 543.
EU Case Law
A, B & C v Staatssecretaris Joined Cases C-148/13, 149/13 and 150/13, Court of Justice of the European Union, 2 December 2014.
(C-199/12, C-200/12 & C-201/12) X, Y, Z v MinisterVoorImmigratie en Asiel, 2 C.M.L.R. 16 [2014].
UK Case Law
HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] UKSC 31.
Irish Legislation
Refugee Act 1996, as amended.
Criminal Law (Sexual Offences) Act 1993
Employment Equality Acts 1998-2015
Equal Status Acts 2000-2004
Employment Equality (Amendment) Act 2015
International Protection Act 2015
EU Legislation
Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.
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Brazil, P., Arnold, S. (2019). LGBTI Asylum Applications in Ireland: Status Determination and Barriers to Protection. In: Güler, A., Shevtsova, M., Venturi, D. (eds) LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective. Springer, Cham. https://doi.org/10.1007/978-3-319-91905-8_8
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