Europe Is Telling Gay Asylum Seekers They Are Not Gay Enough

Europe

At the end of 2016 in Istanbul, 26-year-old Sercan Özmeral’s parents tried to force him to marry. It was at this moment that Özmeral, who is gay, realized he would have to come out. His parents did not take it well.

“They responded in a very aggressive way, and my father and uncles threatened to kill me,” he said.

Turkey, where Özmeral is from, has become less and less friendly to the LGBTQ community, especially in the last few years. He considers the Kurdish community, of which he is a part, even less tolerant.

“About ten years ago, a friend of mine was killed by his father after coming out,” he said, referencing the case of Ahmet Yildiz, a young Kurdish man whose 2008 murder in Istanbul is sometimes referred to as the country’s first gay honor killing.

Soon after, Özmeral fled to the Netherlands, a country famous for its LGBTQ acceptance, and one he had visited before.

But what he found when he arrived was not what he expected. In fact, his arrival marked the beginning of a drawn-out process in which officials from the Dutch Immigration and Naturalisation Service (IND) asked him probing questions about his life as a gay man. After months of waiting, he was denied asylum on the grounds that the IND did not believe he was gay.

Özmeral’s case is but one example of a daunting problem in the Netherlands, where hundreds of people apply for asylum each year on the grounds that they’re persecuted for their LGBTQ status. But immigration attorneys and advocacy groups question the way the IND determines if an applicant’s claim is credible.

At the time Özmeral applied, his case hinged upon his ability to convincingly recount a story of becoming “self-aware” and “accepting” of his sexual orientation, effectively forcing him and other applicants to conform to a Western template of a coming-out narrative. But “coming out,” as it is commonly understood in Europe and North America, is a highly distinct cultural conception that doesn’t map neatly onto a variety of queer experiences.

“Other countries don’t have the same phenomenon to reflect on themselves like this,” said Brian Lit, a Dutch immigration attorney. “It’s not normal for someone, say in Western Africa. I’m missing that realization from the IND.”

Last summer, after a public outcry, the IND updated its guidelines, and said it would stop this line of questioning and replace it with a search for an “authentic story” from applicants that would prove their claim. But immigration attorneys say that little has changed in practice, and the revised guidelines are vague.

“[The IND’s] focus is no longer on these processes by name, but they still want to hear a story about a process of awareness and self-acceptance,” said Eric Hagenaars, an immigration attorney who has represented hundreds of gay asylum seekers in the Netherlands.

Philip, an LGBTQ asylum seeker from Uganda whose name has been changed for his safety, underwent the process this past March of last year. Even though he did the interview after the IND issued the revised guidelines, the questions the officer asked Philip followed the old approach.

“They exactly ask you about awareness and acceptance of your sexual orientation,” Philip said. These were hard questions for him to answer. “In my culture, you cannot just talk about your love life like that.”

Two appeals later, the IND now recognizes that Özmeral is gay. This past summer, though, the authorities ruled that living in Turkey does not pose a threat serious enough to give him asylum. Özmeral then filed yet another appeal with the help of a new attorney.

In late November of 2019, Özmeral and his lawyer were shocked when the Dutch government informed them that it had thrown out his most recent denial, saying, without explanation, that it would issue a new ruling. On January 2, the IND ruled in Özmeral’s favor, saying that it now believed that living in Turkey would pose a serious threat to Özmeral.

The ruling ended a years-long process filled with misdirection and seeming caprice. Since arriving in the Netherlands, Özmeral has spent most of his time in a refugee camp. He did, however, spend a month in a Rotterdam prison because he passed the IND’s window to apply for asylum—by nine days.

The uncertainty weighed on him. Last fall, before the positive decision from the Dutch government, Özmeral described the hardship of the process: “I feel so bad. I am a helpless person, and unfortunately, the Netherlands is leaving me to die instead of helping me.” Now, with his Dutch residency in hand, his outlook is much more positive.

“I still can’t believe this decision because I’ve been waiting so long, almost three years. I am very happy now, and I feel safe,” Özmeral said just hours after the IND issued its decision.

In a statement, an IND spokesperson did not respond directly to questions about its asylum practices.

Processing asylum applications for people in the LGBTQ community has been a struggle in Europe for many years, even before the refugee crisis.

This challenge has led to many unfortunate cases over the last few years, including one in the Hague in 2017, where an Iraqi refugee was denied asylum and told by the judge he was “not gay enough.” Similar cases have taken place in Austria, where immigration officials once denied an applicant on the grounds that “neither your walk, your behavior, nor your clothing indicate even in the slightest that you could be homosexual.”

European law on the subject has long been complicated. According to Sabine Jansen, a Dutch lawyer from the non-profit COC Nederland who studies LGBTQ asylum policy and practice, prior 2011, many European countries simply advised LGBTQ asylum seekers from countries where homosexuality is criminalized to conceal their sexual identity.

It was that year that Jansen gathered experts from 25 countries and produced a report called Fleeing Homophobia. In the period that followed, the Dutch Council of State referred two sets of questions to the Court of Justice of the European Union (CJEU), asking about how to deal with gay asylum seekers—questions meant to highlight the injustice and unfeasibility of requesting gay asylum seekers to simply “tone it down” back home. In response, the CJEU issued two judgments that defined Europe’s modern LGBTQ asylum policy: XYZ versus the Netherlands, on criminalization of same-sex sexual orientation and ‘discretion’ in expressing sexual orientation or gender identity (2013) and one year later ABC versus the Netherlands, on credibility of sexual orientation (2014).

Still, Europe has a patchwork of unharmonized policies for determining the legitimacy of a person’s claim.

In the intervening years, and as LGBTQ asylum seekers arrived in Europe in larger numbers, at least two European Union countries used arousal tests to determine if an applicant’s case was legitimate. These tests were outlawed in 2014. In January of 2018, the European Court of Justice—which is under the umbrella of the CJEU—banned Rorschach tests for asylum seekers after a Nigerian man sued the Hungarian Immigration Office.

Jansen thinks that in the past 10 years, policy has shifted from “discretion” to “disbelief,” that is, the old policy of telling gay applicants to go home and simply be discreet has been supplanted by a tendency to simply not believe applicants. Jansen doesn’t think IND agents are all homophobic. She says the problem comes from the guidelines, which are full of stereotypes.

“The most common stereotype is to believe that these people are ashamed about themselves,” she says.

It is difficult to pin down an exact source for the IND’s approach to handling LGBTQ asylum cases. But a 2004 article written by Canadian researcher Nicole LaViolette seems to have inspired current IND practice. Asylum researcher Sabine Jansen’s “Pride or Shame” argues that the IND’s interpretation of LaViolette’s work lacks nuance, and should not be grounds for policy.

When the IND issued revised guidelines on how applicants should be questioned, Dutch lawyers and advocates hoped that this would mean applicants who were denied before would be eligible to reapply. But the IND has rejected this.

“From the legal perspective, this is a change of policy, and so prior denials could be opened to a new review, but they denied this, saying it’s the same policy that they simply fine-tuned,” said Brian Lit, the immigration attorney.

This means that the hundreds of applicants currently appealing their denials are unable to simply reapply under the current guidelines.

Issa, who is from Iraq and whose name has been changed to protect his safety, is one of those applicants. He was denied in 2017 on the grounds that while the IND believed he is gay, they didn’t think life in Iraq posed any serious threats to him. Issa says he fears violence from his family if he returns home.

Issa did the asylum interview in Arabic through a translator, which posed another problem: He didn’t feel comfortable discussing his homosexuality with a Muslim. “They asked me, are you on top or on bottom or something else? How can I explain this thing to a translator?” According to Issa, the translator struggled with the questions the IND posed and with Issa’s responses. “I felt the shame from the translator. He was looking at me and with his looks he was saying shame on you. Shame. I could feel it. I cried a lot after the interview.”

Issa is in a state of limbo. He has appealed again, but a long-term life in a refugee camp is taking a toll.

“To be honest with you, every day I spend in my room, and I do not know what is my fate. I think of suicide, but I do not have the courage to end this moment,” Issa said.

Sandro Kortekaas, the chairman of LGBT Asylum Support, an NGO that helps LGBTQ refugees in their asylum process in the Netherlands, says the revised guidelines that call for an authentic story do represent an improvement—that is, when IND officials stick to them.

But he wants to see a much bigger reform. “We want the IND to admit that it made a mistake with the old interview questions and give all the people who were rejected by it a second chance.”

For now, major reform seems unlikely. Attorney Brian Lit still prepares his clients to answer the old questions: “I still drill them on their process of awareness. If you convince them on a process of awareness that’s the easiest way, as no one knows what the ‘authentic story’ means.”

According to the COC, the IND rejects four in 10 applications for asylum on the grounds of sexual orientation or gender identity, 85 percent of which because the IND does not believe that the person is actually gay.

Eric Hagenaars, the asylum lawyer, said that the IND is rejecting more and more asylum claims, especially for gay people. He attributes this to the current center-right government. He says that he now loses most of his cases but continues to represent LBGTQ asylum seekers.

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