Open Access Research Article
FROM PERSECUTION TO PROTECTION: THE LEGAL LANDSCAPE FOR LGBTQ+ MIGRANTS WORLDWIDE.
Published Paper
Article Details
FROM
PERSECUTION TO PROTECTION: THE LEGAL LANDSCAPE FOR LGBTQ+ MIGRANTS WORLDWIDE.
AUTHORED BY
- NIRALI NAYAK & DEBASMITA SAHA
Institution:
- Xavier Law School, XIM University,
Bhubaneswar, India
Abstract: -
This article sheds light on the unique challenges related to migration
faced by the LGBTQ+ community. Through a comprehensive analysis of global
migration policies, asylum procedures, the experiences of LGBTQ migrants, and
the futuristic Indian perspective, this piece aims to contribute to a deeper
understanding of the current state of affairs and advocate for more inclusive
legal frameworks. Safeguarding the migration rights of LGBTQ+ individuals is a
moral obligation towards the society and the international community. This will start by acknowledging the
challenges and implementing policies and laws that will respect the dignity and
rights of all individuals, not considering their gender and migration
status.For LGBTQ individuals, the migration laws often add a layer of
complexity, as they may be discriminated due to their gender identity. This
article explores how migration laws impact the lives of LGBTQ migrants and
examines both the progress that has been made and the persistent challenges
that remain.It explores and advocates the legal, social, economic, and
psychological aspects of inclusive agendas that uphold the fundamental and
human rights of LGBTQ migrants.
Further, it also talks about the emigration of LGBTQ+ people from India.
A comparative study of various nations is presented, along with the need for
global cooperation in addressing the LGBTQ+ refugee crisis.
Keywords: Human
rights violation, Indian LGBTQ emigrants, refugee protection, sexual
orientation, queer community refugee.
Review of
Literature
A comprehensive review of
literature on this topic provides an insightful analysis of the global legal
challenges faced by LGBTQ+ migrants. It explores the evolving legal frameworks,
human rights protections, and the varying degrees of acceptance and persecution
experienced by LGBTQ+ individuals as they migrate across different regions. It
discusses the impact of these legal landscapes on the lives of LGBTQ+ migrants,
examining how legal protections or lack thereof shape their experiences and
influence their decision to seek asylum or migrate to more inclusive
environments. The effectiveness of international and national legal instruments
in safeguarding the rights of LGBTQ+ migrants could be a central focus, with an
eye towards shedding light on areas for improvement and future research.
Introduction:
-
The legal landscape of migrants worldwide is dynamic and complex, that
is covered by international, national, and regional laws. It deals with a
varied range of issues, including immigration, asylum, refugee status, and
human rights. Countries generally have different policies governing and looking
after the entry, stay, and rights of migrants, while international agreements
such as the Geneva Convention establish principles for refugee protection.
Similarly, the legal landscape for LGBTQ migrants is marked by a diverse
set of challenges. This involves and entails navigating and negotiating
immigration and asylum policies with considerations for sexual orientation and
gender identity. While some nations have witnessed remarkable progress in
recognizing LGBTQ rights, others present significant obstacles, including
discrimination and discriminatory laws and societal attitudes. International
organizations and treaties, such as the UN Refugee Convention, play a role in
safeguarding the rights of LGBTQ migrants. The necessity for complex legal
frameworks that guarantee inclusivity and protection for this vulnerable group
is highlighted by the intersectionality of migration, sexual orientation, and
gender identity. Additionally, debates about policies regarding immigration,
border control, and social integration contribute to the emerging legal
framework, making it a very important aspect of global governance and human
rights discourse.
For a long time now, the human rights of LGBTQ+ migrants have been an
under-studied area, which requires sincere attention from all the nations. With
the increase in voluntary migration of LGBTQ+ people each year, migration
remains to be that feature of the modern world, which is set to continue.
LGBTQ
Migrants worldwide: -
The legal rights and protections for LGBTQ migrants are different
worldwide. There are few countries that made significant progress and
advancement in recognizing and defending the rights of LGBTQ individuals, while
the rest of the world may have more conservative or restrictive policies.
In the nations that are more progressive in nature, the LGBTQ migrants may
witness legal protections against discrimination, and their rights may be
compared with the non-LGBTQ migrants. In some specific regions, LGBTQ
individuals, also the LGBTQ migrant, may face challenges and obstacles that are
related to discrimination, persecution, or lack of legal recognition.
Past
instances of persecution and discrimination against
LGBTQ
migrants: -
The mistreatment of LGBTQ+ people go far beyond discrimination and
remains a major concern for their persecution. Migration has often become a
survival strategy for those who wanted a more accepting and tolerant
environment. The criminalization of homosexuality in many countries has forced
LGBTQ individuals to migrate. The Migration helps reduce persecution in the
form of legal penalties, social ostracization, violence, and threat of death.
This leads to their social isolation. Migration allows them to find more
accepting environments where they can freely express their identities without
fear of reprisal, a more supportive legal environment and a respectable social
identity.
At present, homosexuality is still considered illegal in as many as 64
countries. In 2023, a new law issued by the Ugandan government stipulates a
20-year prison term for the "promotion of homosexuality," which may
include organizations that support the rights of LGBTQ+ individuals.A Taliban
judge in Afghanistan declared that homosexual men need to be punished by being
thrown onto a wall or stoned to death. "LGBT people are sometimes
subjected to harassment, beatings and assaults, sexual violence and rape,
torture, blackmail and extortion," according to police in Nigeria.
Same-sex relationships between men are illegal in Pakistan. Gay males who
engage in same-sex relationships in Iran face punishments that "range from
flogging to the death penalty."
These instances show why LGBTQ+ community people prefer to travel to
countries with less stringentlaws on homosexuality or that embrace
homosexuality like any other. They move out and leave their homeland just in
search of some basic human rights and equal treatment. Even the asylum policy
provided in many countries hardly considers the specific and different needs of
the LGBTQ+ people who seek asylum.
Human
rights conventions, laws and treaties: -
LGBTQ Migrants with different and varied Sexual Orientation are
safeguarded under laws relating to International human rights through
covenants, laws and treaties which co-relate to their SOGIESC that is Sexual
Orientation, Gender Identity, Gender Expression, and Sex Characteristics and
their status of migration. International Bill of Rights Protection relating to
SOGIESC is generally availablein the International Bill of Rights that comprising
the treaties of The Universal Declaration of Human Rights; The International
Covenant on Civil and Political Rights; & The International Covenant on
Economic, Social and Cultural Rights. The prior mentioned conventions are
legally bound and state signatories that are obligated towards reforming their
domestic laws to line up with their international legal commitments. Convention on Elimination of All Forms of
Discrimination against Women, the Convention on the Rights of the Child, the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, and the International Convention on the Elimination of All Forms of
Racial Discrimination are the other conventions that offer with varied Gender
Identity sex characteristics. The Council of Europe and The Organization of
American States, are examples of some of the regional organizations that have
pledged their commitment to safeguard and enhance the quality and rights of LGBTQ+
people.
Some human rights experts introduced the Yogyakarta Principles which are
a set of international guidelines, that correspond to the sexual orientation of
people. In response to the lack of coherence in the various international human
rights law frameworks for people with diverse SOGIESC. The Yogyakarta
Principles which were released in 2007, act as a global framework for the human
rights of LGBTIQ+ individuals. Not like an international treaty, the principles
are a soft law tool and do not, by them, constitute a legally binding mechanism
for human rights.[1]Nonetheless,
all signatory states are required to abide by the legally binding international
conventions and standards as stated in the Yogyakarta Principles. Regarding the
safeguarding of migrant rights, the United Nations December 2018 adoption of
the Global Compact for Safe, Orderly, and Regular Migration (GCM) was approved
and adopted by the UN General Assembly in December 2018 with the goal of
fostering better collaboration on global migration in all its forms. One of the
fundamental tenets of the GCM is gender responsiveness, which that ensures,
every immigrant, regardless of gender, has their human rights upheld at every
stage of the migration process, that their particular needs are recognized and
met, and are given the authority to effect change.[2]The
GCM however, makes no mention of the rights of immigrants with different
SOGIESC. To protect the rights of migrant labourers, in 2003 the International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families was enforced. Aligned
with the GCM, the convention's text does not formclear allusions to individuals
with different SOGIESC.
Discriminatory provisions in immigration laws and policies inconsonance
with sexual orientation, as well as violence directed towards LGBTIQ+ migrants
have drawn the attention of various Committees. Migrants varied socioeconomic
experiences under international refugee law, people with different Sexual
Orientation, Gender Identity, Gender expression, and sex characteristics,
SOGIESC are entitled to the same protections as other refugees. Article 1A(2)
of the UN Convention Relating to the Status of Refugees, 1951, and its
Protocol, 1967, specify that people may apply for asylum based on five factors:
race, religion, nationality, membership in a social group, or political opinion.
During 2008 the term “social group” was defined by the UNHCR in a guidance note
to include sexual orientation and gender identity. In 2012, the guidance note underwent additional
updating. According to UNHCR estimates, at least 42 States have granted asylum
to LGBTQ people who had a legitimate fear of being persecuted because of their
gender identity or sexual orientation. But unfortunately, the exact number is
unknown because each State has its own set of criteria for granting asylum.
Cross-Country
Examination of LGBTQ+ Migration Legislation:-
Different countries have different LGBTQ+ migration laws and policies.
The legal landscape is dynamic and keeps evolving with time.
CANADA
Previous scenario: The
first ever criminal trial of homosexuality in Canada dates back to as far as
1648 when a military drummer was sentenced to the gallows for sodomy. In the
1950s the “fruit machine” was employed in Canada to eliminate all homosexuals
from the civil services, police, and military. The Criminal Code in 1948 identified
gay men as “criminal sexual psychopaths” and “dangerous sexual offenders.” It
was in 1969 when Canada decriminalised homosexuality.
Present scenario: Canada
has come a long way from LGBTQ activity being considered as a crime from the
colonial period to being one of the safest and least discriminatory nations in
the world. Now, it is known for its inclusive policies and is one of the early
adopters of same-sex marriage. The Government of Canada is of the view that,
someone’s gender identity should not be a reason for them to be denied the
chance to immigrate to Canada. The immigration application of Canada does not
mandate the gender identity of a person. The Canadian Government permits LGBTQ
community people refugee status if they are being oppressed or persecuted in
their own country due to their sexuality. There are also various immigration
programs in which individuals from the LGBTQ+ community would be eligible to settle
in Canada as permanent residents.
USA
Previous scenario:
Documented execution for sodomy started in 1624 in US. In 1649 the first
conviction for lesbian behaviour was noted. Sodomy laws persisted in the early
colonies until they were challenged in 1925. Defence of Marriage Act was
enacted in 1996 which denied allied recognition of same-sex marriage. This
created complications for immigration benefits. LGBTQ migrants who were held in
detention centres faced challenges related to their sexual orientation,
including inadequate access to healthcare, increased vulnerability to
harassment, and a lack of appropriate accommodations. They also faced the risk
of deportation to places where they could be persecuted for their sexual
orientation.
Present scenario: DOMA
was declared unconstitutional in 2013. Also, the LGBTQ Asylum Project provides
access to legal representation and additional resources for queer asylum
seekers. The applications from LGBTQ couples are treated at par with
applications from heterosexual couples by the US Citizenship and Immigration
Services. The Memorandum on International Initiatives to Advance the Human
Rights of LGBT Persons commits to instruct U.S. government personnel and key
partners to efficaciously direct the protection of LGBT refugees and asylum
seekers and ensure that they have same and equal opportunity to protection and
assistance[3]. Now immigration rights are also extended to
the children of LGBTQ couples[4].
United Kingdom
Previous scenario: During
the 1900s the immigration experiences of LGBTQ people were challenging. The
early to mid-20th century saw widespread discrimination, persecution, social
stigma, and criminalization of homosexuality, which affected the lives of LGBTQ
individuals. The lack of legal protection against the discrimination of LGBTQ
people made it difficult for immigrants to seek refuge there. The asylum claims
of persecuted LGBTQ people were also not readily understood.
Present scenario: Currently
there has been an increase in LGBTQ people seeking asylum in the UK, especially
from Pakistan, Jamaica, Nigeria, and Ghana. Although the UK is taking steps to
make the asylum process easier for LGBTQ applicants, it is not being completely
successful. The Immigration and Asylum Act is designed to assist LGBTQ asylum
seekers. But still, it is found that the immigrants are being inappropriately
questioned about their sexual preferences. Even then, around 2000 LGBTQ people
seek asylum in the UK every year[5].
Article 1(a) (ii) of the Geneva Convention provides for the legal framework and
protection for LGBTQ asylum claims.
Australia
Previous scenarios: The
Australian states and territories decriminalized homosexuality at different
times. But before their decriminalization, LGBTQ people had to face
discrimination and persecution owing to their gender identity. The immigration
policies of Australia also discriminated against LGBTQ individuals. Homosexual
acts were considered one of the major grounds for excluding or deporting
individuals under immigration laws.
Present scenarios:
Over time, Australia's immigration policies were reformed to remove explicit
discrimination based on sexual orientation. Amendments were also made in the
character test provisions to prevent arbitrary discrimination against LGBTQ
individuals.Australia, like other countries, also started considering asylum
claims based on persecution due to gender identity. Now asylum seekers can
apply for protection if they face persecution because of their LGBTQ status in
their home countries.
Germany
Previous scenario:
Germany replaced the Nazi-era laws that criminalized homosexuality but still
the legal situation for LGBTQ individuals remained complex. Homosexual acts
were decriminalized in the 1970s. Germany was forced to take into consideration
about decriminalising of LGBTA and improving their migration facilities after a
major part of German population either came out or supported homosexual acts.
Present scenarios: Now
Germany has made significant advancements in LGBTQ rights, including the
protections for LGBTQ migrants. Germany grants asylum to those who are
persecuted due to their gender identity or sexual orientation. LGBTQ people can
seek refuge in Germany if they are persecuted in their homeland because of
their LGBTQ status. Guidelines have been set by the German government to
ensure an unbiased evaluation of asylum applications pertaining to LGBTQ
persecution. It is anticipated that decision-makers will take into account the
particular difficulties LGBTQ asylum seekers experience. Internationally,
Germany has become a liberal and tolerant country for the LGBTQ community.
South Africa
Previous scenario:
During the Apartheid Era, which was from 1948 to 1994, homosexuality was
criminalized in South Africa and it was considered immoral[6].
Those involved in same-sex relationships were persecuted with the help of The
Immorality Act 1957 and the Suppression of Immorality Amendment
Act.These regulations made it illegal to engage in some illicit
conduct outside marriage, including consenting same-sex relationships. The
punishment for the violation of the Immorality Act could also result in jail
time, fines, and criminal prosecutions.
Present scenario: When it comes to LGBT travel, South Africa shines
brighter than the rest of Africa. World's first constitution to outlaw differentiation
based on sexual orientation was drafted in South Africa on May 8, 1996. Then,
on October 9, 1998, the courts legalized homosexuality; this decision went into
effect retrospectively on April 27, 1994.On the African continent, South Africa
continues to be a popular destination for migrants. But as Victor Chikalogwe
reports, many refugees and asylum seekers have had their hopes for a new, safe
home shattered. When queer African migrants encounter the homophobic and
xenophobic sentiments that are pervasive in South African society, they
frequently encounter the same forms of social and economic marginalization from
which they had wanted to flee. Large-scale xenophobic attacks have been the
result of a resurgence of anti-immigrant sentiment during the past ten years,
most notably in 2008, 2013, and 2015. The absence of a cogent migration policy,
inadequate administration, and corruption have severely hampered the department
of home affairs, which is in charge of immigration-related concerns[7].
Difficulties
faced by LGBTQ Migration in India:-
In India, people belonging to LGBTQ community have to face the risk of
factors like violence and even displacement through forced migration and
homelessness. Indian families when it comes to this are still lacking behind in
accepting the truth and therefore the child belonging to this community still
face different kinds of family resistance, to extent that they have to leave
their family and home. Families to avoid this particular stigma often send
their children for gender conversion or therapies.
Delhi High Court made a decision in 2009 defending and enhancing consensual
gay sex had in fact led to steady gains. As a result of study in 2011 regarding
the changing and evolving attitudes in India towards homosexuality following
the 2009 Delhi High Court decision painted, "a global picture;
representing that decriminalization continuously results to an uplift in the
grade of social acceptance and, majorly, self-acceptance of sexual minorities.
From across the various nations, the LGBTQ refugees saw India as one of
the most progressive and advanced countries in this region. With the law
supporting them, the LGBTQ refugees found better survival conditions and social
supporting aspects in India than in their own country of origin.
The condemnation of homosexual acts by the state, that is endorsed, continuously
serves to both legitimize and re-establish social discrimination, police abuse,
and other forms of marginalization against LGBTQ refugees. The LGBTQ refugees
are not only foreigners but also identify themselves as sexually and gender
non-conforming. Neil Grungras, the founder and executive director of ORAM
exclaimed that "Based on our field experience and research in other
countries, we worry that this legal setback could have a dramatic impact on the
conditions of LGBTI refugees in and from India, especially when it comes to
core survival needs like protection from community violence and access to
housing, health care, and employment."
ORAM is Organization for Refugee, Asylum & Migration, headquartered
in San Francisco, California, it is the most important worldwide supporter of
individuals escaping persecution due to their gender identity or sexual
orientation. Through the help of advocacy and education, ORAM lends its support
to the millions of refugees and asylum seekers worldwide. It also offers help
in technical field to individuals and organizations that wish to work with
LGBTI refugees, asylees, and asylum seekers.
Challenges
in implementation: -
LGBTQ immigration rules can be difficult to implement for a variety of
reasons, including the need for inclusive policies, broader society attitudes,
and complex legal issues. Among the difficulties encountered in putting LGBTQ
immigration regulations into effect are:
1.
Inefficient legal safeguards- In
nations where there are inadequate legislative safeguards against
discrimination based on sexual orientation or gender identity, LGBTQ migrants
may encounter difficulties. They may be subject to abuse or rights denial as a
result of the absence of legal protections.When immigrants move to another
country, that country must have the necessary laws to protect LGBTQ immigrants.
2.
Poor asylum facilities-
The way that LGBTQ asylum seekers are handled in immigration detention
facilities has garnered quite criticism. These people might have particular
difficulties and dangers because of their gender identity or sexual
orientation. LGBTQ people may be at danger for safety in badly run asylum
shelters. An apprehensive living environment can result from other residents'
or staff members with homophobic and transphobic attitudes, which can lead
to verbal, physical, or emotional harassment.
3.
Conversion therapy-
Conversion therapy is a dangerous and extensively discredited treatment that
aims to change a person's gender identity or sexual orientation. It is often
referred to as reparative or ex-gay therapy. There are significant ethical and
human rights issues with conversion treatment. Conversion therapy is a real
possibility, and its use or threat to LGBTQ asylum applicants can make matters
worse. LGBTQ people who are applying for asylum frequently argue that they are
being persecuted because of their sexual orientation. One of the main causes of
their persecution may be that they either experienced or were afraid of
conversion therapy in their native nations.
4.
Intersectionality-
LGBTQ immigrants combine various identities, including race, ethnicity,
nationality, socioeconomic class, and more, with their sexual orientation or
gender identity. Their experiences can be uniquely shaped by the intersections
of various identities. LGBTQ migrants come from a variety of cultural, racial,
and national origins. In addition to their LGBTQ identity, other elements that
influence their experiences include immigration status, language ability, and
familiarity with the social and legal systems of the host nation. Immigration
officers, service providers, and support groups must be cognizant of the many
cultural origins of LGBTQ migrants and possess cultural competency. It is
imperative to comprehend the intersections of diverse identities in order to
deliver inclusive and efficient support.
5.
Transgender and Non-Binary Issues-Particular
difficulties and problems arise for transgender and non-binary people in the
context of LGBTQ migration. These difficulties frequently result from an
amalgamation of issues including gender identity, cultural diversity, legal
recognition, access to healthcare, and societal attitudes. Transgender and
non-binary people may apply for asylum if they are being persecuted because of
their gender identity. The special experiences of transgender and non-binary
asylum seekers should be taken into consideration by asylum procedures, as they
may face prejudice and persecution due to their sexual orientation as well as
their gender identity. People who identify as transgender or non-binary may be
especially at risk in immigration detention centres. When people are placed in
facilities that are gender-segregated because of their assigned sex at birth
rather than their gender identity, it can lead to harassment, violence, and a
lack of access to quality healthcare.
6.
Political Backlash- In
the context of LGBTQ migration, political backlash can result in unfavourable responses
or resistance by political figures, organizations, or social groups against
laws, customs, or persons involved in LGBTQ migration. This pushback has an
impact on the inclusion, rights, and well-being of LGBTQ migrants and can take
many different forms. Politicians and other public figures may utilise
anti-LGBTQ rhetoric as a kind of political objections. This discourse has the
potential to create a hostile atmosphere that encourages stigmatisation and
discrimination against LGBTQ immigrants. Opposition from conservative or
anti-LGBTQ groups can lead to legal battles, policy reversals, or delays in the
implementation of supportive measures.
7.
Lack of Availability and Navigation of
the data- One of the main problems is the shortage of proper
information about the circumstances and possibilities of LGBTIQ+ people
throughout the migration process. This is most important because there is not
enough political will, funding, or capability to gather and analyse this kind
of data. The analysis and dissemination of SOGIESC findings persists to be uncommon,
even in nations where data on the subject are gathered. Human rights
organisations and local and international NGOs conduct research on
transnational violations against LGBTIQ+ migrants, including those committed by
traffickers, smugglers, and border agents. Nevertheless, many of the LGBTQI survivors
choose not to report these violations due to their precarious circumstances.
8.
Discrimination of human rights
violations and abuse in transit LGBTQ+-Because of their SOGIESC,
LGBTQI+ or homophobic migrants encounter unique and difficult risks while
travelling. The denial of access to essential services, like health care,
unsafe shelters, harassment and violence in immigration detention centres,
significant physical and sexual violence from a range of perpetrators, and
discrimination and differentiation by border agents, immigration officers, and
service providers are a few of these. When travelling abroad, women who are transgender
may experience a disproportionate amount of violence and abuse, including from
smugglers, traffickers, and other migrants. Many LGBTIQ+ migrants who travel
through unofficial channels are held in immigration detention facilities in
both their intended and transiting countries, where they frequently endure and
come across physical abuse. The lack of accurate legal documentation can pose
additional challenges for LGBTIQ+ migrants, particularly for transgender and
gender diverse individuals. If a person's official documentation does not
reflect their gender identity or expression, they may face discrimination and
mistreatment from border officials, law enforcement, social service providers,
and other officials, and their ability to cross borders or checkpoints may be
difficult and sometimes denied.
It
was not many but only 10 years ago that UK apex Court declared that gay people
should not have to hide and conceal their sexual identity for avoiding
persecution in their own home country. Following is case law related to this
above statement.
Sexual
orientation was the reason why the UK Supreme Court granted asylum to HJ and
HT, who were from Iran and Cameroon, respectively, six years ago. Had they been
returned back to their native countries, they would have been forced to conceal
and fake their sexual orientation in order to avoid persecution—which is, grave
harm inflicted or approved by the government. In the country Iran,
homosexuality carries death sentence, and in Cameroon, homosexuality is
illegal; those found guilty face sentences of up to five years in prison.
The
two men had to convince the judge that expecting them to conceal their sexual
orientation in order to escape persecution was violative of the 1951 Refugee
Convention.[8]
They have been previously denied their requests by the courts for asylum on the
grounds that the men would find it "reasonably tolerable" to conceal
and hide their formation of sexual orientation. Under the "Anne
Frank" policy—which suggested that, the men would be safe if they hid from
the police but not if they didn't—the lower courts upheld the idea that it was
reasonable to anticipate that HJ and HT would conceal their true identities.
The
Supreme Court rejected the said judgment. It was quoted by a judge:
"To pretend a person’s sexuality does
not exist, is to deny them the fundamental right to be who they are."
According to the judge, combating discrimination is one of the goals of the
Refugee Convention. Therefore, it might not be appropriate to expect people to
return to their home countries and conceal who they are.
In
this particular case, LGBT people were successfully shielded from
discrimination in their native nations. However, not all of this cases always
end up as it successfully did in case of HJ and HT did. In their case, Lord
Hope, a judge on the Supreme Court, stated:
“The
truth is that in present day now there is a huge gulf between the attitudes of
societies on either side of the divide regarding LGBTQ community’s people and
their experiences. It's among the most pressing and important social issues of the
day.
LGBT
asylum seekers in the UK were formerly subject to a procedure known as the
"reverse of justice" or "guilty until proven innocent."
This is due to presence of the fact that LGBT asylum seekers must demonstrate
their homosexuality and their chances of being persecuted in order to be
granted protection from discrimination.
Data
discovered that prior to this significant judgment, 73% of asylum claims
overall were granted, while 98–99% of LGBT asylum claims were denied.
Orashia
Edwards who is a bisexual man, believed that if he were sent back to Jamaica,
his native country he would be murdered.[9]
In Jamaica, engaging in sexual activity with another man is illegal and provides
10-year sentence. The Human Rights Watch stated in 2014 that "unchecked violence"
against LGBT individuals was occurring in Jamaica. Following a three-and-a-half-year
court battle after which Orashia was granted permission to remain in the United
Kingdom.
UK
has frequently sent LGBT asylum seekers back to their unsafe home countries.
This can have disastrous results in certain and some situations.
Jackie
Nanyonjo fled Ugandan persecution for her lesbian beliefs and immigrated and
escaped to the UK. In January 2013, she applied for asylum in Britain and was
denied. Jackie was in pain and throwing up blood when she arrived, but the
Ugandan authorities detained her for several hours because the British
authorities had used excessive force to remove her. Jackie fled into hiding,
worried that her sexual orientation had come to light. Unfortunately, she
passed away on March 8, 2013, as her health declined and she died without
getting proper justice, not every story has happy ending.
Few recommendations
suggested:-
·
Governments, legislators, and national and local
humanitarian and development actors must opt for and look after for deliberate
action to safeguard and advance the rights of LGBTIQ+ individuals during the
process of the migration and to address the various, interconnected forms of
discrimination they encounter. The following lists specific suggestions based
on the various stages of migration. Origin countries: Establish safe and just
environments for LGBTIQ+ individuals in their home countries so that migration
is an option they can choose from.
·
Enact new legislation or bolster the existing ones to
guarantee that LGBTIQ+ individuals receive equal and complete access to legal
and employment protections.
·
Put into action campaigns to raise and spread
awareness and encourage respect for the rights of LGBTIQ+ individuals and to
stop and restrict violence against them in all and every forms
·
Work together with civil society groups which focus on
various SOGIESC issues to develop new services or improve access to
already-existing ones.
·
Reduce the risk of migration during the journeys.
·
Create and execute human rights-based,
gender-responsive immigration laws and policies, and grant LGBTIQ+ migrants to
access to inclusive services that address their unique needs.
·
Revise existing policies on gender-based violence and
migration to include provisions and to end violence against LGBTIQ+ people.
·
End all forms of violence against LGBTIQ+ migrants. Looking at the circumstances and into all the offences
and breaches of human rights against members of the LGBTIQ+ community,
including those involving trafficking victims and survivors, providing LGBTIQ+
survivors of violence access to vital services, such as justice, health, and
social services, including for victims and survivors of trafficking and those
who have suffered and faced violence at the hands of smugglers with the goal of
identifying, prosecuting, and punishing and criminating those responsible.
·
Take action to address and recognize the violation of
human rights during transit, such as creating and enhancing mechanisms for
LGBTIQ+ migrants to report instances of gender inequality and gender-based
violence. Examine and update immigration detention procedures for LGBTIQ+
migrants by growing detention alternatives for LGBTIQ+ migrants, particularly
transgender women and people of colour, who are more vulnerable to violence and
discrimination.
·
Transgender women should no longer be detained in
men's immigration detention centres. Ensuring that everyone in immigration
detention who needs it has timely and unhindered access to hormone therapy and
HIV treatment.
·
Boost the protection of LGBTIQ+ immigrants by allowing
access to humanitarian visas or asylum to those who fear persecution because of
their SOGIESC
Summing up:
-
Globally, the legal environment for LGBTQ migrants has changed
drastically over the years, moving from a history of persecution to one that is
increasingly characterized by protective measures. Although there has been
progress in many areas, issues such as social stigmas, discriminatory laws, and
uneven acceptance rates still exist. Nations must never stop promoting
inclusive legal frameworks that protect LGBTQ migrant rights and guarantee
their freedom from discrimination and persecution. International cooperation
and campaigning are still essential for advancing tolerance and equity for all
people, regardless of gender identity or sexual orientation. Ongoing efforts are
required to close gaps, remove obstacles, and establish an atmosphere where
LGBTQ migrants can seek safety, contribute, and live true lives fearlessly as
nations work towards greater acceptance and understanding.
[1] UN Women uses both “LGBTIQ+” and
“diverse SOGIESC” where appropriate in global contexts.
[3]Paper from Los Angeles Pierce
College, and University of Salford
[6] Lorinda Venter, LGBTQIA+ rights in
South Africa, International Bar Association
[7] 11 October 2018, A Double
Challenge: LGBTI Refugees and Asylum Seekers in South Africa
[8]This ensures non-discrimination for
those of all sexual orientations and gender identities under “other status” of
Article 2 in General Comment
[9] International Gay and Lesbian
Human Rights Commission (IGLHRC). (2013). United Nations Treaty-Based Bodies –
CEDAW, Paper on London School of Economics and Political Science
Article Information
FROM PERSECUTION TO PROTECTION: THE LEGAL LANDSCAPE FOR LGBTQ+ MIGRANTS WORLDWIDE.
Authors: NIRALI NAYAK, DEBASMITA SAHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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