McGhee (2001) 'Homosexuality and Refugee Status in the
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Received: 23/4/2001 Accepted: 28/5/2001 Published:
'Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country; of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' (Article 1A (2) of the United Nations Convention Relating to the Status of Refugees 1951)
'We think that there is a close approximation of social group to minority group as the term is used in the Convention. Both terms, we think, require characteristics of an historical and cultural nature which homosexuals as a class cannot claim.' (Golchin 1991: 7).
'it is clear that in Cyprus there is no discrimination against homosexuals who are not active...so for there to be a well founded fear of being persecuted, the social group would have to be restricted to active homosexuals.' (Binbasi 1989: 559)
'I am not saying that homosexuals cannot make themselves known, but I do not accept that they must of necessity do so in all cases merely by virtue of being homosexual. There is no evidence that the appellant is one who of necessity may be so identified.' (special adjudicator, Golchin 1991: 9).
'It would seem to us to be unarguable that in the society in the United Kingdom...Homosexuals are treated differently according to the Criminal Law, there is a great discussion as to the advisability of homosexuals in the armed forces. There is no doubt that there is both an external and internal recognition of those who are sexually oriented in such a way as to form a "group" so identified by that characteristic. It seems to us...that it cannot be argued that in Romania homosexuality is not recognised as a characteristic putting the person into a special category.' (Vraciu 1995: 14).
'I consider that there is no doubt but that the enforcement against S of any of the Iranian penalties available for homosexuality [including public flogging and execution] would fall well within the realm of persecution. By British standards these penalties are unnecessarily repressive and extreme and, were one to apply the standard set by the European Convention of Human Rights, totally disproportionate to the legitimate aim pursued, i.e. of defining the boundaries of, and seeking to control within socially acceptable limits, homosexual behaviour.' (Whitaker, in Secretary of State for the Home Department v. 'S' (75394) 1996, unreported)
'The other grounds of persecution...listed in association with "membership in a particular social group" are persecution on account of "race", "religion", "nationality", and "political opinion". Each of these grounds describe persecution aimed at an immutable characteristic: a characteristic that is either beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed...Thus, the other four grounds of persecution enumerated...restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution. Applying the doctrine of ejusdem generis, we interpret the phrase "persecution on account of membership of a particular social group" to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share common, immutable characteristics. The shared characteristics might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared past experience such as a former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined case-by-case. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or conscience. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution.' (Matter of Acosta, cited in Hathaway 1991: 160).
(Canada v. Ward 1993)
'The Acosta ejusdem generis interpretation of "particular social group" firmly weds the social group category to the principle of the avoidance of civil and political discrimination. In this way, the potential breadth of the social group category is purposefully restricted to claimants who can establish a nexus between who they are or what they believe and the risk of serious harm...for the nexus criterion to be satisfied, there must be an internal defining characteristic shared by members of the particular social group. In the Acosta formulation, this occurs when the members of the group share a characteristic that is beyond their power to change, or when the characteristic is so fundamental to their identity or conscience that it ought not to be required to be changed.' (Re: GJ 1995: 57).
'Sexual orientation presents little difficulty...sexual orientation is a characteristic which is either innate or unchangeable or so fundamental to identity or to human dignity that the individual should not be forced to forsake or change the characteristic. Sexual orientation can, therefore, in an appropriate fact situation, be accepted as a basis for finding a social group for the purposes of the Refugee Convention.' (Re: GJ 1995: 57).
'Battle "for truth", or at least around truth ? it being understood once again that by truth I do not mean "the ensemble of truths which are to be discovered and accepted", but rather the ensemble of rules according to which the true and the false are separated and specific effects of power attached to the true.' (Foucault 1980: 132).
'A major fact about being gay is that it does not show. There is nothing about gay people's physiognomy that declares them gay, no equivalents to biological markers of sex and race…' (Dyer 1993: 19).
2 In the Vraciu case, lawyers representing the Home Office assumed that a homosexual identity could be authenticated through particular practices which could discover the 'truth' of a self-confessed sexual orientation through the medical examination of bodily stigmata or corporeal signs. For more details on the Vraciu case see McGhee (2000) and McGhee (2001).
3 S's Lawyers have requested that their client's identity remains anonymous.
4In contrast to Cadogan and Brown, Whitaker was prepared to compare the criminal laws of other countries with those of the United Kingdom and the human rights standards established by the European Convention on Human Rights. This type of comparison was instituted in guidelines produced in 1979 by the United Nation's High Commissioner for Refugees:
'Due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various international Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded.' (UNHCR 1979: para 60).
Dudgeon v United Kingdom, Series A. No. 59; (1982) 4 E.H.R.R. 149.
Golchin IAT (7623) (1991,unreported).
Matter of Acosta, US Board of Immigration Appeals, interim. decision 2986, 1 March 1985.
Re: GJ (1312/93) unreported decision of the New Zealand Refugee Status Appeals Authority, 30 Aug. 1995.
R v. Immigration Appeal Tribunal ex parte Shah all England Law Reports 12 May 1999, 555h.
R V. Secretary of State for the Home Department ex parte Binbasi (1989) Imm. AR 595.
R v. Secretary of State for the Home Department v. "S." IAT (75394) (1996, unreported).
Secretary of State for the Home Department v. "S." IAT (75394) (1995, unreported).
Sanchez-Trujillo v Immigration and Naturalisation Service (1986) 801 f2d 1571.
Secretary of State for the Home Department v. Mihai IAT (M690375) (1998, unreported).
Vraciu IAT (11559) (1994, unreported).
Vraciu IAT (11559) (1995, unreported).
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MCGHEE, D.P. (2000) 'Accessing Homosexuality: Truth, Evidence and the Legal Practices for Determining Refugee Status ? The Case of Ioan Vraciu', Body & Society Vol. 6 Number 1, 29-50.
MCGHEE, D.P. (2001a, forthcoming) 'Persecution and Social Group Status: Homosexual Refugees in the 1990s', Journal of Refugee Studies Vol. 14 Number 1, 1-23.
MCGHEE, D.P. (2001, forthcoming) Homosexuality, Law and Resistance, Routledge Research in Gender and Society: London and New York.
RUSSELL, S. (1998) 'Sexual Orientation and Refugee Claims Based on "Membership of a Particular Social Group" Under the 1951 Refugee Convention', in F. Nicholson and P.Twomey (eds) Current Issues of UK Asylum Law and Policy, Dartmouth: Ashgate. 133-151.
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