Copyright Sociological Research Online, 2001

Derek McGhee (2001) 'Homosexuality and Refugee Status in the United Kingdom'
Sociological Research Online, vol. 6, no. 1, <http://www.socresonline.org.uk/6/1/mcghee.html>

Abstract

In this paper the legal institutional practices whereby refugee statuses are determined is subjected to examination through the vehicle of cases where homosexuality has been the basis of the application for refugee status. What emerges in this article is a narrative of homosexuals being excluded from and eventually included in refugee status in the United Kingdom. This narrative is played out within the discursive context of a particular definition of refugee status, namely, that of being a member of a persecuted social group. It is through the analysis of refugee case law in the United Kingdom and internationally that homosexuality is presented, as providing specific problems for refugee law in terms of whom, and in what circumstances, should be included in the 'social group' category. In this paper it will be demonstrated that homosexual cases are significant in relation to the attempt to overcome 'exclusive definitions' of 'persecuted social groups' in refugee law. This is evident, most particularly in terms of the increasing connection between International Refugee Law and International Human Rights Law in the consideration of the persecution experienced by homosexuals in the cases analysed in the paper.

Keywords:

Convention; Homosexuality; Human Rights; Persecution; Refugee Law; Social Group; United Nations

Introduction

1.1

The focus of the analysis in this paper is the reports of the Immigration Appeal Tribunals resulting from applications for refugee status made by homosexual men.^[1] This paper is part critical analysis and part descriptive account of applications for refugee status made under one particular aspect of refugee law. That is, the 'social group' category. The 'social group' category is one of a range of categories found in the following Article of the United Nations Convention Relating to the Status of Refugees 1951 under which an application for refugee status can be made:

'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)

1.2

The importance of the particular social group definition is that this provision is the only available site of entry for 'non-traditional' refugees who do not fall under the other criteria in Article 1 A (2) of the Convention (1951). The primary objective of this article is to examine how the Convention 'social group' category has been interpreted in relation to applications based on homosexuality in the United Kingdom. However, interspersed with this emphasis on UK Refugee case law, there will be an analysis of developments in the wider international context in relation to the determination of so- called 'non-traditional' social groups.

1.3

However, as well as this legalistic analysis, themes such as the visual, the visible and the social recognition of homosexualities will be encountered throughout the paper. In this parallel analysis the inclusion or exclusion of homosexuals from the Convention social group category becomes a matter of some of the following: 'the homosexual's' ability to pass (as heterosexual), the voluntary nature of homosexual 'social group' associations and the suggestion that homosexual applicant's should avoid persecution through circumspect behaviour. In the final part of the paper it shall be revealed that these justifications for excluding homosexuals from Convention social group status were disrupted by the intersection of human rights standards with refugee determination procedures. It was through the intersection of these two 'legal' regimes that the social group determination process in homosexual cases was shifted away from focusing on the behaviour and characteristics of the applicants alone, to include the assessment of the persecutory intent of the state in question in relation to homosexuals as measured against the host state's legislation and the principles set out in the various international covenants on human rights.

The Convention Social Group Category.

2.1

In refugee studies there has been considerable debate about the purpose of the social group category. For example, it is unclear if the category was (a) supposed to make the other four categories (race, religion, nationality, political opinion) illustrative examples of social groups (Gagliardi 1988: 269), or, (b) whether it was introduced as a means of including non-traditional refugees. In UK case law, the Immigration Tribunal that best demonstrates how the social group definition has been interpreted to the disadvantage of homosexuals is the case of Mr Golchin an Iranian homosexual heard in 1991. In the Golchin case, the social group category was interpreted as meaning 'minority group'. The special adjudicator in the Golchin case stated the following:

'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).

2.2

In the Golchin case, the 'historical element' consistent with the equating of social group with minority group was the capability and capacity for 'affiliating succeeding generations'. The special adjudicator in the Golchin tribunal described homosexuals as being a class, who are unlike traditional minorities, in that their membership of a homosexual group is purely voluntary, and that associations between homosexuals were socially inconspicuous.

2.3

Throughout the Golchin tribunal discourses of choice, 'social invisibility' and the voluntary nature of homosexual 'group membership' was contrasted unfavourably against the plight of what the tribunal conceived as being genuinely persecuted minority. However, this was not the first time that such discourses had been deployed in a tribunal based on a homosexual's application as we shall see in the tribunal of a homosexual Turkish Cypriot, with the name of Binbasi heard in 1989. In the Binbasi tribunal the special adjudicator decided that in order for the applicant to avoid prosecution to the point of persecution for engaging in homosexual activities, he was advised to 'refrain' from engaging in such activities upon his return to Cyprus:

'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)

2.4

In the Binbasi tribunal, the social invisibility of an 'non-active' homosexual was deployed as a mechanism for excluding homosexuals from being included in the persecuted social group category. Similarly, in the Golchin case it was stated that ultimately the responsibility for the applicant's alleged persecution lay in his choice as to whether he drew attention to himself or not. Mr Golchin actually attempted to demonstrate in his tribunal just how well founded his fear of being persecuted in Iran was by explaining that if his homosexuality was to become known on his return to Iran one of the penalties he could face was execution. The special adjudicator's judgement on the likelihood of Mr Golchin's homosexuality becoming known, and him experiencing persecution, as a result, on his return to Iran was as follows:

'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).

2.5

The special adjudicator was referring to Mr Golchin's 'physical demeanour' in his passage, more specifically the special adjudicator was referring to Golchin's demeanour as being, in his opinion, unlike or socially unrecognisable as homosexual. Erving Goffman describes demeanour as being conveyed through 'deportment, dress, and bearing' (Goffman 1967: 77). That is, demeanour is conveyed through and on the surface of the body. Demeanour is associated with gender, that is gender as a way of acting the body. Gender here, its recognition and what it signifies is reminiscent of Judith Butler's description of gender as a 'vocabulary of action', 'a corporeal style', a way of wearing one's own flesh as a cultural sign' (Butler 1989: 256). That is, a sign, a signifier of an underlying biological sex and a discernible sexual orientation. Gender or physical demeanour became in the Golchin case the means whereby the tribunal demonstrated further justification why homosexuals did not need to be, or deserve to be, included in the definition of a particular persecuted social group. In the Golchin and Binbasi cases homosexuals were presented as being unlike members of perceivably different minority groups, for example, tribes, families, religious groups, linguistic communities. Homosexuals were therefore presented as being different and strange, yet also similar. That is, in the Golchin and Binbasi cases, homosexuals were produced as both other and same, that is, men who were capable of hiding their otherness, yet their sameness could be assumed. Homosexuals in this context are what Georg Simmel would describe as 'strangers' (Simmel 1950), however their strangeness can be described as being of the 'organic' variety rather than a strangeness of origin. Mr Golchin's 'un- homosexual' appearance, and the assumption that he could avoid persecution, through passing as a heterosexual became, in this tribunal, a further means of demonstrating why Golchin did not need, or deserve to be included in the Convention social group category. What we can see from these passages from the Golchin and Binbasi tribunals is that homosexual identity and membership of a homosexual group was presented as being an avoidable or self-inflicted form of persecution. It is important to note at this stage that the focus in the Golchin and Binbasi tribunals was exclusively on the behaviour and characteristics of the applicants themselves. The behaviour of the states in question towards homosexuals was left unquestioned in these tribunals. This neglect of how states treat certain social groups in favour of focusing on the behaviour and characteristics of individuals such as Golchin and Binbasi is not unusual in Refugee Law. In fact, in refugee studies three noted authors (in particular Goodwin-Gill, 1983, Grahl-Madsen, 1966, and Hathaway, 1991) have advocated that the Convention social group determination procedures should include an assessment of the behaviour of the state, instead of focusing on the characteristics and behaviour of the applicant alone. These authors have also been particularly active, in attempting to challenge the substitution of 'social group' for 'minority group' in refugee determination procedures, as evident in the Golchin tribunal.

Homosexual Social Groups.

3.1

Four years after the Golchin case, in 1995, a Romanian man, Ioan Vraciu, also made an application for refugee status based on his membership of a persecuted social group in Romania, namely homosexuals. The Vraciu case is particularly important as it became synonymous with the Home Office suggesting that in the light of insufficient evidence, that a homosexual identity could be established through medical examination (in particular anal examination).^[2] However, what is of particular importance is that during the Vraciu tribunal the special adjudicator proceeded to describe homosexuals in Romania and in the UK as belonging to a particular social group:

'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).

3.2

The Vraciu case can be described as initiating a case law tradition in the United Kingdom that was inconsistent with the tradition as exemplified in the Golchin case. These two case law traditions surrounding the social group status of homosexuals came into direct conflict in 1996 in the case of an Iranian Homosexual male, who I will refer to as S.^[3] Mr. S's case was heard by a Mr. Brown (Justice of the Peace), a Mr. Cadogan (Justice of the Peace) and the Chairman of the tribunal Mr. Whitaker, the only legally qualified member of the panel (Russell 1998: 136). During Mr. S's tribunal both Brown and Cadogan cited the Golchin case as being particularly relevant to their decision in that they found an unfavourable comparison between homosexuals and other 'traditionally understood' social groups such as caste or clan groups. Brown and Cadogan also stated that they were reluctant to criticise another country's Criminal Laws or the penalties imposed for their breach. They stated that it was outside their role to extend prosecutions for criminal acts into a Convention reason for asylum. Brown and Cadogan were also concerned that 'prosecutions for criminal acts' in other countries should not be extended into a Convention reason to seek asylum and apply for refugee status. Whitaker, on the other hand, dissented from Brown and Cadogan's decision. Whitaker focused on two significant questions:

• Would the applicant be prosecuted to the point of persecution as a result of his homosexuality if he were returned to Iran?
• Was it possible that homosexuals could be included in the Convention social group category?

3.3

Whereas Brown and Cadogan clearly sided with the Golchin decision, Whitaker favoured the Vraciu decision, in which homosexual social group membership was established as a result of their being a 'differently treated' 'special category' of person in both the United Kingdom and Romania. In answer to his two questions concerning the S case, Whitaker had the following to say:

'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.'^[4] (Whitaker, in Secretary of State for the Home Department v. 'S' (75394) 1996, unreported)

3.4

As a result of the dissension between the Whitaker, Brown and Cadogan, this case was referred to the Court of Appeal. I will return to the outcome of this case a little bit later. Before that however, I want to place developments within homosexual refugee case law in the UK (in the S case) within a wider international context.

Developments in International Refugee and Human Rights Law.

4.1

Since the mid-1980s questions of state persecution and human rights violations in relation to social group status begun to take centre stage in the USA, Canada and New Zealand. The origins of this intersection of refugee law with international human rights law can be traced back to a judgement made by the United States Board of Immigration Appeals in 1985 in a case entitled A Matter of Acosta:

'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).

4.2

The Acosta Judgement on what should constitute a Convention social group was taken up in the Canadian Supreme Court in 1993 in the case Canada (Attorney General) v. Ward. In the Ward case a comprehensive definition in the form of 3 possible categories for determining social group status was instituted. These were:

1. Groups defined by an innate or unchangeable characteristic.
2. Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association.
3. Groups associated by a former voluntary status, unalterable due to historical permanence.

   (Canada v. Ward 1993)

4.3

If we turn our attention back to the United Kingdom both the Acosta and Ward judgements concerning what groups and types of group memberships should be included in the Convention Social group were utilised in the S case preparation for the Court of Appeal. However, the case that was arguable most important for the S case preparations for the Court of Appeal was that of an Iranian homosexual's successful application for refugee status in New Zealand in 1995. In the GJ case, the Immutability criteria instituted in Acosta and Ward were utilised before the New Zealand Refugee Status Appeals Authority:

'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).

4.4

It was stated in the New Zealand judgement in Re: GJ that:

'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).

4.5

This decision thus contrasted with the Golchin decision discussed above where Mr Golchin was required to avoid prosecution/persecution through his own actions. The immutability criteria in the GJ case ruled that homosexuals should not be forced to forsake or change their behaviour to avoid persecution. It was on the basis of the Acosta, Ward and GJ cases that Mr S's lawyers submitted their 'skeleton argument' before the Court of Appeal in the United Kingdom, scheduled for November of 1996. However, this extremely strong case never reached the Court of Appeal. Prior to the court case Mr S was granted full refugee status, on the basis of political persecution as a result of his previous membership of the Iranian political organisation the Mojahedin. This was a rather unusual move especially since Mr S had made his application for refugee status on the grounds of a well-founded fear of being persecuted as a result of being a practising homosexual.

4.6

Malcolm Bryant (Mr. S's lawyer) described the Home Office's actions in this case as an attempt to avoid making an authoritative judgement on the issue of homosexuals being included in the Convention social group category. However, two years later, in 1998 such a precedent was set in the case of a 28 year-old Romanian homosexual Sorin Mihai. The granting of refugee status to Mr Mihai was on the basis that he was a practising homosexual in Romania and that as such he was a member of a particular social group with a well founded fear of being persecuted if returned to Romania.

4.7

Following on from Mihai decision, in a case heard in 1999, regarding the social group membership of women in Pakistan, the situation of homosexuals in United Kingdom's Refugee Law was clarified. That is, in the case of R v IAT ex parte Shah, the practice of focusing on the characteristics and behaviour of the individual (exemplified in the Golchin case) was once and for all shifted to focusing, in an appropriate evidence situation, on the state's treatment of social groups in the countries in question. In the Shah case Steyn LJ quoted the Acosta, Ward and GJ decisions concerning immutability in his assessment of who should, and in what circumstances, be included in the Convention social group definition. The reason Steyn LJ included homosexuals in his deliberation was to challenge the restrictive view in International Refugee Law that members of a social group should be a 'cohesive group' that emerged in a case heard in the USA in 1986 (Sanchez-Trujillo case). In the Sanchez-Trujillo case the United States Court of Appeals, held that 'particular social group implies a collection of people closely affiliated with each other.' According to Steyn LJ, the 'cohesive group' perspective established in the Sanchez-Trujillo judgement failed to include homosexuals. According to Steyn LJ, homosexuals, who were in his opinion, not a cohesive social group, could nevertheless, be included in a Convention social group under the immutability criteria that emerged in Acosta.

Conclusion

5.1

In this paper I have attempted to describe a narrative of inclusion and exclusion which has been played-out in different times and places within the discursive context surrounding the United Nations Convention Relating to the Status of Refugees 'social group' category. It is important to note that in this paper the justification why homosexuals should be excluded and then eventually included in the social group category was the result of connections being forged between two legal regimes, namely International Refugee Law and International Human Rights Law. What is perhaps surprising is that it is only in the Post-Acosta period (after 1985) that this intersection of these two legal regimes has occurred in the wider international context and only really in the late 1990s in the UK.

5.2

It is important to realise that this connection of legal regimes and the eventual inclusion of non-traditional refugees in the social group category were achieved by refugee law practitioners. These refugee lawyers and practitioners can be described as disrupting the institutionalised means of perceiving, comprehending and thinking Convention 'social groups', refugee identity, and what constitutes persecution. This was a political project orchestrated by a series of disconnected yet highly focused lawyer-practitioners, working in the context of International Refugee Law who can be said to resemble Foucault's description of 'specific intellectuals' (Foucault 1980). According to Foucault, the specific intellectual is a 'new' type of intellectual who performs essential critical work, they are essential critical workers, working within institutions and the practices therein. These specific intellectuals are practitioners or experts who are involved in a:

'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).

5.3

This 'battle about the status of truth' (Foucault 1980: 132) encapsulated in this narrative of homosexuals being excluded from, and included in, the social group definition, can be described as demonstrating a rather anti-foundational or multi-foundational politics forged from amongst the supra-national standards of International Refugee and Human Rights Conventions. The particular 'truth' of the immutability status that emerged here, is interestingly one that does not look to the past for cohesive origins or essentialist identities but defines immutability in terms of specific interpretations within a plurality of legal and human rights precedents.

5.4

What has been demonstrated here is that homosexuals and homosexuality can be described as providing a particular problem for refugee law, this was a problem that was all too easily resolved in tribunals by unfavourably comparing homosexuals against traditionally conceived racial, tribal, caste and clan 'minority groups'. As Richard Dyer points out:

'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).

5.5

Alongside the substantive themes of persecution, protection, inclusion and exclusion present in this paper, themes such as the visual and the visible and the social recognisability of the marks and markers of difference emerge as being significant in Refugee Law. These emergent discourses can be said to have initiated a discernible shift in refugee 'social group' determination procedures, especially in relation to questions surrounding immutability and identity within the discursive context of International Human Rights standards. It is clear that this shift from focusing on the characteristics and behaviour of the applicants to examining the characteristics and behaviour of the state towards certain social groups facilitated the appreciation rather than the negation of the particularity of the persecution 'non- traditional' social groups experience in societies. Perhaps as a result of this shift the threat of, and the fear of serious harm experienced by the members of certain social groups will no longer go unrecognised in UK Asylum and Immigration Procedures.

Notes

¹ There is no lesbian refugee case law, as yet in the UK to include in this analysis, lesbian cases also do not figure centrally in the wider analysis of the growing relationship between International Refugee Law and Human Rights Law. As a result this paper does not include any analysis of the experiences of lesbians, or how the differential construction of gender identity within the interpretation of the 1951 convention might affect women and men to different degrees. This is not to say that lesbians in the countries in question do not suffer from similar, and in some cases, more brutal levels of persecution than male homosexuals. For researchers interested in lesbian refugees a starting point might be Goldberg's (1993) article in which, due to the lack of published and unpublished decisions internationally in relation to lesbian refugee cases, Goldberg resorted to constructing a 'hypothetical case' of Tatiana, a Romanian Lesbian seeking Asylum in the USA. Other important resources are the Immigration and Nationality Directorate's, 1990 'Country Assessment' sections on Homosexuals (including homosexual men and lesbian women).

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).

Cases

Canada (Attorney General) v. Ward [1993] 4 D.L.R. 103 at 1; [1993] 2 R.C.S: 689.

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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Copyright Sociological Research Online, 2001