Seeking Asylum in Europe: Delving into Sexual Orientation and Gender Identity Asylum Claims

Nuno Ferreira

The European asylum policy has been a battle ground on many accounts for many years. Neither the EU's Common European Asylum System, nor the role of the Council of Europe (and especially the European Court of Human Rights) in asylum matters, have been immune from criticism. This is also the case in relation to those asylum claims lodged based on one's sexual orientation or gender identity (SOGI). Indeed, SOGI asylum decisions of the Court of Justice of the EU in X, Y and Z and in A, B and C, and of the European Court of Human Rights in M.E. v. Sweden, have either not addressed the issues in question appropriately, or only addressed them in a partially satisfactory way. This is a significant issue: every year, thousands of individuals claim asylum in Europe based on their SOGI, and more often than not their claims are treated unfairly. SOGI asylum seekers face particular difficulties in establishing their claims and obtaining a positive assessment of their credibility. Furthermore, there are strong signs in several European jurisdictions that the SOGI dimensions of asylum-seekers' claims are treated in a particularly insensitive way, based on inappropriate legal, cultural and social notions.This paper explores how the European asylum system can treat SOGI asylum claims more fairly, by focusing on the policy and case law produced by the EU and the Council of Europe. The paper advances policy recommendations that address adequately the socio-cultural, gender identity and sexual diversity of asylum-seekers and their intersectional experience.

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