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Improving SOGI asylum adjudication: putting persecution ahead of identity
journal contribution
posted on 2023-06-10, 00:25 authored by Moira DustinMoira Dustin, Nuno FerreiraNuno FerreiraThis article addresses the concern that decision-making in sexual orientation or gender identity (SOGI) asylum claims in Europe is often unfair, and that one way to remedy this is by improving the guidance provided to decision-makers when interpreting the Refugee Convention in respect of these claims. We begin by interrogating a number of different decision-making guidelines and models to assess whether they contribute to a fairer asylum system. We show that, for claims based on SOGI, success invariably depends on the decision-maker’s assessment as to whether a claimant is, or would be perceived in their home country to be, a member of a SOGI minority, and so belongs to a Particular Social Group. Such focus risks neglecting analysis of the actual risk of persecution. We set out our own recommendation for a fairer approach based on prioritising SOGI-specific Country of Origin Information and the risk of persecution, rather than focusing on whether applicants are ‘genuinely’ members of a SOGI minority. We argue that this will lead to fairer outcomes that are less likely to be overturned on appeal and more consistent with the Refugee Convention’s spirit and letter.
Funding
SOGICA - Sexual Orientation and Gender Identity Claims of Asylum: A European human rights challenge; G1968; EUROPEAN UNION; 677693
History
Publication status
- Published
File Version
- Published version
Journal
Refugee Survey QuarterlyISSN
1020-4067Publisher
Oxford University PressExternal DOI
Issue
3Volume
40Page range
315-347Department affiliated with
- Law Publications
Full text available
- Yes
Peer reviewed?
- Yes
Legacy Posted Date
2021-07-21First Open Access (FOA) Date
2021-09-14First Compliant Deposit (FCD) Date
2021-07-20Usage metrics
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