Europe of Human Rights

Until now, the EU Asylum Qualification Directive 2004/83/EC of 29 April 2004[1] foresaw in art. 10 par. 1 (d) that “gender related aspects might be considered” by national asylum authorities when examining the potential persecution of specific social groups in their country of origin. Therefore, discretion was given to the authorities assessing the asylum claim, on whether to take into consideration the gender orientation or gender identity.

The Directive was perceived as a conservative instrument, which did not go much beyond the standards of the 1951 Geneva Convention relating to the Status of Refugees. Criticized by the academics and practitioners the Directive deserved finally a slight modification. The European Parliament during last plenary session, on 27 October 2011, adopted amendments to the Directive[2].

The new draft specifies that “gender related aspects, including gender identity, shall be given due consideration”. The text explicitly clarify that individuals claiming asylum due to persecution because of their sexual orientation and/or gender identity are covered by the concept of “asylum seekers with special needs”. Therefore, a particular vulnerability of lesbian, gay and transsexuals (LGBT) asylum seekers should be taken into consideration.

Such an explicit reference to LGBT asylum seekers will have an impact on the approach of asylum officers, on the competences of the person in charge of interviewing the asylum seeker and the need to guarantee the non-disclosure of personal circumstances to members of the family. The European Parliament yesterday’s vote should also be perceived as a response to the fact that LGBT people in many parts of the world are subjected to threats and their lives are regularly endangered. The Parliament gave a signal that EU is not indifferent to the recent grave events, such as the assassination of Noxolo Nogwaza (lesbian activist from South Africa) and David Kato (gay activist of Uganda) at the beginning of 2011.

The Lisbon Treaty, which came into force in 2009, reinforced the position of the European Parliament in the EU legislative process. Therefore, the Parliament vote should be taken seriously by the European Commission and the Council in further legislative works on the EU Asylum Qualification Directive.

The EU Member States (including Croatia, due to envisaged access in July 2013), would be expected to adapt their national law to the Directive. United Kingdom, Denmark and Ireland decided to opt out from the EU Asylum System and therefore will not be bound by the Directive.

Dominika Bychawska-Siniarska, Coordinator of “Europe of Human Rights”

[1] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

[2] Directive on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, a uniform status for refugees or for persons eligible for subsidiary protection, and the content of the protection granted.


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