Roger writing the LAWmag
09
Aug 2012

The Refoulement of Gay and Lesbian Refugees in Europe

One Iranian woman's desperate claim for refugee status in Germany will soon resolve an extant and controversial legal issue raging in Europe. Refoulement - the return of an alleged refugee to his/her state of origin - might end up being the least of her troubles.

Special interest groups almost always exacerbate these legitimate public debates making it hard to separate the legal wheat from the political shaft, but the story of 27-year old Ms Samira Ghorbani Danesh serves to define the issue.

Ms Danesh is an Iranian lesbian who alleges that she escaped arrest in 2009 by Iranian police in James Bond style:

"At (a private gay and lesbian) party, I wanted to get a little air and I went out on the balcony. Looking down at the street (I) got the fright of (my) life: there were three dark cars lined up, and heavy-set men were getting out of them. Every kid in Iran knows these people - the secret police..."1

Danesh says her girlfriend was arrested and she hasn't seen or heard from her since.

Samira Danesh lesbian refugee clamant in GermanyMuslim law, Sharia or Islamic law towards homosexuality is barbaric, calling for incremental corporal punishments. The first level is being whipped 100 times. And that's just for lesbians. Gay men are fast-tracked to the death penalty.

Another take on the contemporary treatment of gays and lesbians in Iran can be found in F. v United Kingdom, a decision of the European Court of Human Rights:

"According to a sociologist specializing on Iran, the (Iranian) law stipulates that people engaging in sexual relations with a person of the same sex would only be put on trial if the prosecution can produce four righteous men who witnessed the sexual act, or one of the partners admits to having sexual relations with another man.... The sociologist stated that it would be suicidal to admit one’s homosexuality.....

"Although Muslim and Iranian laws punish homosexuality by death, in practice, it rarely happens, except in the cases of pedophilia. Homosexuality is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity. It would be repressed only when made public"

Ms Danesh says that she reasonably feared persecution and secretly fled Iran as soon as she found the money to get herself smuggled into Turkey. From there, she madeg her way to Germany were she asked for asylum and refugee status. At her immigration hearing, she made the not-infrequent argument that she faced arrest and torture if returned to Iran.

But the Court dismissed her application for asylum and refugee status. The decision of the German immigration court noted that:

"… she was unable to make the danger she would face in Iran believable…."

In plain language, she did not lead credible evidence of persecution or of precautions taken to avoid the obvious danger, of being discreet about her sexual preferences in Iran.

The argument went: by coming-out in Iran, she authored her own misfortune.

The German court suggested that she return to Iran and be discreet about her sexual orientation. She could, as presumably thousands of other gay Iranians do, live safely in her native country, either having no pleasing and meaningful sexual relationship (if she's even lucky to cloak-and-dagger her way to another lesbian), or keeping her sexual orientation in the closet; never coming-out.

The sexual orientation of an individual is not readily apparent on sight alone, presumably less so for lesbians cloaked in the dark full-body and facial coverings expected of Muslim women in Iran. There appears to be little doubt that the vast majority of gay people living in homophobic Muslim countries simply keep their lifestyles very carefully secret - a matter of avoiding persecution and staying alive.

The German Court's decision re Ms Danesh is not without precedent in Belgium2, Norway, Switzerland, Finland and Hungary. According to authors Jansen and Spijkerboer, one Hungarian Court suggested to a lesbian refugee claimant:

"If she would not make her lesbianism public, she would not have to fear the consequences of her behaviour."

In England, the issue seems to have been resolved. The legal doctrine known as the Anne Frank principle. It was described by Justice Pill of the English Supreme Court of Judicature, Court of Appeal in H.J. and Anor v Secretary of State for the Home Department, as follows:

"… the Anne Frank principle … would have been no defence to a (asylum) claim that Anne Frank faced well-founded fear of persecution in 1942 to say that she was safe in a comfortable attic. Had she left the attic, a human activity she could reasonably be expected to enjoy, her Jewish identity would have led to her persecution. Refugee status cannot be denied by expecting a person to conceal aspects of identity or suppress behaviour the person should be allowed to express."

cat and mouse - photo (c) FotoliaBut for German and other like-minded immigration tribunals in Europe, there ekes out a public policy slant to the conclusion that a gay lifestyle in a homophobic country is not sufficient to form the basis of a refugee claim, especially if the claimant has not been discreet in her lifestyle in her country of origin. The corollary of that would be feared drove of gay and lesbian refugee claimants from Muslim jurisdictions, causing an artificial change to the demographics of the receiving society. Presumably, the argument would continue, this would have some undetermined adverse effect on the receiving society.

It is a real person, Ms Samiri Danesh caught in the spider's web of a pending deportation order to Iran. She reacted desperately by lashing out in public. This decision was also an double-or-nothing approach because by bringing attention to her cause, she publicly criticized the government of Iran, a theocracy where apostacy (ridda) is even more harshly punished than a lesbian lifestyle.

As far as litigation strategy goes, her double-or-nothing gamble to go public exacerbated the danger to herself In Iran but, presumably, enhanced her standing as a refugee claimant in Germany.

Ms Danesh awaits the denouement of her legal case in a shelter in Bayreuth, Germany, as appeals continue.

In the meantime, according to the Los Angeles Time, a formal constitutional question has been put to the European Court of Justice which may conclusively resolve the issue:

"Can aliens with a homosexual orientation be expected to conceal their sexual orientation from others in order to avoid persecution?"

This case will soon play out in the German and European courts with potentially deadly consequences for this young lesbian. It is an unenviable and desperate situation. If she is deported to Iran, she will have the sword of Damocles over her every move. It would be a cat and mouse death game, certainly not conducive to healthy relationship opportunities homosexual citizens enjoy in most free and democratic societies.

Ms Danesh's case attracts comment on her legal decisions as she may have ultimately been the victim of two unusual if not poor choices, such as witness management. Under all the circumstances where she had truth in her soul, she should have been able to convince the German immigration tribunal of the legitimacy of a refugee claim. These determinations can mean life or death and have to be given that level of focus and preparation, not an easy thing to do on a legal aid budget.

That she was found not to be not credible reflects poorly on the claimant although in fairness, immigration tribunals are not all created equal. Any good lawyer will tell you that in a modern democracy like Germany where judges, the institutions and apparatus of justice are ubiquitous, there will be questionable decisions. C'est la vie. A lawyer faced with that reality doesn't sweat it or rant at a press conference. She prepares a rock solid appeal.

Ms Danesh's second gambit, going public, also appears curious albeit born of desperation. By pushing her case out into the public fora, this raises the angst of a government hell-bent on homophobia. If she then returns to Iran, she may be met by more "dark cars". Even if she is successful in Germany, the desperate call for a political solution may not serve her family in Iran well.

At the end of the day, the identity of Darth Vader in this saga is clear as it is dangerously Byzantine. Consider the words of Iranian president Mahmoud Ahmadinejad when he incredulously suggested, in a speech he gave at Columbia University in 2007:

"In Iran, we don't have homosexuals. In Iran, we do not have this phenomenon."

There may be some reason for Ahmadinejad's statement: gay and lesbians living in Iran may be one of three varieties: dead, flogged or hiding deep in some closet. None are likely to come out and be counted when the Iranian census guy knocks on the door.

For Ms Danesh, the legal dilemmas and especially the possibility of refoulement are not just unwelcome lessons of immigration law.

It could be the death of her.

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