Maverick Citizen

MAVERICK CITIZEN OP-ED

When stereotypes, misconceptions and Wikipedia decide the fate of LGBTQI+ asylum seekers

Our review validates what LGBTQI+ asylum seekers have been saying for years — it suggests that these individuals are being denied administrative justice, be it due to direct discrimination or procedural errors. Our study indicates that the South African state is falling short of its domestic and international obligations.

“A person who is gay would normally not be in the company of girls. That on its own, [sic] contradicts [the applicant’s] claim that he is gay. … In addition to that he claimed that he was in pain after he had been raped. Consequently he would not have chosen to be a gay if indeed he was in pain after that rape incident. … There is no credibility in this application. The application is fabricated. … Zambia is a Christian nation and as such the citizens of the country live by the Christian values. The applicant would not have become a gay if he was indeed a Christian. He would have adhered to those values.”

These words are taken verbatim from Anold Mulaisho’s refugee status denial letter. Anold came to South Africa in search of protection, having fled Zambia after a lifetime of homophobic abuse. When submitting his asylum application, Anold bravely disclosed multiple experiences of oppression, including family disapproval, schoolyard bullying, verbal harassment, physical violence and sexual assault. This direct persecution was compounded by an ever-present threat of arrest under Zambia’s anti-sodomy laws.

Anold’s fear of state intimidation, criminal prosecution and even imprisonment were well-founded: Zambia has repeatedly used its laws to punish citizens presumed to be lesbian, gay, bisexual, transgender or intersex (LGBTI+). In November 2019, for example, the Lusaka High Court sentenced two men, Japhet Chataba and Steven Samba, to 15 years’ imprisonment for engaging in consensual sexual activities. Zambia’s entrenched culture of homo/transphobia can also be seen in frequent anti-LGBTI+ comments by political and cultural leaders, as well as the seeming impunity with which anti-LGBTI+ violence is carried out. Yet, in spite of this overwhelming contextual evidence corroborating Anold’s personal testimony, his application for refugee status was deemed fraudulent and rejected.

Anold’s experience of the South African asylum system is, regrettably, far from unique. Over the last decade, researchers, journalists and activists have catalogued the incessant violence and discrimination to which LGBTI+ asylum seekers are subjected. Perhaps the most prominent theme in this literature is the difficulties LGBTI+ asylum seekers face when approaching the Department of Home Affairs (DHA).

Experiences of bribery, apathy, disdain, ineptitude, mockery and intimidation are commonplace, as are stories of being disbelieved by Refugee Status Determination Officers (RSDOs) who hold prejudicial beliefs.

Despite the frequency and consistency with which these issues have been raised, the South African government has largely dismissed LGBTI+ asylum seekers’ complaints as fabricated or overblown, while at the same time restricting researchers’ access to data that might verify discriminatory practices. By ensuring the available evidence is anecdotal (i.e. coming from those on the receiving end of mistreatment), DHA is able to discredit and downplay the severity of this problem.

It was this context that inspired us to review refugee status denials involving sexual orientation or gender identity (SOGI). In addition to providing “credible” evidence, we hoped the study would uncover shortcomings in the adjudication of SOGI-based claims.

To the best of our knowledge, we were able to collate the largest sample of SOGI asylum documents ever compiled in South Africa. In total, we analysed 67 refugee status denial letters, issued on behalf of 65 applicants, between 2010 and 2020. These adjudications were authored by 32 RSDOs working at five Refugee Reception Offices (RROs): Cape Town, Musina, Port Elizabeth, Pretoria and Tshwane. Where possible, we supplemented the denial letters with information from other legal documents, including asylum permits, appeal affidavits and high court judgments.

Our review validates what LGBTI+ asylum seekers have been saying for years — it suggests that these individuals are being denied administrative justice, be it due to direct discrimination or procedural errors. Overall, the study indicates that the South African state is falling short of its domestic and international obligations. Among other findings, the analysis confirms the use of illogical and unsound reasoning when adjudicating SOGI asylum claims, the incorporation of erroneous information into status determinations, a reliance on stereotypes when assessing applicants’ credibility and egregious misapplications of accepted legal standards. The prevalence of these issues across the sample points to systemic failures within DHA’s handling of SOGI-based asylum claims.

This is not the first research to draw attention to defects within the asylum system. Pioneering work by Roni Amit, Ingrid Palmary and others has revealed myriad obstacles to refugee protection in South Africa. Our analysis detected similar trends to those identified in earlier studies, such as RSDOs basing credibility assessments on personal opinions or irrelevant details, and even cutting and pasting text between adjudications, a practice that suggests inadequate consideration of individual circumstances.

In addition to these common procedural shortcomings, we identified barriers specific to SOGI-based claims, most of which involved gross misconceptions about sexuality and gender. These were often accompanied by confusion over the socio-legal challenges facing LGBTI+ people on the African continent, including instances where RSDOs seemed unaware of (or willfully ignored) persecutory laws and practices.

One of the dominant trends was the tendency of RSDOs to dispute the credibility of applicants’ identities rather than the substance of their applications – in other words, RSDOs decided that the individuals in question were not “genuine” LGBTI+ persons. This suggests a pervasive belief that asylum seekers are trying to exploit South Africa’s commitments to sexual and gender rights.

Time and time again we found evidence of SOGI-based claims being denied because the applicant did not fit with RSDOs’ assumptions. Many appear to be under the misapprehension that LGBTI+ people can’t be religious, have children, or engage in different types of romantic and sexual relationships over their lifetime.

Similarly, there seems to be confusion regarding different identity categories and modes of expression, leading to an expectation that “real” LGBTI+ applicants present in ways that visibly subvert gender norms.

RSDOs also appeared suspicious of applicants who hadn’t publicly divulged their identities – despite their having lived in intensely hostile environments – while also bizarrely encouraging those who had come out or been outed to return home and act more discreetly.

Sometimes the reasons given for a negative credibility assessment were so preposterous that they beggar belief. This is perhaps best illustrated in the quote above, in which the RSDO accused Anold of lying about his sexual orientation because he didn’t enjoy being raped. Such a conflation of consensual and non-consensual sexual acts is not only offensive but also in violation of international legal norms, including SOGI asylum assessment guidelines issued by the United Nations High Commissioner for Refugees.

Another deeply concerning trend involved the misuse of evidence during the determination process. This ranged from blatant factual errors (e.g. false claims about the presence of anti-LGBTI+ laws) to illogical reasoning (e.g. an RSDO acknowledging an applicant’s experiences of persecution and yet denying the claim anyway), to relying on “evidence” that wouldn’t be considered reputable by any court (e.g. basing determinations on Wikipedia entries), to incorporating information about the wrong socio-legal context (e.g. muddling up the applicant’s country of origin).

These are only a few of the legal and procedural shortcomings identified by our review. Each one is a cause of concern – and even more so when considered collectively. Very rarely was an LGBTI+ applicant denied refugee status based on just one legal or procedural error. Indeed, there were numerous examples of protection being denied due to multiple misapplications of law.

Two examples illustrate the degree to which evidence is being mishandled in SOGI-based asylum adjudications. In one case, the RSDO first copied and pasted text from a country report on Ghana and then tried to hide this trick by changing “Ghana” to “Cameroon”. This is despite the fact that the asylum seeker in question comes from Central Africa. It is hard to see this action as anything but intentionally deceptive: the RSDO attempted to conceal the fact that “evidence” used to justify a denial related to the wrong country, yet they were so inattentive to detail that they attributed it to a different country entirely.

Similar practices were evident in a case involving a gay man from Cameroon, whose application was denied on the basis of Wikipedia and a report on Uganda – again, the wrong country. Worryingly, the sources of this information weren’t indicated by the RSDO and were only uncovered when we did a Google search using text from the denial letter. The use of inaccurate, inapplicable or partially relevant information, combined with a failure to cite evidentiary sources, not only undermines the prospect of a fair administrative process but also makes it almost impossible for an applicant to prepare an appeal.

These are only a few of the legal and procedural shortcomings identified by our review. Each one is a cause of concern – and even more so when considered collectively. Very rarely was an LGBTI+ applicant denied refugee status based on just one legal or procedural error. Indeed, there were numerous examples of protection being denied due to multiple misapplications of law.

Anold is one of these people. The RSDO considering his application was not only ill-informed about sexual and gender diversity but also lacking the legal knowledge and research skills to fairly adjudicate a claim of this nature. Although it is impossible to determine RSDOs’ exact motivations from textual analysis, it doesn’t seem unreasonable to assume that some hold prejudicial views that undermine their ability to execute their duties.

Again, Anold’s case offers a disturbing example: the RSDO adjudicating his claim relied heavily on harmful stereotypes and personal beliefs, thereby denying Anold a fair process.

Unfortunately, our study is unable to tell us everything about the state’s treatment of LGBTI+ asylum seekers. Our dataset is relatively small and is skewed towards applications lodged in Cape Town between 2011 and 2014. In some ways, this can be attributed to our sampling strategy, but it also speaks to larger shifts in South Africa’s asylum system, such as the closure of the Cape Town RRO to new applicants in July 2012.

While these spatial and temporal limitations are important to acknowledge, they do not invalidate the urgency of our findings. Asylum applications in South Africa often take years to be processed, and a number of applicants referenced in our study continue to wait for judicial appeals. Thus, the shortcomings identified above remain relevant to LGBTI+ people presently in the asylum system, as well as to those preparing to lodge an application or appeal.

It must also be noted that the trends identified here are driven by myriad factors, not all of which can be attributed to homo/transphobia. RSDOs perform their jobs under taxing conditions, facing both general challenges (inadequate staffing levels, pressure from management to rush determinations, etc) and SOGI-specific issues (inadequate sensitisation training, language and/or cultural barriers, etc).

It would also be remiss of us to ignore recent efforts by the state to address corrupt practices and bureaucratic delays within DHA. However, these observations do not excuse South Africa from meeting its domestic and international obligations. For those on the receiving end of prejudicial treatment or administrative errors, this is more than a question of “shortcomings” — it can mean the difference between life or death.

DHA’s refusal to release disaggregated statistics makes it impossible to determine how many times the principle of non-refoulement has been violated in relation to LGBTI+ asylum seekers. Non-refoulement is at the heart of human rights law. It prohibits states from transferring or returning people to countries where they face a reasonable risk of persecution or degrading treatment.

Given the findings of this and other studies, it is likely that many LGBTI+ persons have been returned to countries where their human rights and personal safety are in grave danger. This is why the South African government must act immediately to address institutional discrimination against LGBTI+ asylum seekers.

Overcoming the procedural obstacles listed above won’t be easy, but by partnering with SOGI asylum experts, legal practitioners and civil society, DHA can drastically improve the provision of care to LGBTI+ persons seeking safety. All people, regardless of their gender, sexuality, nationality or documentation status, deserve access to fair, just and transparent legal processes. This is not some lofty ideal but rather the foundation of South Africa’s incredible Constitution.

It is our hope that the findings of this review will accelerate efforts to protect some of the most vulnerable individuals in our society. DM

The full report can be downloaded here.

This article is based on research conducted by the Legal Resources Centre (LRC), the Women’s Legal Centre (WLC), the African LGBTQI+ Migration research Network (ALMN), and People Against Suffering, Oppression and Poverty (PASSOP) for the public launch of their new report: “LGBTI+ Asylum Seekers in South Africa: A Review of Refugee Status Denials Involving Sexual Orientation and Gender Identity”. The launch is on 29 April 2021 from 14:30 to 16:00. Registration is at https://tinyurl.com/LGBTrefugee

John Marnell is a PhD fellow at the African Centre for Migration and Society and is co-coordinator of the African LGBTQI+ Migration Research Network. His upcoming book, “Seeking Sanctuary: Stories of Sexuality, Faith and Migration”, will be published by Wits University Press in August 2021.

B Camminga is a post-doctoral fellow at the African Centre for Migration and Society and is co-coordinator of the African LGBTQI+ Migration Research Network. Their most recent book, “Transgender Refugees and the Imagined South Africa: Bodies over Borders and Borders over Bodies”, was published by Palgrave Macmillian in 2019.

Mandivavarira Mudarikwa is an attorney at the Women’s Legal Centre, specialising in sexual and reproductive health rights.

Amy-Leigh Payne is an attorney at the Legal Resources Centre in Cape Town. Her work focuses on education rights and ensuring equality and non-discrimination of women, children and LGBTQI+ persons.

Miriam Gleckman-Krut is a sociology PhD candidate at the University of Michigan.

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