UNHCR publishes its Guidelines for claims to refugee status based on sexual orientation and/or gender identity

Recognizing that in many parts of the world, individuals experience serious human rights abuses and other forms of persecution due to their actual or perceived sexual orientation and/ or gender identity, UNHCR published this week its Guidelines for claims to Refugee Status based on Sexual Orientation and/or Gender Identity. The Guidelines seek to provide substantive and procedural guidance on the determination of refugee status of individuals on the basis of their sexual orientation and/or gender identity, with a view to ensuring a proper and harmonized interpretation of the refugee definition in the 1951 Convention.

The Guidelines encompass comprehensive analysis of the issues surrounding sexual orientation/gender identity claims, including the concepts of well-founded fear of persecution, laws criminalizing same sex relations, concealment of sexual orientation/gender identity, as well as their implications on the claim. The Guidelines further entail detailed definitions of the notions of “sexual orientation”, “gender identity”, “gay”, “lesbian”, “bisexual”, “transgender” and “intersex” but underline that not all applicants will self-identify with such terminology or may be unaware of it. Refugee claims based on sexual orientation and/or gender identity, according to the Guidelines, are most commonly recognized under the “membership of a particular social group” ground of the 1951 Convention but other grounds may apply depending on the political, religious and cultural context of the claim.  Importantly, the Guidelines also approach the issue of credibility, highlighting that the credibility assessment of the applicant’s claims should be conducted in an individualized and sensitive way.

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