Gays, lesbians and transgender people who leave their home country due to discrimination and persecution and apply for asylum in Germany cannot be sure of being recognised. At a panel discussion organised by the Lesbian and Gay Association in Germany on 27 January, the reasons and obstacles were explained and demands formulated. By Sophie Neuberg and Susanne Reuber
First the good news: since a decision by the Federal Administrative Court in 1988, homosexuality can be recognised as a political reason for asylum in Germany.
At the time, the court ruled quite progressively that lesbians and gays with "irreversible, fateful homosexual imprint" are entitled to asylum if they are in danger of being punished with severe corporal punishment or the death penalty if they return to their home country.
"What is an irreversible, fateful homosexual imprint?"
However, there are also many difficulties associated with this positive judgement. What, for example, is an "irreversible, fateful homosexual imprint"? And above all: how can it be proven? For example, explained psychologist So-Rim Jung from the LSVD (Lesbian and Gay Association in Germany) during the panel discussion "Situation of homosexual asylum seekers in Germany", a refugee may have to submit a psychological report confirming this fact.
However, such an expert opinion is often far too expensive for refugees and there is no medical "proof" of homosexuality of any kind. Nevertheless, lawyer Dirk Siegfried reported that the expert opinions are generally favourable.
The formulation of "irreversible imprint" was a step forward in 1988, as the Federal Administrative Court wanted to express that homosexuality - like nationality or ethnicity - could be regarded as an unchangeable fact that justifies the right to asylum.
Today it sounds absurd when refugees have to prove their homosexuality, but he has hardly ever experienced a negative report, reported Dirk Siegfried: "Asylum procedures usually fail for other reasons," said the lawyer.
First and foremost, it is difficult for most people seeking help to get to Germany in the first place. The land route is out of the question, as Germany's neighbouring countries are all considered safe third countries to which refugees can be deported immediately. Only very few people are granted asylum by sea either, leaving only the air route without a stopover in a third country as an option.
Refugees often do not feel able to tell an official about their sexual orientation straight away
Another problem is that asylum seekers are obliged to present all their reasons for fleeing in detail at their first interview with the Federal Office for Migration and Refugees. Shortly after their arrival, however, gay and lesbian refugees often do not feel able to tell an official about their sexual orientation. If they only present this reason later in the proceedings, they are often not believed.
Once someone has actually managed to apply for asylum, the decision of the Federal Administrative Court in 1988 leaves a lot of room for interpretation in several places, for example when it comes to the type of persecution threatened in the home country.
Unfortunately, a lot can depend on which court in Germany makes the decision and how the situation in the refugee's home country is assessed by the Foreign Office and the court in each individual case. For example, gays and lesbians are sometimes expected to live their homosexuality in secret.
It is also assumed that the criminal prosecution of homosexuality is not actually applied in the refugee's home country. Sometimes the German courts also rely on statements by the Foreign Office, according to which there are meeting places for homosexuals or a scene in the country in question. This leads to the conclusion that homosexuals can get along there - along the lines of: "A gay man doesn't have to walk around Tehran in high heels" - and that with a little discretion it would be okay.
Going to the registry office can be a trap for asylum seekers
Asylum seekers who want to enter into a registered partnership with their German partner can also get into trouble at the registry office because they are assumed to want to secure their residence in this way. Both the registry office and the foreigners authority are at risk of deportation because the registry office is authorised to inform the foreigners authority if there is any suspicion of a fictitious marriage.
Both the panellists and the audience often had to shake their heads at these explanations, especially at the idea that German courts would find it reasonable to live one's homosexuality in secret under threat of the death penalty (as in Iran).
However, that is not all that can turn out to be a problem in the asylum procedure. The severity of the impending punishment and the reasons for the persecution also play a role. This also has to do with the 1988 decision: At the time, the Federal Administrative Court expressly did not want to risk portraying Section 175 of the German Criminal Code, which was still in force in the Federal Republic of Germany at the time, as political persecution of homosexuals. It was therefore specified that persecution on the grounds of a violation of public morality was not sufficient to justify the right to asylum.
Political demands
This means that the courts have a lot of room for manoeuvre when it comes to making decisions and, accordingly, little security for the asylum seekers, who are subject to the so-called residence obligation for the entire duration of the procedure. This means that they are not allowed to leave the district or administrative district in which the foreigners authority responsible for them is located.
In addition, they have to live in a centre for asylum seekers, regardless of whether they could possibly stay with relatives. In the centres, they are often the target of discrimination and abuse, as homophobia is not uncommon among asylum seekers either.
At the end of the discussion, lawyer Dirk Siegfried summarised the most important political demands arising from the current situation:
- Abolition of the residence requirement
- Legislator's decision that the courts may no longer require anyone to conceal their sexuality
- Admission by the Federal Republic of Germany and/or by a federal state of certain people who are personally threatened or of people from certain regions by offering these people a visa for "reasons of international law or urgent humanitarian reasons" (the Federal Ministry of the Interior is responsible for this, § 22 and § 23 Residence Act).
Katayun Pirdawari from the LSVD board concluded by appealing to the gay and lesbian scene to consider the immense difficulties, insults and pain that refugees from Muslim countries in particular face when they cite homosexuality as a reason for fleeing. She urged us to openly accept these refugees and believe them, even if their appearance or demeanour does not match our local expectations.
More information on this topic:
– www.lsvd.de
– "Fleeing Homophobia" by Sabine Jansen and Thomas Spijkerboer, COC Nederland and Vrije Universiteit Amsterdam, September 2011 (comparative study on asylum practice in the EU, available for free download in various languages)
