Asylum for gay Afghan man sets precedent

For the first time ever, the refugee appeals board granted asylum to a gay man because of the risk of persecution his sexuality poses if he returns home

An Afghan man has been granted asylum because he is gay. According to the man’s lawyer, this week's decision was a precedent-setting judgement for homosexual asylum seekers who risk persecution if they return home.

“People normally have to demonstrate they are being persecuted in their home country in order to be granted asylum,” lawyer Kåre Traberg Smidt told Politiken newspaper. “They needed to be able to show they had actually experienced problems.”

While in Afghanistan, the man in question did not experience any persecution due to his sexuality. But in granting him asylum, the refugee appeals board, Flygtningenævnet, ruled that there was sufficient grounds to argue that the man would face a high risk of persecution if he returned.

Flygtningenævnet reconsiders all asylum cases that are first rejected by the Immigration Service (Udlændingestyrelsen), except those that are considered ‘manifestly unfounded’. In the past, the board emphasised that individuals must have actually faced persecution in order to qualify for asylum. Belonging to a persecuted group was not enough to earn asylum.

But according to Eva Singer from the Danish Refugee Council (DRC), the decision indicates that Flygtningenævnet is starting to shift its perspective.

Last September, it granted asylum to an Afghan man who had converted from Islam to Christianity while in Denmark. Flygtningenævnet argued that the man would face persecution if he returned to Afghanistan, where people who abandon Islam are considered ‘apostates’ and may face the death penalty. The board emphasised the fact that the while the man could practise Christianity in private he would not be able to practise it openly, which the board considered a basic human right.

Historically the board has argued that individuals should hide their sexuality or religion if it is controversial in their country of origin. But with this week's decision, the board appears to have changed its perspective and acknowledge that it may be too much to ask someone to hide central aspects of their personality in order not to be targeted.

“The verdict supports the view that individuals may be persecuted because of their background, in this case that the man is a homosexual, which is so tied into his personality that it is too hard to hide,” Singer told The Copenhagen Post.

Many countries around the world persecute homosexuals. The Ugandan parliament has been attempting to pass laws that would subject homosexuals to the death penalty. In Russia, new laws outlawing “homosexual propaganda” were recently passed which essentially outlaw homosexuals from kissing in public.

According to Singer, however, the particularly high risk to homosexuals in Afghanistan played an important role in the appeals board's decision and individuals from lower-risk countries may not necessarily be so lucky.

Singer added that it was unlikely that asylum seekers would cynically attempt to take advantage of the ruling by either pretending to be gay or by changing their religion in order to increase their chances of being granted asylum.

“You always have to assess the legitimacy of someone’s claim, and I think the number of people making these claims won’t be that big,” Singer said. “If people face risks because they are homosexual, then we should offer them protection. A person’s sexuality is such a big part of their personality, I don't think that people will take lightly claiming that they are homosexual."

According to Smidt, the verdict may make it easier for individuals such as Guatemalan trans-woman Fernanda Milan to be granted asylum. Milan's application was initially rejected but she was saved from deportation after a last minute intervention from LGBT Denmark, which gathered documentation proving the risk to her life if she returned.

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