Inclusive guise of “gay” asylum: a sociolegal analysis of sexual minority asylum recognition in the UK
Olsen, Preston Trent
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The United Kingdom’s acceptance of lesbian, gay, bisexual, and transgender (LGBT) refugees has been heralded as a progressive shift in asylum law. Indeed, the scope for the protection of sexual minorities under the Refugee Convention has expanded. The interpretation of the Convention definition of refugee in Article 1A(2) has been continuously adapted, especially the “particular social group” (PSG) category as well as the recognised scope of “well-founded fear of being persecuted.” This thesis interrogates how “gay” refugees have been accepted under the Convention. The analysis considers the ways judicial decision-making has constructed the PSG and persecution of sexual minority asylum seekers. The sample consists of 22 appeals from 1999-2011 which were identified as major legal developments, beginning with the first significant recognition of “homosexual” refugees. Several additional tribunal determinations and key international cases are also considered. A socio-legal approach is taken to study the tensions between fluid sociological images of gender and sexuality and the fixed notions of identity found in the law (whether arising from individual cases, formal practice, or state imperatives). Through an examination of the legal discourse in the texts examined, the research deconstructs the jurisprudential debates in order to assess their impact on sexual minorities seeking asylum. This contextual, rather than doctrinal, approach reveals how the jurisprudence often obscures sociologically problematic assumptions made by adjudicators. This analysis offers an original contribution, concluding that UK protection is grounded on the assumption that sexual and gender identity are “immutable.” Far from opening the UK to persecuted sexual minorities, the prevalence of this assumption significantly narrows the apparently “inclusive” construct of the refugee. Building on the findings, the thesis proposes that adjudication should focus on the persecutory intent to suppress non-conforming acts and identities (or norm deviance) in order to identify sexual minority refugees rather than the categories of LGBT. Additionally, framing determination in the terms of relational autonomy develops a better understanding of the conditions necessary to realise a non-conforming sexual and gendered life free of persecution. The concept of norm deviance decentres the assumption of a knowable truth of identity, and relational autonomy asserts that the deprivation of self-determination and rights to relate may constitute a well-founded fear of persecution.