ECJ declares preclusion periods for filing follow-up asylum applications as inadmissible8. October 2021
The ECJ thus confirms the approach/procedure that is also applied in Germany, according to which circumstances that were not presented in the initial application due to gross negligence, cannot be taken into account in the follow-up application. However, the Court clearly rejected the application of preclusion periods for the filing of follow-up asylum applications. EU member states cannot require asylum seekers to submit new information within a specific time limit, which starts to run from the moment this information is obtained. As a result, asylum authorities and courts may no longer reject follow-up applications by, for example, queer asylum seekers as inadmissible merely because they should have submitted them within a certain period. The three-month deadline previously applicable in Germany under Section 51 of the Administrative Procedure Act (VwVfG) is thus inadmissible for follow-up asylum applications.
The background of the submittal of these questions from the Austrian Administrative Court to the ECJ was the follow-up asylum application of an Iraqi refugee. He had already filed a first asylum application in July 2015, but did not come out as gay in the proceedings. His first application was therefore rejected in January 2018. In December 2018, he then filed a follow-up asylum application, this time citing as a new reason for seeking asylum that he was gay and therefore feared persecution in Iraq. It was only starting from June 2018 that he had realized that he could profess his homosexuality in Austria without fear of persecution. In January 2019, however, the Austrian Federal Office for Immigration and Asylum (BFA) rejected his follow-up application as inadmissible, upon which the Iraqi filed an appeal before the Austrian Federal Administrative Court (BVwG), which, however, in essence rejected it as well. He then appealed to the Austrian Administrative Court (VwGH), arguing that the new fact was not the homosexuality itself, but his now given ability to articulate it. The VwGH, in turn, decided to suspend the proceedings and ask the ECJ which conditions must be met for the admissibility of such a follow-up asylum application.
In its ruling of September 9, 2021, the ECJ strengthens the rights of queer refugees who did not come out in the initial procedure, although they were already aware of their sexual orientation or gender identity. If their asylum procedure is finally concluded negatively, they still have the chance to go through a follow-up procedure even months and years later, in accordance with the ECJ ruling. The prerequisite for this is that the refugees were not able to present their sexual or gender identity as a reason for flight in the initial procedure through no fault of their own. Queer refugees who did not come out in the initial procedure due to fear or shame should therefore make sure to show how this fear and shame made it impossible for them to present the true reasons for seeking asylum in the initial procedure when applying for a follow-up procedure. Since the vast majority of refugees coming to Germany come from countries where queer lifestyles are considered a crime, a sin, a disease or a disgrace by the majority society, it can be assumed that many queer refugees are not able to present their sexual orientation or gender identity at all in the initial proceedings.
Asylmagazin publishes again an issue with focus on LGBTI+16. September 2021
The issue 7-8/2021 is not the first time that the magazine Asylmagazin deals in depth with LGBTI+ asylum applications. Already in the issue 3/2013 and issue 12/2013, it published two articles by Nora Markard, which dealt with the case law surrounding the “discretion requirement”. In issue 10-11/2019 followed a first focus booklet on the topic of “Protection against violence, procedural guarantees and reasons for fleeing of LGBTI+ persons” with two articles by Alva Träbert and Patrick Dörr. In issue 3/2020, Philipp Braun, Patrick Dörr and Alva Träbert commented on two decisions of the German Federal Constitutional Court. In one decision, the Federal Constitutional Court had strengthened the rights of LGBTI+ refugees in asylum procedures. In the other, it had confirmed the inadmissibility of the “discretion requirement” and clarified that the application of the “discretion requirement” also to bisexual asylum applicants is not allowed.
Here you can find a list with the mentioned articles of the Asylmagazin:
Petra Sußner (2021): Das reicht (noch) nicht – Wo ist das Problem mit Heteronormativität im Asylrecht?, Asylmagazin 7-8/2021, 248-256. (online not yet available)
Patrick Dörr, Alva Träbert und Philipp Braun (2021): LSBTI*-Asylanträge und das widerspenstige »Diskretionsgebot« – Wie BAMF und Gerichte weiterhin höchstrichterliche Vorgaben unterlaufen, Asylmagazin 7-8/2021, 257-268. (online not yet available)
Philipp Braun, Patrick Dörr und Alva Träbert (2021): „Durch das Zwangsouting habe ich meine Familie verloren.“ – Outings queerer Asylsuchender durch Vertrauensanwält*innen des Auswärtigen Amtes, Asylmagazin 7-8/2021, 269-275. (online not yet available)
New Explanatory Videos Answer Asylum System Related Questions12. April 2021
To date, four of these explanatory videos have already been produced. They are available in Arabic, German, English and Persian. Staff members of the Rosa Strippe and/or visitors representing Senlima, the programme for LGBTI refugees and migrants in Bochum assumed the roles of voice over artists. “Our aim is to ensure that virtually all queer refugees have easy access to information covering the rights in the asylum process. Hence, our videos are not only available on the project website, but for instance also accessible on YouTube,” explains Lilith Raza of the Queer Refugees Deutschland project. The team plans to make explanatory videos available in additional languages on the LSVD project website, specifically in French, Russian, Spanish, Turkish and Urdu.
Links to more information:
- Detailed Legal Guide in German
- German Case Law with Reference to Specific Countries of Origin
- All Specialized Points of Contact for LGBTI Refugees in Germany
Four “Queer Refugees Deutschland” refugee activists in a debate with judges and attorneys1. April 2021
Patrick Dörr (LSVD federal board member) and Philipp Braun (former ILGA-Co-Secretary General) delivered the introduction and discussed numerous legal aspects with the 41 connected judges, attorneys and BAMF staff members, which time and again play a role in court proceedings combating negative notifications sent to lesbian, gay and bisexual applicants. Four queer activists, all of them members of the Germany-wide refugee network of the LSVD project “Queer Refugees Deutschland,” complemented the legal debate with reports on experiences made in their countries of origin and with the asylum process:
In this context, Ahmad Khalid* from Egypt described the massive problems he encountered during his hearing, especially with an extremely homophobic interpreter. He also recounted the systematic persecution of the LSBTI* Community by the Egyptian government. Apparently, the situation on location saw another catastrophic peak after a concert of the Lebanese band Mashrou‘ Leila in September 2017. Since then, the government has been taking systematic aim at the queer community.
Meri Petrosyan talked about the strongly embedded homophobic attitudes in her home country. Lesbians, gays and bisexual individuals are reportedly exposed to vast homophobic violence without any protection as a result. Accordingly, law enforcement is usually also homophobic and, as a rule, therefore provides no protections. In her experience, the BAMF does not actually acknowledge these societal realities in the relatively small country, where everyone knows everybody and where living under the radar is virtually impossible.
Pamir Ceyhan* from Iran described the immense persecution of queer individuals in Iran, where same sex activities between men can still result in the death penalty. Not only are numerous transgender people who do not wish to have surgeries performed subjected to operations, so are lesbians and gays who are forced to have surgeries and are mutilated by such interventions. Unfortunately, he and his Turkish husband subsequently ran into grave problems in Germany to be jointly recognized as a gay couple and therefore entitled to protection.
On the other hand, LSBTI activist Baküs Mejri experienced the positive side of the asylum process. In his presentation, he described primarily the interactions of the Tunisian police with queer individuals. Accordingly, it does not offer any protection against hostile violence against LSBTI persons and is even still using moral laws to randomly arrest individuals who are supposedly queer. While incarcerated, the prisoners are subjected to anal tests, which are internationally classified as acts of torture, with the aim of proving homosexuality, which is a fallacious supposition.
“With their four life stories, the activists have once again reminded us of what kind of lives lesbians, gays and bisexual persons are restricted to in many countries where they have to hide out from the government, society and frequently even their own families every single day,” observes Henny Engels, who also attended the event on behalf of the LSVD federal board.
*This is not the actual name of the individual, but an alias.