The credibility assessment of lgbtqi asylum seekers in the European Union – the procedural approach in Hungary in relation to the lgbtqi equality as a core value of the European Union



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The title of my thesis is: The credibility assessment of LGBTQI asylum seekers in the European Union – the procedural approach in Hungary in relation to the LGBTQI equality as a core value of the European Union.
With this title my aspiration was to encompass all the relevant aspects that Iexamined/scrutinized in the paper.


  • First of all, since the credibility of applicants is often decisive during the asylum procedure, conducting the assessment in a sufficient and effective way is more than essential. Credibility determination is basically weighing the applicant’s statement and other evidence depending on their availability in order to make the right decision about granting asylum/refugee status.




  • Furthermore, sexual orientation and gender identity are getting more and more relevant for asylum procedure and it’s proved amongst others by the landmark research report “Fleeing Homophobia” which estimated that every year approximately 10 000 asylum-seekers arrive and submit a request for asylum based on their sexual orientation or gender identity as qualifying circumstance in Europe. In addition, the significant advancement of gay and trans rights, as well as a fast-growing social acceptance of gender diversity shift/ are giving a spotlight to the issue of the LGBTQI refugees.



  • As for the chosen country, I picked Hungary because on the one hand this is my home country, and I dare to state that I profoundly know the actual/real situation and the general approach of the society towards the LGBTQI communities which is not necessary and apparently transmitted/known outside of the country, and on the other hand, since I’ve written about the credibility assessment in Hungary before, within the course of International Migration Law and I also wrote about the effective remedy in asylum procedure within the course of Civil Procedure, I was already convinced that the practise of this country can raise further interesting research questions and I found it exciting to immerse in it.

In the following few minutes I would like to give a brief summary of each chapter to outline the key findings of the paper.



As for the structure of the thesis, I divided it into 4 main chapters.

  1. Chapter I

is a kind of introduction – since I had to cut the original introduction part which was about the relevant legislation at EU and national level.

So it still serves as an introduction which reveals the difficulties/problems that LGBTQI persons - and not only refugees – have to face and what are those aspects/factors that play prominent role in the fact that these people belong to a particular social group which is treated as vulnerable from multiple perspectives.



Regarding the reasons of the difficulties, the paper found that the majority of countries which were affected the most by the massive influx of immigrants around 2014/15, were not prepared to this, thereby couldn’t handle/ deal with the increased number of applications and the special position of certain groups of refugees in an effective way.1

  1. Chapter II

mainly raises the problems in connection with persecution. The LGBTQI refugees are at a high risk compared to other groups of refugees, due to their special needs – special needs are rooted in vulnerability and frequent negative prejudice. Thereby, they are often challenged from the very beginning of the asylum procedure – starting from the questioning phase to the assessment of the evidence. 2

As the paper details, both discrimination and stereotyping have remarkable impact on the outcome of the applications submitted by LGBTQI refugees, since they encourage / sometimes indirectly force the claimants to conceal the real reason of their persecution. This shows/underpins that adjudicators tend to decide in a superficial way with lacking awareness of the particular gender-related issues and this is why the importance of the objective and unbiased approach from the side of adjudicators is emphasized. In order to eliminate this conundrum, versatile strategies should be developed and utilized, such as training modules providing enlightenment as to the characteristics of this particularly vulnerable community. – But these are detailed in Chapter 4.


  1. Chapter III

focuses on the interview phase of the assessment procedure which, if the refugee is not able to provide material evidence, is indispensable, thereby the importance of the interview revalues. During the whole interview part, highly specialized/well-trained staff which is able to recognize the true gravity of the difficulties/burden faced by refugees and see the nexus/correlation between the reality and the statement is a desired condition such as the supportive, polite and open atmosphere which can spread tranquillity and confidentiality.

During the research and from the analysis of various cases, I found that the success of credibility determination depends not only on the person of the interviewer but also to a large extent on the way how the interview is conducted and the nature of the questions asked. To guarantee that the interview is as effective as possible, a balanced combination of open and closed questions should be provided from the authority’s side.



--

One of the questions in the case of burden of proof is the proving obligation lies on which party.


First of all, it’s worth to note that the applications are ideally supported by both oral and written evidence. Submitting such evidence is basically the central point of the burden of proof.3
Material facts are the very core of the application. The question is what kind of elements are material for granting international protection? According to UNHCR, material facts involve personal circumstances such as gender, nationality, arrests, sexual orientation, participation in social life of LGBTQI communities. The provided facts have to be examined and assessed by the adjudicators according to different aspects, for example whether these are reasonably detailed and consistent with the generally know information of the certain country of origin.

Medical examination is a way how material evidence is collected. Since the documentary evidence is usually not available, medical findings can effectively contribute to the justification of such a statement.



  1. Chapter IV - Good practises

The last chapter gives examples to existing and well-working good practises from different Member States to show that the even though the current legislative aspirations and priorities of the EU don’t point to that direction which could be welcoming to such group of asylum-seekers, but the relevant initiatives at Member State level is certainly realistic and often effectively supported by existing NGOs.

1 Moreover, the States’ practises show such a divergent picture in dealing of this delicate issue. For example in Hungary the so-called migration mass implied/triggered a highly distant attitude towards the refugee issue. However it’s interesting to note that, the Hungarian Asylum Act recognizes the vulnerable persons with special needs as ”persons with special needs” and, moreover, it provides a favourable procedure for them in theory, but it does not contain a procedure specifically designed to identify vulnerable refugees in practise. / in practise there is no provision which would guarantee the enforcement of it. This stems from, on the one side, the relatively late accession to the EU, therefore their refugee-relating practise hasn’t been ready to the number of refugees that arrived, on the other side, I believe that social and cultural pressure from the media and political communication resulted in a different understanding of the refugee concept.

2 Persecution itself is not regulated explicitly in the Refugee Convention, however the QD (2011/95/EU) provides that persecution is any act can be regarded as persecution if severely violate human rights. The question is how can it be determined when the severity of an act is enough to constitute persecution? Well, it’s always the matter of discretion. In regards to this, the paper made a distinction between discrimination and persecution. While the former is considered rather a general violation of human rights, therefore not necessary constituting basis for the well-founded fear of persecution, in the case of latter, the liability of the State for failing to provide efficient protection represents a generating factor.

3 Receiving refugee status is primarily in the interest of the refugees thereby even though it is an elective rule, the claimant is responsible for the quality of the proof and he/she should explain the normative reasons. This idea has been supported and confirmed by the ECtHR case law as well. In nutshell, the person making allegations has to take care of the accuracy and the quality of the statements.



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