Somewhere Over the Rainbow: Sexuality and Refugee Law

Abstract: A common issue of applications of international protection is the lack of physical evidence to substantiate the applicant’s claim. This issue is even more prevalent in cases concerning LGBTQ+ refugees since the requirement to prove ones membership to a particular social group is generally a request to substantiate the unverifiable. Therefore, the credibility assessment becomes a very important element when making decisions on international protection in LGBTQ+ cases. This thesis examines the legal requirements of being recognized as a refugee under international law, issues of evidentiary assessment and assessment of credibility as well as issues prevailing from each of these fields. Finding that the standards of proof used for LGBTQ+ applicants are high, and in part these applicants are expected to substantiate something unverifiable. However, as the main part of this study is to examine these requirements and standards from the perspective of the European Court of Human Rights, a case study, presenting a few LGBTQ+ cases, will be done in chapter 4. The analysis of these cases will consist of how the standards of proof are applied by the ECtHR in relation to the particularities of LGBTQ+ refugee claims found in the previous chapters. The main findings of this chapter is that the assessment of credibility has been very prevalent in the Courts decisions and that this assessment is largely based on expectations of the applicant’s behavior that have little or no certain basis in scientific research. Additionally, issues can be found in the Court not understanding the context in which the applicant made their statement, therefore arguing that certain indicators show that the applicant is not credible, even though the same indicators could support the applicant’s credibility.