Do the Challenges of LGBTQ Asylum Applicants Under Dublin Register With the European Court of Human Rights?

Abstract

Evidence suggests that Europe’s Dublin Regulation is increasing the precarity of lesbian, gay, bisexual, transgender, and queer (LGBTQ) asylum applicants. Dublin allocates responsibility for examining asylum claims between EU Member States. The European Court of Human Rights (ECtHR) guides the obligations of States under Dublin. Increasingly, the ECtHR draws on the concept of vulnerability to frame the experiences of asylum seekers. Vulnerability purportedly functions for the ECtHR as a lens through which the harm experienced by asylum applicants is magnified, enabling it to better recognize human rights violations. Nevertheless, the ECtHR’s vulnerability lens may be distorted by hetero- and cisgender normativity. We explore some implications of the ECtHR’s assumptions for how the vulnerabilities of LGBTQ asylum seekers in Europe under Dublin register with the ECtHR. We suggest that the combined frameworks of intersectional invisibility and layers of vulnerability can improve the ECtHR’s capacity to understand how LGBTQ asylum applicants may be particularly vulnerable under Dublin.

Promoting Human Rights standards for lesbian, gay, bisexual, and transgender people from the perspective of International law

“…between men and women. For example, in Promoting Human Rights standards for lesbian, gay, bisexual, and transgender people from the perspective of international law Bottoms v. Bottoms a lesbian mother was denied custody of her son because of his sexual orientation and she was only allowed to visit her son twice a week, but was not allowed to take him home or introduce him to his partner (Wieland & Alessi, 2021). Kay Bottoms is suing her daughter, Sharon Bottoms, for custody of Sharon Bottom's son, Tyler Doustou; The court ruled that Sharon Bottoms was an unfit parent and Kay Bottoms was granted custody of her grandson.…”

A Typology of the Court’s Approach to Vulnerability under Article 3 ECHR

“…In this regard, the Court ' s vulnerability jurisprudence has proved slow to protect LGBTQI applicants. 437 For example, in two cases concerning expulsion to Iran, the Court has held that though ' the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse ' , the applicants had failed to prove that there were substantial grounds to believe that they would experience ill-treatment. 438 By contrast, in a later case under Article 5(1), which has already been touched upon above, the Court showed more advanced engagement with and a meaningful response to the vulnerability of a similar applicant.…”

Mononormativity and Related Normative Bias in the UK Immigration System: The Experience of LGBTIQ+ Asylum Seekers

“…Luibhéid (2004) is key in highlighting heteronormative practices in immigration scholarship. Wieland and Alessi (2020) discuss the heteronormative lens in immigration systems, in relation to the European Court of Human Rights. Scholars have also expanded their analysis to the role of both hetero-and homonormativities, such as Giametta (2014) who explores this in relation to queer asylum and religion and Jung (2015) who considers queer migrant activism.…”