Divorcing Sexual Orientation from Religion and Politics: Utilizing the Convention Grounds of Religion and Political Opinion in Same-Sex Oriented Asylum Claims
International Journal of Refugee Law, 2015, Vol. 00, No. 00, 1–17 doi:10.1093/ijrl/eev033
17 Pages Posted: 29 Mar 2016
Date Written: August 1, 2015
In spite of the omission of sexual orientation as a ground for persecution under the 1951 Refugee Convention, there is now widespread acceptance of sexuality based claims in most western countries. UNHCR has continued to develop policy and guidance to promote a rights based approach in protecting same-sex oriented refugees. In its most recent guidelines on claims to refugee status based on sexual orientation and/or gender identity, UNHCR recognizes that the convention grounds of religion, political opinion, and membership of a particular social group may be relevant in deciding claims based on sexual orientation. However, of these convention grounds, membership of a particular social group has emerged as the most utilized ground in dealing with same-sex oriented refugees. Nonetheless, there is no uniform definition of what constitutes a particular social group, as countries such as the USA and Australia have reached different definitions. It is partly against this backdrop that this article considers the Convention grounds of religion and political opinion for assessing refugee cases based on sexual orientation, to determine whether they might be helpful and may have a crucial role to play in the assessment of such cases.
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