Canada’s Guideline 9: Improving SOGIE Claims Assessment?

Abstract

Issued by the Immigration and Refugee Board of Canada and effective from May 2017, ‘Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression’ (SOGIE Guideline) touches on a number of the recurring concerns about sexual orientation and gender identity (SOGI) based asylum claims that have arisen in case law, statutory instruments and guidance around the world, including in Europe. Here, we focus on six that have been common reasons for refusing SOGI-based asylum claims in Europe and which were the subject of Court of Justice of the European Union (CJEU) rulings in 2013 in X, Y and Z, and in 2014 in A, B and C: qualification as a member of a Particular Social Group for the purposes of the 1951 Refugee Convention; whether applicants can return to live ‘discreetly’ without risk; whether laws criminalising homosexuality in the applicant’s country of origin constitute persecution in themselves; the use of gender and sexual stereotypes to inform asylum decision-making; whether sexually explicit evidence is asked for or expected in asylum cases; and late disclosure as the basis for refusal of international protection. We also address some of the other points in the Guideline that resonate with European case law and guidelines – as well as some that should but do not. Our purpose is to consider to what extent the Guideline offers an improved model to jurisdictions in Europe and beyond.

Keywords: Canada, asylum, refugees, sexual orientation, gender identity, LGBT, European Union, Court of Justice