Sexual Orientation and Gender Identity-Based Asylum Claims in Algeria: Challenges and Implications

Abstract:

This article provides an overview of the challenges faced by LGBT Algerians in their home country and explores the impact of asylum claims on the basis of sexual orientation or gender identity. The legal status of homosexuality in Algeria is complex, with the Algerian Penal Code criminalizing homosexual acts. As a result, LGBT individuals in Algeria often face harassment, discrimination, and violence. To escape persecution, many LGBT Algerians seek asylum in other countries.

However, proving such claims can be difficult, as they often require evidence of persecution, which can be challenging to obtain. Successful asylum claims can provide a lifeline to individuals who face persecution and discrimination in their home country, offering a safe and secure environment, access to healthcare and education, and the opportunity to live free from fear of violence and harassment. This article presents the case of a successful asylum claim by an Algerian international who faced persecution and targeting from Algerian police for his sexuality.

Introduction:

Members of the LGBT community worldwide face a range of persecution and discrimination in their home countries. This is particularly true for individuals living in Algeria, where the legal status of homosexuality is complex and LGBT individuals face significant challenges in their daily lives. Asylum claims on the basis of sexual orientation or gender identity are an important mechanism for LGBT Algerians to seek safety and protection. This article explores the challenges faced by LGBT Algerians and the implications of successful asylum claims.

Legal Status of Homosexuality in Algeria:

The legal status of homosexuality in Algeria is governed by Article 338 of the Algerian Penal Code [1], which criminalises "any person who engages in a sexual act against nature with an individual of the same sex." The punishment for such acts is imprisonment for two months to two years and a fine of 500 to 2,000 Algerian dinars. Although the law does not explicitly criminalise homosexuality, it is generally interpreted as a prohibition of homosexual acts. The Algerian government has also been known to selectively enforce other laws such as public decency laws and anti-terrorism laws to target LGBT individuals.

Challenges Faced by LGBT Algerians:

LGBT individuals in Algeria face significant challenges, including harassment, discrimination, and violence. They may be subjected to blackmail, forced marriages, and other forms of abuse. They may also be ostracised by their families and communities and have difficulty accessing healthcare and other essential services. LGBT Algerians also face difficulties in obtaining education and employment opportunities. These challenges can have a significant impact on their mental and physical health, making it difficult to lead fulfilling lives in their home country.

Asylum Claims Based on Sexual Orientation or Gender Identity:

Many LGBT Algerians choose to seek asylum in other countries to escape persecution. Asylum claims can be made on the basis of sexual orientation or gender identity. However, proving such claims can be difficult, as they often require evidence of persecution, which can be challenging to obtain [2]. The process of seeking asylum can also be challenging, with asylum seekers facing long delays, detention, and deportation if their claims are rejected. They may also face significant social and cultural challenges in their host countries, such as language barriers and discrimination.

Implications of Successful Asylum Claims:

Successful asylum claims can provide a lifeline to individuals who face persecution and discrimination in their home country. They offer a safe and secure environment, access to healthcare and education, and the opportunity to live free from fear of violence and harassment.

However, successful asylum claims can also have implications for the asylum seeker's family and community back in Algeria. It may cause further ostracization and discrimination against their family members, leading to additional challenges.

Case Study:

This case presents the case of a successful asylum claim by an Algerian international who faced persecution and targeting from Algerian police for his sexuality.

Case Study: The Plight of M.A.A, an Algerian International Seeking Asylum in the UK

M.A.A, a young Algerian international, experienced discrimination and persecution from an early age due to his sexuality. His family and the Algerian police targeted him, causing him to suffer from constant distress and paranoia.

In an attempt to raise awareness about LGBTQ+ issues, M.A.A started a Facebook page, which resulted in the police summoning him to the station and forcing him to take down the page. While attending university, M.A.A was assaulted by a group of Islamists, which caused him severe injuries and trauma.

He relocated to a different university but found no respite from the harassment. After attending a gay pride event in the UK, M.A.A returned home only to be attacked by three Islamists and his own family. He found himself constantly pursued by his attackers, including the police and military, and had to hide to stay alive.

M.A.A found solace in his job as an architect at a pharmaceutical company. However, he lived in constant fear, avoiding carrying identification and traveling by car to prevent exposure to stop and search.

M.A.A was blackmailed and physically tortured by soldiers after a journalist set him up for a meeting. This experience left him with PTSD and motivated him to seek asylum in the UK, where he hoped to finally live free of persecution.

Despite his struggles, M.A.A persevered and won his asylum claim, allowing him to start a new life in the UK free from the shackles of his past. His story highlights the need for increased awareness and support for LGBTQ+ individuals facing persecution worldwide.

The basis of the Applicant's claim is that he fears persecution in his country of origin Algeria due to his sexual orientation, he identifies as homosexual.

We submitted that he has a well-founded fear of persecution if returned to Algeria for the following reasons:

(a) His membership of a particular social group or political opinion (1951 Refugee Convention) 'As a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

(b) Legal, administrative, police, and/or judicial measures which are themselves discriminatory.

Home Office Guidance API on Sexual Orientation in Asylum Claims states at page 13 [3]:

Recognising, understanding and accepting one's own sexual orientation, if it differs from mainstream social expectations, can be a long and/or painful process, and in some instances, may only come in later stages of life. In such cases this must not be seen as undermining the genuineness of an individual's claim. Many claimants may come from cultures which shun any open discussion on sexual orientation and it should be noted that LGB activity and identity will often be surrounded by taboo, stereotypes and prejudice and be seen as being contrary to the fundamental morals, religious and political values of many societies. Discussing matters such as sexual orientation will for many, in the official context of an asylum interview, be extremely daunting. It is to be expected that some LGB asylum seekers may struggle to talk openly about their sexual orientation. If find it difficult to disclose material information in a coherent or detailed manner." " A recognition that the claimant's sexual orientation or conduct is disapproved of, either by their family or because of legal, cultural or religious mores, may lead some LGB claimants to have developed beliefs that their sexual orientation is in fact 'wrong' and which needs to be either changed and more probably, hidden. In avoiding hostility, discrimination and possibly criminal sanctions, many claimants may have kept aspects of and sometimes, large parts of their lives secret. Many will have engaged in avoidance, such as, only revealing their orientation to a very limited circle of people (or to no one at all), or abstaining from any sexual or emotional relationships or living extremely discreetly. Some will have, in addition to hiding their sexual orientation, evaded detection by engaging in lifestyles that conform to normative cultural heterosexual stereotypes.

On the 7th of July 2010, the Supreme Court issued a landmark ruling in HJ (Iran) [2010] UKSC 31 [4]. The decision established the criteria by which asylum applications from individuals fleeing persecution on the basis of their sexual orientation are to be evaluated. The ruling effectively put an end to the erroneous expectation that applicants conceal their sexual orientation if it is "reasonably tolerable" to them in order to avoid persecution upon their return to their home countries.

Demonstrating persecution can be an arduous task, particularly in cases where homosexuality is criminalised by the country of origin. In such instances, decision-makers may not necessarily view criminalisation as persecution, as evidenced in OO (Gay Men) Algeria CG [2016] UKUT 65 (IAC) [5]. Although this principle originates from the Court of Justice of the European Union, specifically cases C-199/12 to C-201/12 [6] X, Y and Z, the ruling still necessitated a comprehensive assessment of the facts and circumstances of each case.

To satisfy the second component of the HJ (Iran) test, asylum applicants must provide evidence that openly identifying as a lesbian, gay or bisexual person in their home country renders them susceptible to persecution. While this is usually a straightforward matter in countries where persecution based on sexual orientation is widely accepted, applicants are facing refusals in cases where the supporting country background evidence on this point is ambiguous.

The SSHD was invited to consider whether there is a real risk that our Client was returned to Algeria would be persecuted for being homosexual and this was accepted in lieu of our submissions without the need to appeal the same.

[6] X and Others C-199/12 to C-201/12