People persecuted based on #sexualorientation or #gender identity (SOGI) can be recognized as #refugees as per the 1951 Refugee Convention and can seek #asylum based on the membership of a particular social group.
Usually, evidence is required in the Refugee Status Determination to assess the asylum application. But, in cases of #LGBTQI refugees, who have a right to self-determination, this does not strictly apply. LGBTQI refugees do not need to fulfil any universal, pre-set criteria in order to be granted protection. A person who is in the process of understanding their sexual orientation or gender identity can still seek asylum.
However, certain European countries especially #Austria, #Hungary and #CzechRepublic have a history of violating the right to self-determination. A homosexual refugee from #Iraq was refused asylum in Austria because he acted too “girlish” in the assessment interview. An 18-year-old refugee from #Afghanistan was denied asylum because he was not “gay enough”.
These countries have been accused of subjecting refugees seeking asylum based on their Sexual Orientation and Gender Identity (SOGI) to psychological assessment. These tests violate the right to self-determination and privacy of refugees when they are forced to explain or give evidence of their self-perceived identity. These tests, which were later used by Hungary, are now banned by the European Court of Justice. These tests were used to determine the sexual orientation to assess the asylum claims. It was deemed a disproportionate invasion of privacy.
Austria recognised homosexuality in 1971 and in 2019 recognised same-sex marriage. Despite this, LGBTQI refugees tend to suffer discrimination based on SOGI. Article 24 of the Yogyakarta Principles on the application of international human rights law in relation to SOGI states that everyone has the right to seek and enjoy other countries' asylum from persecution related to SOGI. Despite this, Austria’s asylum policy does not seem to be in consonance with the European Charter on Human Rights which protects the right to privacy under Article 8 and the prohibition against discrimination under Article 14.