In the Dutch asylum process, the Immigration and Naturalization Department (IND) frequently reviews and changes its working methods in response to political mandates and shifts in asylum case law. Lotte Wolff’s report documents both forces at play, in the form of citizen activism and asylum seekers pursuing their claims in court. Since 2018 the IND has revised its Werkinstructie, the primary document of “work instructions” for IND interviewers, to address many of the shortcomings made evident by asylum seekers and their supporters. The changes in the Werkinstructie have not entirely changed the outcomes—LGBTQ asylum seekers continue to challenge IND findings that their claims of queer identity aren’t “legitimate.” But the IND’s adaptation is evidence that the problem exists, is important, and demands solutions. Is the state capable of “reading” the non-heterosexual identities of foreign queer people who arrive asking for asylum? The recent Werkinstructie 2019/17 documents the Dutch IND’s latest attempt (translated by Polity of Literature staff writer, Niels Bekkema).
Dutch Immigratie en Naturalisatiedienst (IND) Werkinstructie (Guidelines) 2019/17: “Hearing and Deciding in Cases in which LGBTQ orientation is Invoked as an Asylum Motive”
This work instruction (WI) replaces WI 2018/9 LHBT. In this work instruction Point 5: Coordinators has been added.
This work instruction discusses the IND’s investigation into the credibility in cases in which LGBTQ-orientation has been invoked as an asylum motive and discusses the themes that are addressed in that context. After this, the assessment of the credibility is discussed and a number of tools are offered for hearing and deciding in cases in which LGBTQ-ness is invoked as an asylum motive. The manner in which the answers are weighed will also be discussed. Finally, a short passage on subsequent applications follows.
Investigating and assessing the LGBTQ’s credibility is not easy. There is therefore no standard answer to the question of when being LGBTQ is credible. This remains an individual assessment which forms part of the integral credibility assessment carried out by the IND. The purpose of this work instruction is therefore not to provide a standard checklist, but mainly to indicate a direction.
If the alien does not claim to be an LGBTQ but is considered to be an LGBTQ (imputed LGBTQ), an individual, factual assessment of those statements will follow in accordance with the usual assessment framework.1 These work instructions do not apply to that situation.
The term LGBTQ refers to lesbians, gays, bisexuals or transgenders. Incidentally, the abbreviation does not have to be interpreted restrictively and can be used in situations in which the foreign national invokes a sexual orientation or gender identity in the context of an asylum application.
For the sake of legibility, “he” has always been used in the work instruction. Where “he” is written, “they” can of course also be read.
2. Themes and research
When an alien states that he is LGBTQ, it is up to him to further substantiate the sexual orientation that, as usual in any hearing, is the starting point. The IND will give the foreign national extensive opportunity to explain his sexual orientation and the situation of LGBTQs in the country of origin. The IND investigates whether the sexual orientation is credible.
In the assessment, account is taken of the fact that it is not possible for a foreign national to demonstrate with conclusive evidence that he is LGBTQ, while the foreign national’s mere assertion that he is LGBTQ is not sufficient either.
Below are the themes that the IND, in all cases, invokes in the hearing and subsequent assessment of the credibility of an alien who claims to be an LGBTQ. In every case, a hearing focused on the case takes place; but it is important that courts can also verify that the hearing took place in accordance with the general instructions, as described in this Werkinstructie.
It is explicitly not the intention to provide an unambiguous template with which the sexual orientation can be tested. In each case, an individual assessment must be made of what is relevant. For example, it is not realistic to expect that a foreign national who directly invokes his LGBTQ orientation at the time of his first application, and who has therefore only been in the Netherlands for a short time, has (extensive) knowledge of the situation in the Netherlands or has contact with LGBTQs in the Netherlands. It is therefore important (in all asylum procedures, but certainly also in those of LGBTQs) that the personal situation of the foreign national and what can be expected of the foreign national is taken into account. This also means that not all issues will necessarily be discussed during an interview (and therefore in the intention or in the decision [translator’s note: “intention” and “decision” are two distinct phases in the IND process). During an interview, the hearing officer may therefore conclude that, in view of the individual narrative, it is not relevant to (further) ask about a certain theme. In that situation, the decision officer will establish that the foreign national has not been able to explain this point, and will weigh whether or not this has an influence on their assessment.
The themes below give a direction but should not be seen as a “checklist.” After all, it remains an individual assessment and each (LGBTQ) alien is unique. It may happen, for example, that a foreign national can tell little about the LGBTQ community in his country of origin (or about another subject) but can tell a lot about other subjects. In that case, the conclusion could still be that the LGBTQ identity is sufficiently plausible.
No (standard) questionnaire is used. After the free narrative, open questions should be asked in particular. Where necessary, further questions must be asked about answers given. As a starting point, you should adopt an open-minded attitude during the hearing and avoid (subconsciously) arguing on the basis of a personal, often Western, frame of reference. In particular, ask about the personal experiences of the foreign national and the personal significance that these events have had for the foreign national. When asking questions, one should also take into account the extent to which people are able to put their orientation into words, as this will differ from person to person. Moreover, not every foreign national is accustomed to talking about his personal experiences and feelings. Therefore, try to connect as much as possible with the foreign national’s level and way of speaking and his frame of reference.
It regularly happens that foreign nationals come up with standard answers with regard to their being LGBTQ. This while the IND is looking for an authentic story of the alien in question. That is why it is important to continue asking questions about standard answers. The intention is to invite the foreign national to substantiate his statements in more detail and to make them more personal. This can be done, for example, by asking for clarification of the answer given or by asking what it means to him personally, whereby you may also be creative in your questioning. If the foreign national, even though he has been invited to substantiate his statements in more detail and to make them more personal, does not make use of this invitation and continues to come up with standard answers, it is not necessary to continue asking them indefinitely. After all, it remains the responsibility of the alien to make his being LGBTQ credible by means of his statements.
It is not the intention that the alien is directly and literally asked to explain the following topics ( for instance, “can you explain current and previous relationships, contacts in the country of origin and contact with or knowledge of LGBTQ groups”). The foreign national talks about his personal experiences, the hearing officer asks additional questions. It is the IND decision-maker who will then place the foreign national’s statements in the light of these themes and test their credibility.
If the applicant can’t, or can’t tell much about a theme, he is asked to explain why he can’t do so. Here too, the personal narrative is leading in the question of whether and to what extent the foreign national can be expected to explain this.
2.1.1 Private life (including family, friends, (previous) relationships) and environment
This context concerns the foreign national’s own experiences with regard to his sexual orientation. The foreign national is asked to explain how he realised that he was different/LGBTQ, how he experienced this personally, and how (or if) the environment reacted to him. He is also asked about any LGBTQ relationships he may have had.
2.1.2 Current and previous relationships, contacts in the country of origin and contact with or knowledge of LGBTQ groups
The IND will ask the alien about any relationships he has or has had and whether the alien has knowledge of the LGBTQ community and social and political aspects surrounding LGBTQs in his country of origin. If the alien indicates that he has knowledge of these aspects, he will be asked to explain what these aspects mean to him. If the foreign national comes from a country where, for example, homosexuality or homosexual acts are not accepted (or are even prohibited by law), the foreign national will be asked to explain what this fact meant to him.
2.1.3 Contact with LGBTQ in the Netherlands and knowledge of the Dutch situation
The foreign national may have acquired certain knowledge about the situation of LGBTQs in the Netherlands, through his contacts with the LGBTQ community or through his own experience or research. If this is the case, the foreign national will be asked to explain what the nature of his contacts is or was, and what this has meant for him. Incidentally, it is not a requirement that the foreign national must have had contact. Even if someone does not have these contacts and/or knowledge, it can be plausible that he is LGBTQ.
2.1.4 Discrimination, repression and persecution in the country of origin
This concerns both what the foreign national has experienced in the past in his country of origin and what he fears if he has to return to his country of origin. Attention is paid to the foreign national’s future prospects if he should have to return to his country of origin. The foreign national is asked to explain how he would like to give substance (if he returns) to being an LGBTQ in the country of origin, how, in his opinion, his surroundings and/or the authorities in the country of origin will react and what this will mean for him.
Research into the sexual orientation of a foreign national consists of asking questions. The following starting points apply to research into his sexual orientation:
- The IND does not carry out medical tests to determine the sexual orientation;
- The IND does not request documentary evidence in the form of ‘explicit sexual images’;
- The IND does not ask explicit questions about sexual acts or activities;
- The IND does not investigate whether the foreign national complies with the prejudices with respect to LGBTQs.4
A medical examination or a medical test, including psychological testing, is not used to establish the credibility of a person’s sexual orientation.
When a foreign national comes up with “medical” evidence himself, for example in the form of a report by a psychologist, the IND does not include this in the decision-making process. In this respect, the IND follows the Yogyakarta Principles from which, among other things, the following is evident:
“No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.
Psychological reports contain no scientific basis from which it can be concluded that a psychologist can determine a person’s sexual orientation.6
The IND does not ask for documentary evidence such as photographs or videos to substantiate the sexual orientation. If the alien himself presents photographs or videos to substantiate his sexual orientation, the material will be included in the assessment, unless it concerns sexually explicit images. Such visual material will be returned to the alien without delay. However, if the visual material submitted by the foreign national shows criminal offences, they will be presented to the investigative authorities.
The IND will ask open questions in order to obtain a picture of the foreign national’s situation. It is important to reveal the authentic, individual story in the hearing. It concerns personal experiences and feelings and the way in which the foreign national’s environment reacted or did not react to them. The IND naturally takes the foreign national’s frame of reference into account in this respect (educational level, age phase, culture, origin, etc.). No explicit questions are asked about sexual acts or activities. If the foreign national voluntarily declares sexual acts or activities, the IND will point out to the foreign national that such declarations are not required in order to make the sexual orientation plausible and will not be included in the assessment.
The European Court of Justice concluded in a judgment of 2 December 2014, in response to preliminary questions raised by the IND, that asking questions based on stereotypical views is incompatible with the required assessment of the facts concerning a specific person. As an example, questioning the knowledge of the asylum seeker concerning LGBTQ-interest associations and the details of these associations was mentioned [as incompatible]. In other words: the assessment should not be based on prejudice, but the determining authority should take into account the individual situation and personal circumstances of the applicant concerned. This means that if the alien himself presents stereotypes, this may of course be questioned.
The purpose of the hearing is to give people who base their fear of persecution on their sexual orientation the opportunity to tell their story. During the hearing, no assessment is given but only information is collected. An assessment only takes place after the hearing. It is therefore not the intention to anticipate the substantive test by, for example, not asking for one element, nor restricting it by asking for other elements, in the case of weak statements. However, the foreign national may—of course—be confronted with apparently weak statements on a certain subject and be asked to explain them. The answer to that question is then taken into account in the assessment of credibility.
3. Assessment of credibility
For the general procedure regarding the assessment of the credibility of the asylum report, reference is made to WI 2014/10 (Content assessment). The credibility indicators mentioned in WI 2014/10 also apply to LGBTQ cases.
Determining the weight given to the answers to the questions asked about a person’s sexual orientation strongly depends on the individual case. Just as, during the interview, the IND takes the foreign national’s frame of reference into account (educational level, age phase, culture, origin, etc.), the assessment involves whether the statements are consistent and correspond with what is known about the general situation (with regard to LGBTQ’s) in the country of origin. In doing so, account must be taken of the fact that each case must be judged on its individual merits and that—certainly in the case of a subject such as sexual orientation—not everything can be captured in objectively measurable criteria.
In general, it can be said that the focus is on the answers to questions about the alien’s own experiences and personal perception of his sexual orientation, what this has meant for him and those around him, what the situation is for persons with that orientation in the alien’s country of origin, and how his experiences (also according to his asylum report) fits into the general picture. This applies all the more if a foreign national comes from a country where LGBTQ has been made socially unacceptable or punishable. In that situation, the question is whether and how the foreign national has adapted to this and how he has experienced this.
When assessing the credibility of the sexual orientation, the IND does not take as a starting point that in all cases an internal struggle must have taken place before the foreign national has accepted his LGBTQ orientation. It may, however, be expected that in the case of a foreign national who originates from a country in which LGBTQ orientation is not accepted and where this may have been made punishable, that there will be a (thought) process in which the foreign national is faced with the question of what it means to be different from what that society (and the law) expects/demands, and in what way he wants to and can give substance to this. When assessing the credibility of the LGBTQ orientation, weight will be attached to the process of discovering the orientation and the way in which the foreign national has stated that he has dealt with it. Naturally, it remains important to take the foreign national’s personality and background into account in the questioning and assessment. After all, every foreign national has his or her own frame of reference on the basis of education, cultural background, stage of life, etc.
In so far as is relevant, the IND will also indicate, in the case of a story found to be implausible, what weight it attaches to the foreign national’s statements about what happened to him in the country of origin (or abroad) as a result of his alleged sexual orientation that—in part—constituted a reason for him to leave that country. If these are also found to be implausible, it reinforces the opinion that the sexual orientation is implausible. On the other hand, if the foreign national’s statements about events that were reason for him to leave the country are found not to be credible, that does not automatically lead to considering the sexual orientation implausible.
The IND always considers the statements made by the foreign national about his alleged sexual orientation in their mutual coherence. Not only with regard to the aforementioned elements (and the weight the IND attaches to the foreign national’s answers to questions about one or more of these elements) but also in the light of other circumstances, such as the other statements made by the foreign national (in the current or previous procedure(s)) and information provided by him.
3.1 Statements by third parties
It sometimes happens that the foreign national invokes (written) statements of third parties (witnesses, partners, interest groups) to substantiate his asylum application. The IND always weighs the information submitted by third parties, but the weight attached to them depends on the individual case. Successive applications will first be assessed to determine whether there are new facts or circumstances (see Chapter 4).
The decision must state the reasons for taking account of statements made by third parties (or why they were not taken into account). In this way it becomes clear what weight has been attached to statements made by third parties. The sole proposition that it is up to the foreign national to make his LGBTQ orientation plausible by means of his statements is therefore insufficient. This because the statements of third parties were not clearly taken into account.
The IND has its own obligation and responsibility to arrive at an opinion on the credibility of being an LGBTQ and does so on the basis of the entire dossier. An integral assessment therefore takes place. This means that primary attention is paid to the foreign national’s own statements, but that other information is also included in the file (such as statements from third parties).
In cases of doubt, statements from third parties—provided these statements are actually an addition to the file—can be decisive. However, it depends on the individual circumstances, whether a third party statement may outweigh what the foreign national himself has stated. In addition, information from third parties may also outweigh the foreign national’s own statements if the information is detrimental to the foreign national’s own statements.
Incidentally, information from third parties does not only need to have been received from the foreign national himself but may also be known directly to the IND. For example, information from a chain partner of the IND or from a third party who has contacted the IND. When assessing how information from third parties is taken into account, the IND will in any case look at the following aspects:
3.1.1 The content of the declarations
Factual information, such as observations by the third party about (concrete behaviours of) the alien, puts the IND in a better position to arrive at an integral assessment. This factual information (provided that this information appears to be correct, and the source can be regarded as reliable in a general sense) can therefore be of added value. Such factual information will weigh (much) more heavily than (for example) a single statement that the foreign national in question is LGBTQ. This applies all the more when the latter statement is based on information that the IND itself has at its disposal, such as in the situation in which a third party makes its own assessment of the asylum report.
Statements of support from third parties do not in themselves have any added value, unless factual information is added to the file. They may, however, provide points of departure for further questions during the (further) hearing. For example, it may be asked why the third party supports the foreign national’s application, and how he knows this third party.
Advice from psychologists, psychiatrists, doctors, sexologists, etc. who state that the foreign national is LGBTQ will not be accepted, see Addendum One, under 2.2 “Investigation.”
3.1.2 The source of the declaration
The IND also looks at the objectivity of the third party declaration. For example, more weight may be attached to the declaration of a third party who has no interest in a (positive) outcome of the asylum application than to a declaration of a third party who does have an interest in it.
In doubtful cases, for example if there is a partner, the IND could (in special cases) choose to hear the third party by way of exception. Such a hearing would take place on a voluntary basis. After all, there is no obligation for third parties to cooperate in an IND hearing. The above also means that if the source is unknown or anonymous, less weight can be attached to the statement than if the identity of the source is known.
4. Successive applications
When assessing whether the sexual orientation is a newly revealed fact or circumstance, the alien may not be subjected to the fact that he has not previously stated his sexual orientation and that there are therefore no new elements or findings. This means that an application cannot be declared inadmissible on this ground alone. In this context, see also paragraph C1/4.6 of the Aliens Act Implementation Guidelines, in which it is stated that the IND does not object to the fact that there are no new elements or findings if a foreign national indicates during a second or subsequent asylum application that he is LGBTQ, and this sexual orientation has not already been stated or assessed during a previous procedure. For the sake of completeness: even if the IND does not consider this information credible, a declaration of inadmissibility must be omitted. Incidentally, this does not mean that it may not be asked why the foreign national did not report this in the previous procedure(s) (or how this fits in with his previous asylum report) or that this may not be included in the assessment of the application. If in a previous asylum procedure it has already been judged that the alleged sexual orientation is not credible, and that judgment has been established in court, it may be concluded that the application is inadmissible if no new elements or findings are involved in a successive asylum procedure. Incidentally, the above does not alter the fact that a (successive) application can of course be declared (manifestly) unfounded for substantive reasons if the LGBTQ orientation has not been made sufficiently plausible.
Successive applications that invoke new (support) declarations from third parties will be assessed, in accordance with paragraph 3, to determine whether there are actually new elements or findings compared to what was assessed previously. Declarations from third parties that only address the facts that were dealt with during previous asylum procedures, or the substantive assessment during those previous asylum procedure(s), will in principle not be regarded as new elements or findings. Even if it is judged that the third party could have already submitted the statement during the previous procedure, this does not constitute new elements or findings.
LGBTQ coordinators are present at each location. In every case in which an LGBTQ motive is involved, an LGBTQ coordinator must be consulted before the decision is made. In addition, the coordinators may also be approached for questions about these cases.
1 Cf. For example, the testing of imputed political conviction.
2 These themes/guidelines are based, among other things, on the article Sexual Orientation and the Refugee Determination Process: Questioning a Claimant About Their Membership in the Particular Social Group by Prof. Dr. LaViolette from 2004, the rapport of Pink Solutions “inventarisatie situatie lhbt asielzoekers” of Lieneke Luit from COC (www.coc.nl) and the UHNCR guidelines: UN High Comissioner for Refugees, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 2012; http://www.unhcr.org/refworld/docid/50348afc2.html.
3 Of course, it is not forbidden to ask for closed questions as well, e.g. for clarification. The hearing officer has a lot of freedom to ask questions. This may help to enable the foreign national to tell his personal story.
4 Examples of prejudice: female behavior and appearance in gay men and male behavior and appearance in lesbians, always being active in the gay scene and nightlife, certain way of dressing, etc.
6 See also the arrest of the Court of Justice of the European Unionfrom 25 January 2018, case C-473/16 (ECLI:EU:C:2018:36) which specifically addresses this issue.