SA officials ignore laws on LGBTQIA+ asylum seekers

A new report exposes the behaviour of Department of Home Affairs administrators who misapply the law and use bigoted language against gender-diverse applicants fleeing persecution.

When George Barasa fled Kenya to South Africa, he thought he had escaped the discrimination and humiliation he faced in his country of birth because of his sexuality. 

The Kenyan government issued a warrant of arrest for Barasa, 30, when he became the country’s first openly gay and HIV-positive person after coming out on live television in 2013. Under a regressive colonial-era penal code, same-sex relations in Kenya were illegal, punishable by up to 14 years in prison.

Barasa came to South Africa expecting to find asylum and live in relative freedom. But instead he was faced with more discrimination from Department of Home Affairs officials.

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“They are actually exposing you to everybody. And sometimes they actually parade you [around] and they say this is a gay man from Kenya. He is applying for asylum because he is gay. Who else is gay here? That’s what they do,” Barasa previously said. 

Not only was his asylum application rejected on arrival in South Africa, but Barasa was humiliated as the refugee status determination officer (RSDO) questioned his sexuality and dismissed claims that he feared for his life. The letter rejecting Barasa’s claim was incoherent and relied on old and inaccurate information.

Barasa’s experience is not unique. A new report by the Legal Resources Centre (LRC), the Women’s Legal Centre, the African Centre for Migration and Society at the University of the Witwatersrand and People Against Suffering, Oppression and Poverty looks into the experiences of asylum seekers and refugees in South Africa who belong to the LGBTQIA+ community. 

Misapplying the law

In LGBTI+ Asylum Seekers in South Africa: A Review of Refugee Status Denials Involving Sexual Orientation and Gender Identity, the researchers reviewed 67 denial letters written by RSDOs to 65 asylum seekers who identified as lesbian, gay, bisexual, transgender and/or intersex. 

The researchers found that home affairs officials consistently fell short in a number of legal obligations when reviewing the applications of LGBTQIA+ asylum seekers, contravening elements of several pieces of legislation. 

“By failing to comply with these laws, RSDOs violate applicants’ rights as outlined in the Constitution of the Republic of South Africa … We also identify serious misapplications of international law,” the report found. 

“While it is relatively easy to identify legal, administrative and bureaucratic shortcomings within the dataset, it is less clear how or why these often egregious misapplications of law have occurred. Indeed, it is impossible to determine the exact motivations of the RSDOs from the letters alone.

“What we can say with confidence is that the RSDOs whose work is analysed in this report failed to observe key legal principles when adjudicating [sexual orientation and gender identity]-based asylum claims.”

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The researchers emphasised that they hoped the report would help to ensure that LGBTQIA+ applicants were treated in a humane and dignified way throughout the application process and would receive fair adjudications. 

Miriam Gleckman-Krut, one of the authors of the report, said the information RSDOs used to deny asylum applications was incorrect or misleading. 

“So, for example, in seven instances, South African officials wrongly state that a country did not have laws criminalising particular sexual practices, when in fact those laws were in place, which means that LGBTI+ applicants were being denied on factually inaccurate information,” she said.

“This disturbing observation prompted us to go through the data again, to search for the source of information that officials used to deny the applicants in the sample. To do so, we put excerpts from the letters into a Google search [to] identify where the letter significantly overlapped with texts available elsewhere on the internet.”

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Gleckman-Krut said they found many generic legal texts, including content from law books or the United Nations’ guide on the determination for refugee status. “[But] where we found evidence unique to the applicant, we identified texts lifted verbatim from newspaper articles, foreign country reports from the US, Canada and the UK, as well as in some cases less credible sources such as Wikipedia.”

Evidence of this can be seen in the nearly incoherent letter that rejected Barasa’s asylum application: “Your claim is totally contradicting country information of Kenya as claimed there is fully protection of the state only the public are the ones who are gay and lesbian according to the country information of Kenya and this matter should have been reported to the police [sic].”

Belonging nowhere 

Barasa has since settled in Canada, where he is trying to rebuild his life. Of his experience in South Africa with RSDOs and the department, he said: “Life is hard. I am trying to integrate and people wonder why it is taking me so long but the damage happened in South Africa. Living in limbo meant I could not love or accept a boyfriend for fear [of] it being branded a ‘marriage of convenience’. As a result I lost the only person I ever loved and that is why I am still grieving the loss.

“Almost two years later I am still grieving over my experience. Sometimes I just want to change my identity because South Africa gave me this identity of someone who belongs nowhere. The [Department of Home Affairs] stripped me … of my identity.”

Amy-Leigh Payne, an attorney at the LRC and one of the authors of the report, said the researchers found many examples of stereotyping and bigotry. “We’ve seen reports that fathering of a child or past heterosexual relationships … are then seen as the applicant … being dishonest and it [is] also then [used] as a reason for rejection,” she said. “There’s also a greater focus on credibility of identity rather than asylum claims. For example, applicants’ self-identification as gay men are doubted.”

She said in one case an RSDO official said to an asylum seeker the department rejected: “It is my finding that you are not a gay. In your testimony, you stated that you knew nothing about gay association in your country of origin, and no one knew your status in your country of origin except your partner. The community had no interest in your affairs, your evidence failed to demonstrate that you are a gay.”

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Payne pointed out that the language, syntax and grammar the RSDOs use are prejudicial and derogatory. “Common practices for RSDOs are to refer to LGBTI applicants as ‘a gay’. In everyday English, this reading is used to convey hostile sentiments. It’s usually paired with an indefinite article and it also implies that the individual being referenced is somehow less than human,” she said. 

The authors of the report recommended that the Department of Home Affairs, among other things, provide additional training to RSDOs to ensure they have the legal knowledge and research skills to fairly adjudicate applications based on sexual orientation and gender identity; to undertake a review of internal policies and procedures to ensure all administrative actions meet domestic, regional and international legal obligations; and to create a safe, secure and private environment where LGBTQIA+ applicants can disclose personal information. 

Further, they called on the department to collaborate with human rights groups, LGBTQIA+ organisations, and experts on sexual orientation and gender identity, while recognising and responding to the unique barriers faced by trans and gender-diverse applicants. 

The Department of Home Affairs didn’t respond to questions sent to them on this report and what their officials have been accused of doing.

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