The Swedish Migration Agency answers: this is how it works when we process cases where LGBTQI is grounds for protection
Can a person's sexual orientation, gender identity or gender expression affect how the Swedish Migration Agency assesses whether a person should be allowed to stay in Sweden? How do we make such an assessment and what does the law say? This is explained in this part of The Swedish Migration Agency answers.
Being an LGBTQI person can play a role in asylum cases
The Swedish Migration Agency handles many different types of cases – including residence permits on the basis of work, family ties, studies and protection. It is in the latter type of case that LGBTQI-related information may be of importance to the Swedish Migration Agency's assessment. Any applicant can be an LGBTQI person, but it is in an asylum case that this aspect can actually affect whether you have the right to stay in Sweden or not.
If you have a well-founded fear of persecution because of your sexual orientation, gender, gender expression, gender identity or affiliation to a particular social group, you may have the right to receive protection in Sweden. How an asylum case should be handled is regulated in both the Refugee Convention, Swedish law and EU rules.
How do you show that you have a well-founded fear?
It is mainly the person applying for a residence permit who has the burden of proof, regardless of the type of residence permit the person is applying for. It is this person who must present his or her reasons for why he or she should be allowed to stay in Sweden.
Free presentation of evidence
In an asylum case, an investigation is carried out in which the asylum seeker is asked to tell the Swedish Migration Agency why the person needs protection. If the reason is your sexual orientation, gender expression or gender identity, it is important that you inform us of this as soon as possible. There are no rules that say how you should prove that you have grounds to stay in Sweden. The Administrative Procedure Act states that the applicant must, as far as possible, submit the investigation and the means of evidence that he or she wants. This is called free presentation of evidence. The Swedish Migration Agency has an obligation to investigate and provide service, which means, among other things, that the case officer will help the applicant by asking relevant questions and telling the applicant how they can prove various circumstances.
It is common for information about sexuality and gender identity to emerge late in the process, which is often due to the fact that in many cultures it is a taboo subject associated with stigma and therefore something that you do not want or dare to talk about. The Swedish Migration Agency should not doubt a piece of information or allow its credibility to be affected just because the information arrives late – there may be reasonable and acceptable reasons for this.
The Swedish Migration Agency may not keep a register of asylum seekers' grounds for protection
One of the purposes of the series of articles “the Swedish Migration Agency answers” is to simply explain the agency's mission and work with the help of figures and statistics. When it comes to LGBTQI issues, however, there are no statistics to show – as it is generally forbidden to process data that reveals a person's sex life or sexual orientation. Such information is considered sensitive personal data, according to the General Data Protection Regulation (GDPR). Therefore, there are no registered statistics on, for example, how many cases the Swedish Migration Agency processes where LGBTQI is the reason for seeking protection. The ban on keeping records of asylum seekers' reasons for protection applies not only to LGBTQI-related information, but to all types of reasons for protection.
The Swedish Migration Agency's investigation of an LGBTQI case
The issue of LGBTQI can be sensitive and something you avoid talking about. Opening up and telling the Swedish Migration Agency about one's sexuality and gender identity therefore places demands on the staff's treatment and way of handling the information provided by the applicant. Interpretation also plays an important role here. In order for conversations with asylum seekers to be interpreted correctly, there is a practical guide with information about the interpreter's role in the asylum process, important principles and strategies.
An asylum investigation, regardless of the protection needs, must be carried out in a safe and respectful environment where you can talk about difficult experiences.
How a case is processed
In many cases, the Swedish Migration Agency only has the applicant's own story to use as a basis for the assessment. It is also common for information that emerges in an asylum case not can be shown or made probable with written evidence or other evidence. This means that the applicant can rarely present clear information that shows that he or she is at risk of being persecuted because of his or her sexual orientation, for example – which the Swedish Migration Agency takes into account in its assessment.
When an asylum seeker states his or her sexual orientation, gender identity or gender expression as a reason for protection, the Swedish Migration Agency must investigate the case in five steps:
1. Group affiliation
Group Affiliation means that you belong to a group that is at risk of persecution because of actual or attributed sexual orientation, transgender identity or gender expression. The Swedish Migration Agency should not try to establish the person's sexual orientation or gender identity, but the person seeking protection should be able to make their group affiliation likely. This is the initial part of the investigation.
2. The situation of the group in the home country
If the applicant has made it probable that he or she belongs to a particular social group, the Swedish Migration Agency must investigate the situation of that group in their home country. Here, the Swedish Migration Agency uses relevant and up-to-date country information that the agency continuously publishes in the Lifos database. In many countries, the opportunities to obtain information about and document abuse against LGBTQI people are limited. However, this cannot automatically lead to the assessment that there is no persecution in the country.
If the asylum seeker's country of origin has legislation which means that: Homosexual acts are punishable it is not in itself a basis for being classified as a refugee. However, the risk of a prison sentence, due to sexual orientation in a country where it is punishable, can constitute persecution and therefore be a basis for being assessed as a refugee.
3. Past persecution
The next step in the investigation is to assess whether the applicant has made it likely that he or she have previously been subjected to persecution in their home country. It is the applicant's own story that forms the basis for the assessment, and the information presented is up to the applicant to decide. It is important to point out that it is not a requirement to have previously been subjected to persecution in order to be able to receive protection.
4. The applicant's personal risk in the event of a return
At this stage, the Swedish Migration Agency makes a forward-looking assessment of the applicant's personal risk. In this assessment, it can be assumed that there is a risk that the persecution will be repeated. In order for one not to assume that it will happen again, there must be significantly changed conditions in the home country that mean that the risk no longer exists.
5. The possibility of government protection and internal flight
If the Swedish Migration Agency assesses that the applicant is in need of protection because he or she belongs to a special group, the final step in the investigation is to assess whether: The state in the home country is willing and able to offer protection. If it is the state that is behind the persecution, it is not an option.
In order for the Swedish Migration Agency to assess that official protection is possible, the state must take reasonable measures to prevent the applicant from being persecuted or suffering serious harm. If the applicant cannot be granted protection by the state, the Swedish Migration Agency must assess whether internal flight within the home country is a possibility instead.
How the Swedish Migration Agency's staff are trained
Handling with cases where LGBTQI is highlighted as a reason for receiving protection places demands on the Migration Agency's staff. When considering cases concerning residence permits, the law is always at the centre, both Swedish national legislation and regulations on an international level, such as UNHCR's guidelines for international protection.
Internally at the Swedish Migration Agency, there are various seminars, online trainings, workshops, guides and cases that form the basis for the staff's competence in LGBTQI-related matters. As an employee of the state, regardless of authority, there is also a course on LGBTQI and equal treatment that has been developed by the Living History Forum.
Click here for more information about the course (in Swedish)
External link, opens in new window.
LGBTQI a living issue
The Swedish Migration Agency is one of several LGBTQI strategic authorities in Sweden. This means that we collaborate and exchange experiences with other authorities and with civil society on issues related to LGBTQI – to keep the issue alive and be part of the daily activities. For example, LGBTQI is highlighted as a topic in the social introduction that asylum seekers receive at an early stage in the process. There, applicants receive information about what it means to be an LGBTQI person.
The Swedish Migration Agency's cooperation with civil society
The Swedish Migration Agency has a constant dialogue with civil society organizations, including RFSL. RFSL stands for the National Association for Lesbian, Gay, Bisexual, Transgender, Queer and Intersex Rights and is a non-profit organization that works for LGBTQI people's rights.
Click here for more information about RFSL (in Swedish) External link, opens in new window.