Why is Canada only now accepting more LGBT asylum claims?

Canada’s acceptance of LGBT asylum seekers has climbed after a controversial 2012 clamp-down on claimants from so-called “safe countries,” according to data obtained by Xtra.

Documents released through the Access to Information Act reveal that Canada approved 69 percent of asylum claims classified as “sexual orientation and gender minorities” in 2015, compared with an average of 61 percent in the preceding four years.

Meanwhile, the number of people making SOGI claims has only slightly risen, with 1,286 claims decided in 2015 compared with an average of 1,132 in the preceding four years.

The documents cover asylum claims classified as SOGI and processed between 2011 and 2015. The data only includes Immigration and Refugee Board decisions on inland claims; it doesn’t include Canada’s intake of sponsored and non-sponsored refugees who arrive through the United Nations Refugee Agency.

The Immigration and Refugee Board stresses these are rough numbers because some refugee claims involve more than one category, and some refugees are granted asylum for a reason other than the main category under which they had filed a claim.

“Claim-type categories are generic and are the ‘best fit’ for each case given the available categories,” the tribunal said in its data release. The data sorts claims by the year they were adjudicated, though many claims have taken years to be decided, while some are appealed.

Sean Rehaag, a professor at York University’s Osgoode Hall Law School has researched refugee claims for years. He says the success rate of SOGI claims dwarfs other categories like political refugees or persecuted religious minorities.

“That suggests that there’s widespread persecution against LGBT claimants and that the Immigration and Refugee Board is recognizing that,” he says. “Frankly, it reflects the reality of rampant homophobia in many countries around the world.”

Rehaag notes SOGI claims are “notoriously difficult to adjudicate” because claimants often spend their lives hiding any proof of their sexuality before being asked to prove it to a stranger.

“It’s an incredibly fraught and difficult process,” he says. “And the fact there are hundreds of people who are going through this process every year is really an indicator that we need to make sure that those processes are fair, and that the processes are not relying on stereotypes about sexual minorities.”

‘Safe’ countries

Even as the rate of approved asylum requests jumped from 38 to 59 percent since 2011, the number of people arriving in Canada to claim asylum has dropped by a quarter (from 12,905 claims in 2011 to just 9,537 in 2015).

The drop coincides with the former Conservative government’s 2012 decision to maintain a list of Designated Countries of Origin (DCO), which curtailed the appeal rights for refugee claimants from countries deemed to have a functioning justice system and human rights. There are currently 42 countries on the list, which the governing Liberals plan to alter.

While the previous government said the list cracked down on “bogus” refugees who had their claims thrown out, advocates and researchers say it instead imposed difficult timelines on vulnerable claimants.

Janet Dench, executive director of the Canadian Council for Refugees, says SOGI claimants have been particularly affected by the DCO list.

“Generally, they’re going to be from countries where there is a democratic government in place, where there isn’t an outright conflict happening,” Dench says. “Even though there may be generally peaceful situation and rule of law, that may not extend to people who are sexual minorities or people facing gender persecution.”

While the data shows fewer claims and higher success rates among the claims made, Rehaag pushes back against the idea that the new system has weeded out false claimants, because the SOGI success rate remains high.

“During the same period when our former government was talking about abuse of the refugee-determination system, there were large groups of refugee claimants, including LGBT refugee claimants, who were succeeding at a very high rate,” Rehaag says. “I think there’s a lesson there about being careful of applying stereotypes about claimants.”

In his November 2015 ministerial mandate letter, Prime Minister Justin Trudeau tasked then-Immigration Minister John McCallum with establishing “an expert human rights panel to help you determine designated countries of origin.” Just four months later, the Federal Court restored DCO claimants’ right to an appeal.

But it’s unclear whether the government will change the list, which was last updated in October 2014 under the previous government. Trudeau’s mandate letter to new Immigration Minister Ahmed Hussen, posted Feb 1, 2017, contains no mention of the DCO list.

Dench notes that the DCO system isn’t improving time frames, according to both a March 2016 IRB evaluation and an April 2016 immigration department report.

“Rather than improving the DCO list, it should be simply eradicated,” Dench says. “It’s not working; it’s not serving the purposes that were intended.”

Differences for bisexuals and trans people

The data shows huge fluctuations in success rates for the four SOGI categories: bisexual, gay, lesbian and “Varied/Other.” That last category jumps from 50 to 79 percent success, and includes trans people and other identities like genderqueer, intersex and South Asia’s Hijra and Kothi minorities.

In each year, lesbians have a higher success rate than gay men by two to nine more percentage points, though they account for one-third as many claims as gay men.

Rehaag notes that in all five years, bisexual claimants had a lower success rate than gays or lesbians.

“Why is it that bisexuals are being disbelieved at a higher rate than other types of sexual-minority claimants?” Rehaag wonders. “That tracks onto other social phenomenon, where bisexuality is a sexual orientation or identity that is treated with a rate of skepticism more broadly than others.”

Variations by country

The data reveal trends for countries with crackdowns on queer people, though not always as expected.

Russia, which banned “homosexual propaganda” in 2013 and saw a rise in LGBT hate crimes, had a steady climb in SOGI claimants from 34 in 2011 to 53 in 2014, but just 19 claims in 2015.

The numbers shift even more dramatically for Uganda, where lawmakers passed a 2014 law to execute gay people (the bill was watered down to life in prison, and remains suspended under a constitutional court challenge).

The number of SOGI claimants from Uganda jumped from 17 in 2013 — with just a 59 percent success rate — to 45 claims in 2015, with 76 percent success. In 2011, 30 of the 35 asylum claims from Uganda were approved.

Many countries also show a large year-by-year fluctuation, both in terms of SOGI asylum claims made and approved. . For example, Albania, Venezuela and Zimbabwe each had the highest success rate in one of the five years, holding a 100 percent success rate with more than a dozen claimants — but all three of these countries also showed a success rate of two-thirds or less in other years, according to the data.

The data also includes rare cases of LGBT refugees from countries with codified protections of LGBT people. Israel, whose government promotes itself as a bastion of queer rights in a hostile region, saw two successful gay male asylum seekers in 2011 (Palestine is listed as a separate region, and had one successful claim in 2014). France also saw one successful gay male claim in 2012. But Dench says not to read too much into small numbers.

“Sometime issues of nationality are kind of obscured because of family members with different nationalities,” Dench says, citing the example of people whose children have US citizenship though the parents were born in another country. “There are a lot of things that could be going on in a particular case.”

Per capita, the countries that send the most LGBT refugees to Canada are Caribbean islands such as Saint Vincent, Saint Lucia and Jamaica, as well as Namibia and Albania, which consistently produce SOGI refugees every year.

View the Immigration and Refugee Board’s data on SOGI and general claims from 2010 to 2015.