„I wouldn't come here!“
An asylum lawyer talks about how the German legal system deals with homosexual refugees.
She recently congratulated a client who was about to be deported twelve years ago on his naturalization: Because of such experiences Gisela Seidler likes to do her job. The lawyer has been working in the field of asylum and aliens’ law for 23 years. She looks after some clients* over many years. During a conversation in her office in Munich's Westend, she talks about her experiences with homosexual refugees. Although it is an emotional topic, she speaks objectively - about diffuse legal situations, arbitrariness, harassment and disillusioned refugees.
They always represent people who are persecuted in their home countries because of their sexual orientation. How does the German legal system deal with such people?
With the decision of the European Court of Justice in November 2013, the legal situation has changed considerably. Until then, it was considered reasonable for people to secretly live out their sexuality in their home country. Since the judgement, this has been considered unreasonable; it is now sufficient for homosexuality to be punishable in the country without the person seeking protection himself being punishable.
So the situation for homosexual fugitives should have visibly improved in this country?
Law enforcement is a constant battle. Recently, a court ruled against one of my clients that Senegal was safe for him. The reason: The last conviction of homosexuals took place in 2016 and thus some time ago. I, on the other hand, have found out that those affected have since been arrested again and beaten in prison. The arrested were acquitted, but only for lack of evidence. If someone is acquitted because he cannot be proven guilty of the crime, it means that it is still considered punishable. So, the penal code is still being applied there.
Does it always have to be a case of state persecution? What is it like when someone is persecuted by homophobic gangs or ostracized by their own family?
I also care for many people who have been recognized for non-governmental persecution. Here we must also prove that the home country does not offer them any protection, either because it cannot or does not want to. Recognition can only be given then. I had many cases from Uganda and Senegal, where persecution was almost entirely non-governmental and recognized. In Senegal there is a lack of the state's willingness to protect, in Afghanistan there is already a partial lack of the ability to protect.
The Bundestag has agreed to classify the Maghreb states and Georgia as safe countries of origin. The Greens want to block the bill in the Bundesrat. How would the legal situation on LGBT* refugees?
Of course it would have negative effects on the procedures - but also on the waiting time of the refugees. Refugees are not allowed to work, nor are they allowed to move out of the initial reception facility. But I am optimistic that the law will not come into being.
How do you prove at a hearing that your client is being persecuted for his sexuality?
That is not so simple at all – you do not have proof available in black and white. But you can prove certain activities. Many show photos of them in relevant bars and discos or on Christopher Street Day. Some have also appeared in public, are featured on the cover of magazines and have given interviews about their history. That is considered credible. Nobody would sit on a podium in the Bavarian Parliament and say: "I'm gay" if he isn't. The risk is just way too great if it's not true. A sexual partner can also testify as a witness. It gets harder when someone remains hidden at home. The authorities and courts usually reply to these people: "If you want to remain hidden, you can do so in your home country.
How successful are you in proving clients' homosexuality?
I accept especially promising cases and have also won all cases in this area. Unfortunately, I don't have the time for hopeless cases. For example, it is problematic if someone has been living in Germany for several years and only then wants to declare his sexual orientation and get protection for it. This can only be explained because of shame to a certain extent. In the other cases, I ensure that I am present at the hearings from the outset.
What can you achieve as a lawyer at the BAMF hearing?
You can make sure that everything is recorded at the hearing. In one case, one of my clients was tortured in custody, and the BAMF interviewer said: "It's all so terrible, I don't want to hear it." However, he is not the one who makes the final decision, but someone in Berlin. If that decision maker gets the minutes and there is nothing about torture - nothing relevant to persecution - in them, then he will of course reject the motion. As a lawyer, I can prevent this by asking targeted questions at the hearing.
What else matters?
Who makes the decision at the BAMF and which judges* you have to deal with. Some people don't believe anything, are not open to discussions and don't listen neutrally. Then you're pretty screwed. And you meet these people again and again; some people at the court or at the BAMF have been working on the same country for 15 years.
Sexual orientation as a reason for persecution is a very intimate subject. How curious are the authorities?
They don't ask, "How often do you have sex with each other?" But they already want to know whether you go out with your partner. Feelings are also addressed, whether you feel attracted to each other, when and how you discovered your sexual orientation. There is a catalogue of questions from the Federal Office which asks about sexual orientation and does not breach privacy too much. The questions are ok so far, and that has improved in recent years. But many more applications with partly abstruse justifications are rejected.
In the last two years, the reference to the domestic flight alternative in the last becoming more and more common - even if this is not an option at all. In Uganda, for example, homosexuality is punishable throughout the country. Lesbian women are often raped there. There it is called "corrective rape". Their application for asylum is rejected on the grounds that they can live in another part of the country. That's nonsense in Uganda, of course. The country is not divided into territorial dominions and in other parts of the country the homosexuality can also be exposed.
What is the origin of the idea of fleeing within the country?
The concept of the domestic flight alternative was developed for countries where parts are not under state control. If one was persecuted in the central Iraq by Saddam Hussein, one should first seek protection in the Kurdish areas in the north, because there the regime had no access. However, such different territories do not exist in Uganda. It is not yet clear how this will be assessed by the law. No court decisions have yet been made on the Uganda cases. They have all accumulated and are expected to be decided this year.
Is Germany a friendly country for people who are persecuted because of their sexual orientation?
I cannot speak perhaps for the whole country in general, but at least for Bavaria applies: This is not a refugee-friendly country anymore. People really have very bad odds of getting recognition as a result of the restructuring of the asylum system. There's also a lot of harassment from the authorities.
How are these people harassed?
By deliberately making people, who have a justified claim to protection, feel that they are without rights. Bavaria is a pioneer in “Ankerzentren”(anchor centers). However, some of the most homophobic places in Germany are refugee camps! And they can't get out either: Because of the reintroduced residence obligation, they are bound to the county of the first reception camp for 24 months and are therefore restricted in their freedom of movement. One of my clients has been living at the Ankerzentrum in Bamberg for over a year, his German fiancé is here in Munich. My client has requested that he be allowed to leave the center for a week in order to celebrate Christmas with his fiancé. That was rejected.
How do your clients* react to such experiences?
The image of Germany for many is still shaped by the welcome culture of 2015. But the fact that the Bavarian deterrence policy has managed to turn the country´s mood around in such a short time, shocks me very much. For many homosexuals, on the other hand, it is a shock when they come here and then end up in an anchor center. Those affected are at the mercy of violence from homophobic roommates, have no money and no access to legal advice. I wouldn't come here if I were them!
interview: Alexander Holzer
Illustration: Franziska Romana