Sexualitet och trovärdighet - Om trovärdighetsbedömningen av sexuell läggning i den svenska asylprocessen

Sammanfattning: To assess the credibility of information given in an oral statement is a challenging subject. To assess the credibility of someone’s claimed sexual orientation is even more demanding. Nonetheless, migration courts are put in a position where they are required to master these challenges. For an asylum application to be successful claimants must show that their fear of persecution is based on a convention ground. Actual or perceived sexual orientation can be one of those grounds. The courts are consequently required to draw conclusions on whether the claimant has made it “likely” that he or she has a certain sexual orientation or that he or she is perceived to have a certain sexual orientation. However, it has proved difficult for the asylum seeker to acquire evidence to prove this claim. As a result, the credibility assessment will in most cases be based solely on the applicant’s oral statement. In these situations, it is of utmost importance that the courts do not base its assessments on prejudice or stereotypes. To keep this from happening decision makers need to maintain an objective approach where conclusions are drawn from objective experience and reasoned knowledge. Guidelines have also been provided. General guidelines are available for credibility assessments within the asylum system, and special guidelines have been developed for the investigation of sexual orientations. According to these guidelines the assessment of credibility in sexual orientation claims needs to be undertaken in an individualized and sensitive way where exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are deemed more likely to help the decision maker ascertain the applicant’s sexual orientation rather than a focus on sexual practices. This paper shows that the Swedish migration courts take greater account of the applicant's sexual identity than sexual practice when assessing the credibility of a claimed sexuality. However, the focus on sexual identity has not proved unproblematic. The outcomes of this paper show that it seems to be a tendency of the migration courts to assume that there are certain qualities that one can expect in a sexual orientation claim. Yet, research shows that these finding lack empirical support. In fact, there is little empirical support to show that it is objectively possible to determine someone's sexual identity. It is therefore questioned if the evidentiary assessments are in compliance with the rule of law. Additionally, it appears that there are dangers attached to an excessive focus on the “authenticity” of someone’s sexual orientation. Such a focus may overlook the main theme in refugee determinations, which is the question of well-founded fear of persecution. It is suggested that greater attention should be aimed at assessing the main theme of well-founded fear of persecution. To do so, greater attention should be aimed at investigating perceived sexual orientation, or perceived associations with those who challenge heteronormativity, rather than assessing the “authenticity” of someone’s sexuality.