En trovärdig sexuell läggning - Om migrationsdomstolarnas trovärdighetsbedömningar i asylärenden med sexuell läggning som skyddsgrund
Sammanfattning: According to Swedish law, those who are persecuted because of their actual or attributed sexual orientation have the right to obtain refugee status. However, such asylum cases are often difficult to assess, as there is often no evidence. The court shall therefore make a credibility assessment of the asylum seeker’s claim about the sexual orientation. The assessments have been criticized, because of the fact that the evaluation of evidence seems to be based on the decision-maker’s stereotypical perceptions. This essay shall therefore analyze the methods used by the migration courts to assess the asylum seeker’s sexual orientation in asylum cases. This essay shall be based on a legal dogmatic and a forensic analytical method, which provides space for analysing the issues from a gender scientific perspective. It is the asylum seeker who shall make his or her sexual orientation probable, while the migration court shall examine whether the applicant has made his or her affiliation to a specific social group probable. The court is responsible to ensure that the case is properly investigated. The court must therefore make sure to use methods and ask questions to the applicant, without violating the applicant’s right to the integrity of the person and respect for private life. The court shall not use methods and ask questions to examine the applicant’s sexual habits or to demand the applicant to demonstrate his or her sexual orientation. On the other hand, it is accepted to ask about the applicant’s insight and feelings regarding the sexual orientation and to ask about the applicant’s childhood and relationships, in order to examine the applicant’s sexual orientation. The court’s assessment of the sexual orientation is based on a credibility assessment of the applicant’s oral statement. The credibility assessment is based on a number of different criteria. The criteria the court has considered in its credibility assessment are the applicant’s general credibility and whether the statement appears to be detailed, coherent, unchanged and whether the story is without conflicting information. Regarding the credibility assessment of the applicant’s sexual orientation, specific criteria has been used by the court. In the assessment, the court has taken into account how the applicant narrates about his or her internal process, his or her insight about the sexual orientation, the process of ”coming out”, about his or her relationships with persons of the same sex and what reflections the applicant has made regarding his or her sexual orientation in the home country. In the essay, a case study is made of the Swedish migration courts’ assessments of asylum cases based on sexual orientation as a basis for protection. There are no clear guidelines for the courts, regarding the credibility assessment. The assessment differs in each case and depends partly on the applicant’s ability to narrate and partly on the decision-maker’s interpretation of the concept of credibility. What constitutes a credible statement, can therefore differ in each case. Therefore, there is no predictability in the implementation. After analyzing the different criteria, it can be concluded that the judgments in several cases are based on the judge’s stereotypical perceptions and prejudices about how homosexual and bisexual individuals should feel and think, in regard to their sexual orientation. The judge’s stereotypical perceptions are based on societal norms regarding gender and sexuality. The judge’s stereotypical perceptions can be explained as an expectation that homosexual and bisexual individuals should feel and think in a specific way, because their sexual orientation deviates from the prevailing norm in the society.
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