The UK Home Office published a new guideline on the situation of LGBTI persons in Afghanistan. The guideline provides specific country of origin information and policy guidance to Home Office decision makers handling asylum claims. Despite recognising that homosexuality is criminalised in Afghanistan and that LGBT people are ostracised by their families and by public authorities, the guideline also defends that “a practising gay man who, on return to Kabul, would not attract or seek to cause public outrage, would not face a real risk of persecution”.

The understanding that Afghan gay men can avoid persecution by concealing their sexual orientation was criticised by human rights organisations. “Living a life where you are forced to lie every day about a key part of your identity, and live in constant fear of being found out and harassed, prosecuted or attacked, is exactly the kind of persecution asylum laws are supposed to prevent.”, stated Heather Barr, Senior Researcher at Human Rights Watch. Media reports that the Home Office did not comment on the content of the guideline itself and simply affirmed that each claim will be considered on its individual merits.

The guideline contradicts the understanding of the UNHCR and of the Court of Justice of the European Union (CJEU). On its Guidelines no. 9, the UNHCR concluded that expecting an applicant to be “discreet” about his/her sexual orientation is not a valid reason to deny refugee status. Similarly, the CJEU ruled in X, Y, Z v Minister voor Immigratie en Asiel that applicants cannot be reasonably expected to ‘conceal their homosexuality in their country of origin’ or ‘to exercise reserve in the expression of their sexual orientation’.

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Photo: (cc) Carl Montgomery