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Human Rights Law Review, 2022, 22, 1–31
https://doi.org/10.1093/hrlr/ngab020
Advance Access Publication Date: 6 August 2021
Article
Legal Violence and (In)Visible Families:
How Law Shapes and Erases Family Life
in SOGI Asylum in Europe
Carmelo Danisi* and Nuno Ferreira†
ABSTRACT
Studies on the Refugee Convention have paid very limited attention to the notion of
family and family rights of asylum claimants in connection with asylum claims based
on sexual orientation and gender identity (SOGI). Drawing on the notion of ‘legal
violence’, this article demonstrates the injurious cumulative eect that a heteronormative,
homonormative and Western-centered formulation and implementation of asylum and
refugee law has on SOGI claimants when it comes to intimate and family relationships.
By relying on a solid body of primary and secondary data, it explores the invisibility of
SOGI claimants and refugees’ families and how that invisibility is normalized by European
legal frameworks, such as the Dublin (III) Regulation and Family Reunication Directive.
To end this ‘legal violence’ and reconnect asylum systems with the lived experiences of
SOGI claimants, a principled approach based on human rights and specically the right
to respect for family life is suggested.
KEYWORDS:asylum, family life, children, SOGI, legal violence, Common European
Asylum System
1. LOVE AND MARRIAGE ... YOU CAN’T HAVE
ONE WITHOUT THE OTHER 1
Ideas about love, family life, sexual activity and childbearing are historically and
socially produced and dier considerably across societies, communities, sexualities and
genders.2Such notions are pervasive in our lives to such an extent that they become
ingrained in every aspect of the social and legal fabric. While this much has been well
studied, a much more neglected topic is how these notions impact on the international
protection system. How do these notions aect asylum claims and their adjudication by
public authorities? In particular, what happens when these notions have an impact on
* Research Fellow and Adjunct Professor of International Law at University of Bologna (Italy), email:
carmelo.danisi2@unibo.it
†Professor of Law, University of Sussex (UK); email: N.Ferreira@sussex.ac.uk.
1 Reference to lyrics of song ‘Love and Marriage’, popularised by Frank Sinatraand Dinah Shore in the 1950s.
2Weston,Families We Choose: Lesbians, Gays, Kinship (1997).
© The Author(s) [2021]. Published by Oxford University Press.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License
(https://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and
reproduction in any medium, provided the original work is properly cited.
•1
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2•Human Rights Law Review, 2022, Vol. 22, No. 1
asylum claims based on sexual orientation and gender identity (SOGI)? How are the
assessment of membership of a particular social group (PSG), risk of persecution and
credibility—all so crucial (and yet problematic) to the current international protection
system3—shaped by the intimate and lial relationships of SOGI asylum claimants and
refugees?
SOGI asylum matters have been the focus of an increasing number of media pieces,
NGO reports, scholarly outputs and judicial decisions over the last two decades.4While
focusing to a large extent on the way SOGI asylum claims are adjudicated, there has also
been an increasing interest in the social experiences of these claimants and refugees.
Much slower has been the investigation of how SOGI asylum claims are dealt with
when they involve family and intimate relationships, and childbearing and raising. Some
isolated eorts in the eld of SOGI asylum have put at the centre of their attention the
role of intimate relationships,5as well as childhood;6yet others explore queer ‘relations
of care’ and ‘chosen families’ in the context of international protection.7Nonetheless,
theseremainisolatedandpartialattempts.
Inthisarticle,byfocusingontheEuropeancontext,weattempttooerafuller
analysis of how ideas about relationships, children and family impact on the way SOGI
claims are adjudicated.8It will become clear throughout this article that although
legal statutes and guidance are oen appropriate and sensitive to sexual, gender and
cultural diversity, decision-making practices across Europe fall considerably short of
the necessary standards. For example, in Norway, having more than one child or more
thanoneopposite-sexpartnerhavebeenknowntoweakenSOGIclaims.
9In the
UK, both the Home Oce 2016 Sexual Orientation guidance and the 2011 Gender
Identity guidance emphasize many of the issues that campaigners and advocates have
raised throughout the years,10 including that the claimant’s credibility is not neces-
sarily undermined by having had opposite-sex relationships or children. Yet, bisexual
claimants are particularly disbelieved if they have children or have been married.11
3FosterandHathaway,The Law of Refugee Status, 2nd edn (2014).
4 Many of these will be referenced throughout this paper. For an overview of the range of materials in
question, see database available at: https://www.sogica.org/en/sogica-database/.
5 Held, ‘What Does a Genuine Lesbian/Gay Relationship Look like in the Eyes of Asylum Decision Makers?’
(2017) 44 Discover Society; Hersh, ‘Challenges to Assessing Same-Sex Relationships under Refugee Law in
Canada’ (2015) 60 McGill Law Journal/Revue de droit de McGill 527.
6 Hedlund and Wimark, ‘UnaccompaniedChi ldrenClaiming Asy lum on the Basis of Sexual Orientation and
Gender Identity’ (2019) 32 Journal of Refugee Studies 257.
7 Ritholtz and Buxton, ‘Queer kinship and the rights of refugee families’ (2021) Migration Studies.
8 In this article, we consider children anyone below the ageof 18 years, according to the denition enshrined
in Article 1 Convention on the Rights of the Child 1989, 1577 UNTS 3.
9 Gustafsson Grønningsæter, ‘Establishing a Sexual Identity: The Norwegian Immigration Authorities Prac-
tice in Sexuality-Based Asylum Cases (COC Out and Proud, 2017)’, 11, available at www.sogica.org/data
base/gronningsaeter-establishing-a- sexual-identity-2017 [last accessed 27 May 2021].
10 Home Oce, ‘Asylum Policy Instruction. Sexual Orientation in Asylum Claims.Version 6.0 (Gov.UK,
2016)’, available at assets.publishing.service.gov.uk/government/uploads/system/uploads/attachme
nt_data/le/543882/Sexual-orientation- in-asylum- claims-v6.pdf [last accessed 27 May 2021]; Home
Oce, ‘Gender Identity Issues in the Asylum Claim: Transgender (Gov.UK, 2011),’ available at: www.
gov.uk/government/publications/dealing-with-gender-identity-issues-in-the- asylum-claim- process
[last accessed 27 May 2021].
11 Lewis, ‘“Gay? Prove It”:The Politics of Queer Anti-Deportation Activism’ (2014) 17 Sexualities 958 at 965.
DustinandHeld,‘Inorout?AQueerIntersectionalApproachto“ParticularSocialGroup”Membershipand
Credibility in SOGI Asylum Claims in Germany and the UK’ (2018) 5 GenIUS 74.
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Legal Violence and (In)Visible Families •3
Similarly, the Canadian Guideline on Sexual Orientation and Gender Identity and
Expression (SOGIE) asylum claims acknowledge the diculties SOGIE claimants may
face in proving their spousal or conjugal relationships and calls on decision-makers to
consider the ‘unique circumstances’ that these claimants face.12 Nonetheless, it is well
known that same-sex relationships are oen dealt with inadequately in the Canadian
asylum system.13 Even more abhorrent practices have been reported in the past, with
Bulgarian authorities being accused of considering ‘the marital or parental status of
LGBTI applicants [as] sucient to deny granting refugee protection’.14 Moreover, as
one of our participants told us, women’s experiences of marriage (oen forced upon
them) and childbearing are recurrently used to undermine their asylum claims:
There is also that problem of ... if you come from countries where young
marriages or forced marriages are common, then you have issues like ... Imean
the recent very prominent case, long on-going case in the UK with Aderonke ...
where her claims of being a lesbian were doubted because she was once married
and had kids, but that fails to recognize the local context of the country of
origin that in many cases people don’t have a choice. (Jules, sta member at
ILGA-Europe).15
All this happens despite the UN High Commissioner for Refugees (UNHCR) SOGI
Guidelines, which so far provide the best guidance for implementing the Refugee Con-
vention through a SOGI lens, clearly stating that having married and/or hav ing children
are factors that ‘by themselves do not mean that the applicant is not LGBTI’.16 Such pre-
conceived ideas of family matters in connection with SOGI claimants will be analysed
in light of the theoretical work developed around the notion of ‘legal violence’, i.e. how
legal systems inict violence on individuals’ bodies and minds (Section 2). Against
this theoretical background, we draw from a broad documentary analysis of publicly
available international, European and domestic case law, policy documents, NGO
reports,caseles,etc.toquestionwhatroletheEuropeanhumanrightsframework,and
specicallytherighttorespectforfamilylife,mayplayinthiseld.Furthermore,weuse
primary data collected through extensive eldwork carried out across Europe between
2017 and 2019 within the context of the SOGICA project (Sexual Orientation and
Gender Identity Claims of Asylum: A European human rights challenge), with a focus
on the Council of Europe and European Union (EU) institutions, as well as Germany,
12 Immigration and Refugee Board of Canada—IRB, ‘Chairperson’s Guideline 9: Proceedings before the
IRB Involving Sexual Orientation and Gender Identity and Expression (IRB 26 April 2017),’ available at:
www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir09.aspx [last accessed 27 May
2021].
13 Hersh, supra n 5.
14 ´
Sledzi´
nska-Simon and ´
Smiszek, ‘LGBTI Asylum Claims: The Central and Eastern European Perspective’
(2013) 42 Forced Migration Review 16 at 17.
15 The case of Aderonke was widely reported in the media: Dugan, ‘Home Oce Says Nigerian Asylum-
Seeker Can’t Be a Lesbian as She’s Got Children’, The Independent, 3 March 2015.
16 UN High Commissioner for Refugees (UNHCR), Guidelines on InternationalProtection No 9: Claims to
Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2)
of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, 23 October 2012,
HCR/GIP/12/09, at para 63(vi).
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4•Human Rights Law Review, 2022, Vol. 22, No. 1
Italy and the UK as country case studies.17 These case studies were chosen on the basis
of three factors: the volume of asylum claims, the dierent adjudication procedures
adopted and the socio-cultural-legal context, particularly in relation to SOGI. Fieldwork
included: 143 semi-structured interviews with SOGI asylum claimants and refugees,
NGOs,policy-makers,decision-makers,membersofthejudiciary,legalrepresentatives
and other professionals; 16 focus groups with SOGI asylum claimants and refugees; 24
non-participant contextual observations of court hearings; and Freedom of Information
requests in Germany, Italy and the UK. These methods were complemented by two
online Europe-wide surveys of SOGI asylum claimants and refugees and professionals
working with them. This mixed-methods approach allowed us to obtain both quantita-
tive and qualitative data, which were fundamental to complement our legal analysis in
order to reach a broad and in-depth understanding of the issues in question.
Our eldwork ndings refer specically to the case studies adopted, so they are
not generalizable to all of the European context, but being Germany, Italy and the
UK all parties to the European Convention on Human Rights (ECHR) and Member
States of the EU when the eldwork was carried out, we can contextualize the country-
level ndings within cross-national frameworks and European trends, as will be seen
in Section 5. Although the situation and gravity of certain issues dier across the three
country case studies, there were strong common themes across all three of them. We
have thus opted to analyse the data along thematic lines, rather than from the point
of view of dierent jurisdictions or categories of participants (for example, claimants or
decision-makers). This approach allowed for pervasive issues across the asylum systems
in question to be identied instead of such issues being understood as isolated matters
that only aect certain jurisdictions or are only the opinion of certain actors in the
system. This is also why, as we argue here, European human rights law (if correctly
interpreted) can play a key role in the denition of appropriate common solutions to
such emerging issues.
Our analysis will proceed with an exposition of the theoretical background against
which the subsequent analysis will be carried out, namely the body of literature on
the ‘legal violence’ produced by heteronormative and homonormative readings of
applicable laws (Section 2). In Section 3, we analyse asylum authorities’ expectations
in terms of what is ‘meaningful’ in the context of intimate relationships. In Section 4, we
shi the focus to the role of children in this process, and how childbearing and child-
rearinginparticularhaveanimpactonSOGIasylumadjudication.InSection5,we
look at broader family relationships and how family reunication rules reect hetero-
and homonormative conceptions. In Section 6, we explore scope for improvement and
avenues for reform in the current asylum systems, as to reduce drastically the legal
violence suered by SOGI claimants. Section 7 concludes by arming the urgency to
end the legal violence perpetrated on SOGI claimants in the context of family-related
matters, as a human rights as well as a social pressing need.18
17 For full details of the methodology, see Danisi, Dustin, Ferreira,and Held, Queering asylum in Europe: Legal
and Social Experiences of Seeking International Protectionon g rounds of Sexual Orientation and Gender Identity,
(Springer, 2021) at ch 2, and www.sogica.org/en/eldwork [last accessed 27 May 2021].
18 Although we refer to SOGI all throughout this article, the bulk of our data and analysis pertains specically
to sexual orientation and only marginally to gender identity, as most of our participants had sexual
orientation rather than gender identity related asylum claims.
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Legal Violence and (In)Visible Families •5
2. SOGI ASYLUM SYSTEMS AS A FORM OF LEGAL VIOLENCE
The international protection system was set up to alleviate the suering of those
escaping persecution and oering them much needed protection. Yet, the current
international protection system is plagued with many shortcomings, which have been
documented and analysed.19 Those shortcomings, reected in the rules and practices
of European and domestic legal systems, trap all claimants in lengthy and Kaaesque
procedures and inadequate socio-economic conditions, aecting SOGI claimants in
very particular ways.20 Thesueringfeltbyasylumclaimantsandrefugeesisrecognized
to constitute what can be termed ‘legal violence’.
The notion of ‘legal violence’ is an analytical category that authors such as Menjívar
and Abrego have developed drawing on theories of structural and symbolic violence
(developed by Bourdieu in particular), which explore the range of actions that have a
detrimental eect on social inequality in all its expressions.21 Legal violence can thus
be understood as a sub-category of the broader notions of structural and symbolic
violence to ‘capture the normalized but cumulatively injurious eects of the law’.22
Menjívar and Abrego apply the notion of legal violence to the experiences of Central
American immigrants in the USA, by analysing their encounters with the areas of
work, family and education. The intertwinement of immigration with criminal law
leads to migrants simply hoping to survive the ‘hidden and violent eects’ of the law.23
Whether or not migrants (and refugees, we add) deserve a recognized legal status is
thus a legal construct that straties, shapes and harms life chances, future prospects
and livelihoods.24 This oen takes place through less dramatic and less visible forms
of injuries—in this case, caused by legal systems—as the scholarship on structural and
symbolic violence has highlighted.25 Even when purporting to constitute a fair and
balanced system, legal norms on migration (broadly understood) lead to short and
long-term harms, preventing many migrants from obtaining a legally recognized status
within a reasonable time period, thus undermining their eorts at socio-economic
integration.26 These forms of violence are co-constitutive, deprive individuals of their
agency and aect not only the individuals directly concerned but also their families and
networks in countries of origin.27
Menjívar and Abrego show how the violence caused by the law that governs migra-
tory journeys serves to perpetuate social inequality and rights violations.28 These
forms of structural and symbolic violence become normalized and are better under-
stood as ‘legal violence’, as—according to Menjívar and Abrego—they are ‘embedded
in legal practices, sanctioned, actively implemented through formal procedures, and
19 For example, Ferreira et al., ‘Governing Protracted Displacement: An Analysis across Global,R egional and
Domestic Contexts (TRAFIG Working Paper 3)’ (BICC, 2020).
20 Danisi et al., supra n 17.
21 Bourdieu, Masculine Domination (1998).
22 Menjívar and Abrego, ‘Legal Violence: Immigration Law and the Lives of Central American Immigrants’
(2012) 117 American Journal of Sociology 1380 at 1380.
23 Ibid. 1382.
24 Ibid. 1383.
25 Jackman, ‘Violence in Social Life’ (2002) 28 Annual Review of Sociology 387.
26 Menjívar and Abrego, supra n 22 at 1385.
27 Ibid.
28 Ibid. 1386.
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6•Human Rights Law Review, 2022, Vol. 22, No. 1
legitimated – and consequently seen as “normal” and natural because it “is the law”’.29
The law that regulates the daily movements and lives of migrants is indeed the source
of insecurity, suering and vulnerability, oen facilitated by criminal legal tools.30
This is most obvious in instances of family separation, homelessness, detention and
deportation, but also takes place in the form of lack of access to certain essential services
or goods, like education and food, or the deprivation of certain rights, like the right to
work. The end result is a ‘legal system that purports to protect the nation but, instead,
produces spaces and the possibility for material, emotional, and psychological injurious
actions’, rendering mistreatment ‘uneventful, familiar and legal’.31
The notion of legal violence has been applied by Llewellyn to SOGI asylum in the
context of the USA.32 Llewellyn concludes that ‘anti-fraud’ legal tools like restrictions
to the right to work and shiing procedural timelines lead to specic harmful eects on
SOGI claimants, namely isolation and loneliness, prolonged uncertainty, and mental
and physical vulnerability. As a consequence, ‘everyday-lived experiences of LGBTQ
asylum applicants are lled with trauma and suering in many ways imposed by the
very system that is supposed to protect them’.33
Our SOGICA participants also clearly saw some elements of the asylum system as
violent,eventhoughwedidnotexplicitlyaskthemanyquestiononthisnotion.Theway
accommodation was managed constituted one of the areas of the asylum system where
violence was most visible in the form of crowded conditions and exposure to bullying
and discrimination, while authorities did little to combat those issues.34 The detention
of SOGI claimants stood out as the worst example of legal violence, especially in the
UK.35 Moreover,Chiara,anNGOworkerinItaly,referredtotheprocedureanasylum
claimant had undergone in the context of a ‘Dublin’ return as a ‘series of instances of
bureaucratic violence’,36 andtothepoormedicalservicesoeredtoasylumclaimants
asa‘formofviolence’.Similarly,Diana,arefugeeinGermany,describedas‘violent
language’ the questions posed to claimants by the German asylum authorities.37 Diana
also described another trans refugee’s experience with a poorly skilled interpreter as
‘violence’:
The translator didn’t even know anything about being a trans person, about
operations. And one client got naked (...) because the translator didn’t want
to understand what operation from man to woman, woman to man, meant. And
then it’s totally like violence for a refugee when something like that happens.
Thefactthatvariousactorsintheasylumsystemareabletosoclearlyarticulatefeatures
of the system as ‘violent ’—even when not prompted to use that terminology—makes it
29 Ibid. 1387.
30 Ibid. 1387–1388.
31 Ibid. 1414.
32 Llewellyn, ‘Captive Whi le Waiting to Be Free: Legal Violence and LGBTQ Asylum Applicant Experiences
in the USA’ (2021) 18 Sexuality Research and Social Policy 202.
33 Ibid. Discussion.
34 Danisi et al., supra n 17 at ch 8.
35 Ibid.
36 Guild et al., ‘Enhancing the Common EuropeanA sylum Systemand Alternatives to Dublin—Study for the
LIBE Committee’ (European Parliament, 2015).
37 Federal Oce for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF).
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Legal Violence and (In)Visible Families •7
all the more striking how violent those features are. Thatclear art iculational so facilitates
greater resistance to the violent nature of the system through ‘subtle but powerful ways
in which queer and trans migrants navigate, contest, subvert, and resist ideological
practices, thus refusing to give into a regime organized to exclude them’.38
In the case of SOGI claimants, legal violence is facilitated by heteronormativity and
homonormativity. Indeed, the harmful eects suered by SOGI asylum claimants result
from heteronormative regulatory practices that may not be ‘explicitly homophobic
or transphobic in their construction, [but] they are in their consequences’.39 Jung
also asserts, in the context of the asylum system, that ‘[l]aw turns out to be a violent
governmental technology when gender and sexuality rights are used to fur ther close the
border’.40 The legal violence produced by asylum systems thus has gendered and SOGI
dimensions that need to be articulated and brought to light in more systematic ways,
clearly pointing to the linkages between law, policy and practices, on the one hand, and
(suered) trauma and violence, on the other.
A term initially coined by Warner,41 heteronormativity sets heterosexuality as the
norm, in other words, the ‘default’, and relies on static gender roles. As dened by
Lubbe, ‘[h]eteronormativity emphasizes the correctness of heterosexual dogmas and
traditional family forms while at the same time censuring, punishing, “medicalizing”,
and rendering homosexuality invisible in all of its manifestations’.42 A heteronormative
framing was patent, for example, in the 2015 debates and campaigns surrounding
refugee experiences in the Mediterranean,w hich used as trademark image a man leading
a woman holding a (female) child.43 As Carastathis and Tsilimpounidi assert, ‘[t]he
“refugee”–whetherembracedasavictimorreviledasathreat–isconstructedas
presumptively heterosexual and as (potentially) reproductive’.44 Consequently:
[S]ympathetic representations rely on the heterosexualisation of ‘refugees’—
their participation in family and kinship structures makes their loss, grief, or
vulnerability legible, as they are gendered variously as courageous but desperate
fathers, sacricing mothers, and innocent children. In hostile representations,
‘refugees’ may be said to embody ‘queer’ or ‘monstrous’ heterosexualities (refer-
ences omitted).45
Heteronormative dynamics in the asylum system are thus beyond doubt.46 Simul-
taneously, one can observe the impact of homonormativity on the asylum system.
38 For example, in the Canadiancontext , Ou JinLee, ‘Responses to Structural Violence: The Everyday Waysin
Which Queer and Trans Migrants with Precarious Status Respond to and Resist the Canadian Immigration
Regime’ (2019) 10 International Journal of Child, Youth and Family Studies 70 at 84.
39 Ibid, Introduction.
40 Jung, ‘Logics of Citizenship and Violence of Rights: The Queer Migrant Body and the Asylum System’
(2015) 3 Birkbeck Law Review 305.
41 Warner, ‘Introduction: Fear of a Queer Planet’ (1991) 29 Social Text 3.
42 Lubbe, ‘Mothers, Fathers, or Parents: Same-Gendered Families in South Africa’ (2007) 37 South Aican
Journal of Psychology 260.
43 Carastathis and Tsilimpounidi, ‘Methodological Heteronormativity and the “Refugee Crisis”’ (2018) 18
Feminist Media Studies 1120 at 1121.
44 Ibid.
45 Ibid, 1121–1122.
46 See also Luibhéid, ‘Heteronormativity and Immigration Scholarship: A Call for Change’ (2004) 10 GLQ:
AJournalofLesbianandGayStudies227.
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8•Human Rights Law Review, 2022, Vol. 22, No. 1
Homonormativity is a concept that was initially developed by Duggan and is charac-
terized as:
a politics that does not contest dominant heteronormative assumptions and insti-
tutions—such as marriage, and its call for monogamy and reproduction—but
upholds and sustains them while promising the possibility of a demobilized gay
constituency and a privatized, depoliticized gay culture anchored in domesticity
and consumption.47
In the context of asylum, homonormativity can be seen in the way adjudicators impose
on claimants certain ideas of what being ‘gay’ is and what ‘gay people’ should do and
say,48 also on matters related to relationships, children and family. While debating
hetero- and homonormativity, kinship and queer scholars have explored to what extent
it is possible or desirable for the ‘alternative social worlds’ of queer people to be accom-
modated by social and legal systems.49 Some refute the recognition of ‘household diver-
sity’ and, instead, advocate de-emphasizing ‘family’ altogether and making space for
‘other modes of relating, belonging, caring and so on’.50 A broad range of queer possibil-
ities—from polyamory to non-monogamy, from friendship-centered family to children
with three parents or more, from community-based kinship to any other possible ‘family
of choice’51—are worth nurturing but also constitute signicant challenges to law,
policyandsociety,andtheasylumandhumanrightssystemsarenoexceptiontothis.
Asylum systems thus inict violence on asylum claimants and refugees in a myriad
of ways. This violence is compounded by hetero- and homonormative dynamics in
asylum adjudication. By adopting this theoretical lens, in the next sections, we will be
able to identify and explore various forms of legal violence inicted upon SOGI asylum
claimants on account of the way asylum systems reect hetero- and homonormative
understandings of relationships, children and family.
3. SHAPING ‘MEANINGFUL’ RELATIONSHIPS THROUGH ASYLUM
As anticipated, several studies on SOGI asylum have already denounced how SOGI
claimants have to adhere to specic, culturally framed, narratives in order to avoid
disbelief by decision-makers.52 These studies have reported cases featuring SOGI
claimants who were disbelieved for having been married or having children in the
country of origin or in the host countr y, as well as for not having an ‘immutable’ identity.
Whether or not such aspects should be central to a credibility assessment (Section 6),
47 Duggan, ‘The New Homonormativity: The Sexual Politics of Neoliberalism’ in Nelson and Castronovo
(eds), Materializing Democracy: Toward a Revitalized Cultural Politics (2002) 179.
48 Danisi et al., supra n 17 at ch 7.
49 Freeman, ‘Queer Belongings: Kinship Theory and Queer Theory’ in Haggerty and McGarry (eds), A
Companion to Lesbian, Gay, Bisexual, and Transgender Studies (2007) 295; Spade, ‘IntersectionalR esistance
and Law Reform’ (2013) 38 Signs: Journal of Women in Culture and Society 1031.
50 Halberstam, ‘Forgetting Family: Queer Alternatives toOed ipal Relations’ in Haggerty and McGarry (eds.),
A Companion to Lesbian, Gay, Bisexual, and Transgender Studies (2007) at 316-17.
51 Weston, supra n 2.
52 Among many others, Jansen and Spijkerboer, ‘Fleeing Homophobia: Asylum Claims Related to Sexual
Orientation and Gender Identity in Europe’ (Vrije Universiteit Amsterdam 2011), at 47 ; Berg and
Millbank, ‘Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants’ (2009)
22 Journal of Refugee Studies 195 at 203 .
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Legal Violence and (In)Visible Families •9
too oen claimants’ relationship history is a signicant feature in determination hear-
ings.53 The reason may lay in the claimants’ account of persecution, when their SOGI
became known for living intimate or sexual moments with their (long-term or occa-
sional) partners.54 With or without such accounts, decision-makers may also require
evidence of past or current intimate relationships to establish membership of a PSG
as persecution ground under Article 1(2) of the Refugee Convention.55 Indepen-
dently of whether this information is provided voluntarily or requested explicitly, SOGI
claimants are oen put under dispropor tionate pressure to comply with an unattainable
standard of proof.56 In this context of contestation and invisibility of non-heterosexual
relationships, it is not surprising to nd out that, according to the UNHCR, many
States lack provisions for resettling refugees with a same-sex partner.57 Even worse, as
the jurisprudence of the European Court of Human Rights (ECtHR) shows, decision-
makers have used heterosexual bonds to deny a claimant’s risk of being exposed to
human rights violations upon return to his country of origin, despite evidence of
homophobic violence in that country and the applicant’s past same-sex relationships.58
In light of this background, this section explores how European asylum systems
shape what intimate relationships should look like to be considered ‘meaningful’ in
SOGI claims. Our analysis is not limited to credibility issues, as these explain only part
of the violent eects that law, policy and practices have on asylum claimants. As we
argue here, some aspects of the asylum procedure as well as accommodation provision
mutually reinforce the still widespread heteronormative understanding of family and
intimaterelationshipsincredibilityassessment.Weshowhowtheresultingcombined
eect of dierent aspects of the European and domestic asylum systems on SOGI
claimants can reach unspeakable, oen invisible, forms of violence.
It emerged across the SOGICA country case studies that SOGI claimants are oen
presumed to be gay men, with no family or intimate relationships, arriving by them-
selves from their countries. In a clear homonormative approach to asylum, the pro-
totypic SOGI refugee becomes male, partnerless and childless. Leaving aside homog-
enization concerns59 and homonationalist ideas,60 our eldwork provided evidence
of the fallacy of such assumptions. Trudy Ann and Veronica, for example, arrived
in Germany with their respective partners; Ophelie also reached Scotland with her
partner. In Italy, Dev and Fred arrived together aer a long journey through sub- and
north-Saharan countries. While the lack of legal channels for non-traditional families
normalizes the invisibility of such relationships (Section 5), travelling together does
not mitigate the risks that migrants oen encounter in their journey to Europe. For
53 Hersh, supra n 5 at 530.
54 Danisi et al., supra n 17 at ch 6.
55 Convention relating to the Status of Refugees 1951, 189 UNTS 150.
56 Danisi et al., supra n 17 at ch 7.
57 UNHCR, The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and
Refugees: Discussion Paper, 22 September 2010, at para 46.
58 M.K.N. v Sweden Application No 72413/10, Merits, 27 June 2013. In line with its usual position on
credibility assessment, for which ‘national authorities are best placed’, the ECtHRagreed with the defendant
State by denying the risk of violation of Article 3 (non-refoulement) of the ECHR upon return.
59 Danisi et al., supra n 17 at ch 10.
60 Akin and Svendsen, ‘Becoming Family: Orientalism, Homonormativity, and Queer Asylum in Norway’ in
Rohde, Braun and Schüler-Springorum (eds), National Politics and Sexuality in Transregional Perspective: The
Homophobic Argument (2018).
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10 •Human Rights Law Review, 2022, Vol. 22, No. 1
instance, considering that SOGI claimants ‘don’t (...)exhibitourcharactersorwhat
we are’ (Alain A., Italy) during their journey for security reasons, travelling together may
increase the risk of being discovered, especially in transit countries with high levels of
homophobiaandtransphobia.Thatiswhy,inordertoavoidsuspicions,MaryandZaro
decided to travel individually to the UK, despite the increased anxiety and distress that
such a solution caused them. Despite the mutual support provided during the journey,
SOGI claimants may feel forced to deny their relationships upon arrival, either out of
fear or owing to traumatizing experiences.61 In this regard, Alain A. (Italy) and Nice
Guy (Italy) each told us about the loss of their respective partners on the high seas
during their attempts to reach Europe in makeshi boats. Both were too traumatized to
report their partners’ disappearance to the Italian authorities. Nevertheless, decision-
makers failed to recognize the reasons for remaining silent in such emotionally painful
circumstances. During Nice Guy’s judicial appeal hearing, this silence was used against
him to cast doubt on his overall account and credibility, as well as to question the
‘meaningfulness’ of his relationship (Tribunal observation, northern Italy, 2018), in a
clear violence against his emotional and psychological well-being.
Yet, when SOGI claimants manifest their existing relationships to national author-
ities, including at arrival, asylum systems are not able to address their needs in a
way that prevents additional suering or distress. For example, Trudy Ann and her
partnerwereplacedindetentionwhentheyarrivedinGermany.
62 In such a situation,
while border agents applied entry procedures ‘in ways that reinforce state power and
justify structural violence’,63 they did not give any weight to their intimate relationship
and their pre-migration experience of violence in the reception arrangements oered
to them.
Our primary data suggests that several factors contribute to undermining SOGI
claimants’ ability to freely live their love and family bonds. Accommodation is a case in
point. Because accommodation services across Europe have not been designed to host
same-sex couples or to address their needs,64 they act as a magnier of legal violence.
Serious diculties in this respect were reported by our participants, as claimants are
asked to provide evidence in order to be considered a couple (Jules, sta member at
ILGA-Europe). Only asylum reception sta who have received adequate training are
able to avoid a heteronormative mind-set and show willingness to accept unocial
proof and testimonies on SOGI-specic aspects in order to prevent same-sex couples
from being separated (Giulio, LGBTIQ+group volunteer, Italy). Besides, even when
acoupleiseventuallyhostedinthesamefacility,theymaynotbeallowedtosharethe
same room. For instance, when Dev and Fred (Italy) asked to share a room as a couple,
their request was refused on the grounds that the facility was designed to only host
single (male) asylum claimants. While such a request could have been easily accepted
(as the accommodation facility had several shared bedrooms), no consideration was
given either to their right to respect to private or family life,65 or to the grounds on
which they feared persecution. Instead, Dev and Fred were—at least indirectly—asked
61 Alessi et al., ‘Traumatic Stress among Sexual and Gender Minority Refugees from the Middle East, North
Africa, and Asia W ho Fled to the European Union’ (2018) 31 Journal of Trauma Stress 805.
62 See similar accounts in Canada in Lee, supra n 38 at 80.
63 Ibid.
64 Danisi et al., supra n 17 at ch 8.
65 Article 8 ECHR 1950, ETS 140. See Section 6 below.
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Legal Violence and (In)Visible Families •11
to keep their relationship invisible to other guests to avoid abuse and discrimination,
thus suering the violence of being forcibly ‘closeted’. Similarly, although Veronica and
Juliawereabletosharearoomwiththeirtwochildren,theywereaskedtopretend
to be sisters. As Dev pointed out, ‘we still feel like in Africa’. Feelings of isolation and
distress were evident, especially when it was dicult or impossible to obtain a transfer to
another accommodation facility (amongothers, Stephen and Prince Emrah, Germany),
thuscompoundingtheviolenceoftheasylumsystemforSOGIcouples.
The worst point in this process of denial and violence against SOGI claimants’
relationships is reached in the context of credibility assessments. Literature suggests
that the lack of past or present relationships may result in asylum claims being rejected,
while there is a strong correlation between ‘credible’ intimate relationships and overall
credibility of SOGI claimants.66 Having this in mind, two dierent types of assump-
tions emerged from our data in this respect: one related to past intimate and family
relationships and another connected to expectations of intimate relationships in the
host country. In both contexts, decision-makers tend to apply their heteronormative
notions of love, intimacy, sexuality and family, with clear diculties in understanding
other(s’) experiences. No consideration seemed to be given to the violent eects
that their approach could have on claimants. As Moses (Italy) put it, ‘I haven’t even
recovered from losing my lover. ( ...) I just managed to answer all these questions,
[but] their judgement is based on how they were able to analyse the story’.
In relation to past love and family bonds, a particularly problematic approach
emerged in the UK, which is perhaps surprising in light of the legal protection provided
to SOGI minorities in this country in comparison to other European States.67 For
example, Patti, who self-identied as a bisexual woman, explained that her asylum
request was rejected for having married someone of the opposite sex:
I was refused because [the UK] Home Oce was saying, oh, if I am a lesbian, oh
that I have lived with a man, why should I have lived with a man. But I was telling
them the marriage was against my wish, yes. They said, oh, they don’t believe that.
Bisexuality disappeared in the Home Oce’s decision. Reecting a homonormative
approach (in this case the expectation being that ‘true’ members of SOGI minorities
do not marry people of the same sex), Patti was ‘transformed’ into a heterosexual who
was pretending to be a lesbian, depriving her of the chance to provide a plausible expla-
nation, thus adding layers of stress and violence to an already precarious situation. Yet,
plausible explanations can be easily found when SOGI claimants’ family relationships
are adequately contextualized in the social and legal realities of SOGI minorities in their
countries of origin. For instance, according to Diarra (Italy):
When they know you’re gay, they kill you with a stick and then you die. ( ...)I
have this son and I had a girlfriend to cover the truth, because when people know
that I have a girlfriend, they don’t know that I’m gay.
66 For instance, Hersh noticed that the relevance of relationships cannot surprise if attention is paid to the
denitions of LGB orientations in the 2012 UNHCR SOGI Guidelines based on ‘physical,romantic and/or
emotional’ forms of attraction: Hersh, supran 5 at 539.
67 ILGA-Europe,R ainbowEurope 2020 (2020), available at: www.ilga-europe.org/rainboweurope/2020 [last
accessed 27 May 2021].
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12 •Human Rights Law Review, 2022, Vol. 22, No. 1
In turn, Siri (Italy) explained the lack of contacts with a partner le behind in the coun-
tryoforigininverysimplebutstillplausibleterms,ifthesocio-economicconditionsof
claimants are integrated within the overall assessment: ‘I do not know what he is doing
now,orwhereheisbecausehehasnophone.Inourcountrythereisnothing’.
Lack of training may contribute to perpetuating these violent eects on SOGI
claimants. With no consideration for the evident diculties to prove same-sex relation-
ships in countries where claimants are persecuted on SOGI grounds, oen evidence
is still required. Jayne’s experience in the UK is illustrative of the contradictions that
emerge in decision-makers’ approach:
I put in pictures, they wanted, when I went for the interview they said they wanted
pictures of me and my ex-girlfriend and I presented, they didn’t want in their
words anything explicit. So I took some holiday pictures and put it in there, and
the judge said, they are just two women on a beach.
In other words, while decision-makers required evidence of an intimate bond but
not of a sexual nature, they nonetheless refused to discern a ‘meaningful’ relationship
from a picture featuring the couple together. Although decision-makers’ denition of
conjugality is framed in heteronormative terms, the genuineness of same-sex couples’
experiences is violently denied even when supporting evidence is submitted. This
reects a homonormative and biased assumption that SOGI minorities are not able to
build stable, monogamous and aective relationships. While the lack of a reasonable
explanation for such disbelief is the cause of much distress, the situation may become
violently unbearable when decision-makers assume that every claim is ‘fake’ as a default
position. In such a case, even the strongest evidence that SOGI claimants can submit is
immaterial. For instance, in the UK we faced the case of two claimants of the same sex
from Sri Lanka whose sexual orientation was questioned even aer they married each
other (Gary and Debbie, lawyers).
In light of these data, it is promising to come across asylum decision-makers who
question such hetero- and homonormative approaches by stressing the ‘plausibility’
of the relationship(s) rather than undermining the credibility of the claimants. For
instance,inacaseinvolvingaclaimantfromTheGambiainItaly,theadministra-
tive decision-maker (‘commissione territoriale’) did not believe that the claimant had
‘discovered’ his sexual orientation only when he was 15 and had had his rst sexual
encounters in his own place, as that would have carried the risk of being discovered
by his parents. Yet, as the appeal judge explained,68 given the claimant’s lack of nancial
resources among other reasons, it was very plausible that one would nurture intimate
relationships within one’s own home in a country where SOGI minorities are seriously
punished.
In this context, procedural arrangements that may alleviate the violence the system
perpetrates on SOGI claimants, such as sharing the burden of proof in collecting
evidence as suggested in UNHCR guidelines,69 are not regularly adopted. An example
was provided by Giulia (LGBTIQ+group volunteer, Italy), who reported the case of
68 Tribunal of Venice, judgment No 4971, 14 June 2019 (unpublished).
69 Danisi et al., supra n 17 at ch 7.
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Legal Violence and (In)Visible Families •13
the asylum applications led simultaneously by the two members of a same-sex couple.
Despite the suspicions raised by the decision-maker in relation to one of the claimants,
he chose not to crosscheck with the partner’s application to clarify the doubts that had
emerged and simply refused the claim, thus unnecessarily inicting on the claimant
theviolenceofdisbeliefanddenialofprotection.Indeed,asajudgepointedout,‘if
[twoguys]haveedthesamepersecution,thisisanelementthatmayensuregreater
truthfulness to their story’ (Silvana, Italy). These pitfalls also emerge in European
countries that were not covered by SOGICA, such as Malta, with the violent result
that claimants belonging to couples may end up in a ‘legal limbo’, following dierent
procedures and obtaining dierent outcomes.70
In relation to expectations on SOGI claimants’ lives in the host countries,71 too
oen these include intimate relationships with local lesbian, gay, bisexual, transsexual,
intersexual and queer (LGBTIQ+) people. Our data conrm such heteronormative
assumptions, considering that the lack of intimate or sexual bonds in an ‘open’ and ‘free’
European society was treated with disbelief (Maurizio, judge, Italy; survey participant
C54, UK). Claimants producing evidence of such relationships, including intimate
conversations over dating apps or romantic social media exchanges, were more likely
to be successful (Susanna, social worker, Italy; Livio, lawyer, Italy), although even
these bonds are oen assessed through heteronormative angles by focusing on the
longevity of the relationship, trust or physical and emotional connections to establish
their ‘meaningfulness’ for asylum purposes (Allan, lawyer, UK).
To sum up, with intimate relationships being a central element in the assessment
of SOGI claims across Europe, notions of love and intimacy are still heteronorma-
tively and homonormatively construed.72 As such, decision-makers do not consistently
adhere to UNHCR guidelines, which emphasize the need to adopt a non-judgmental
approach73 andrequirecoherenceandplausibilitytobethemaincriteriaforafair
credibility assessment (Section 6). Yet, in the specic context of relationships, even
plausibility risks being an insurmountable obstacle if decision-makers are resistant
to sexual, gender and cultural diversity. Such a narrow implementation of refugee
law, coupled with other problematic aspects like accommodation and procedures, is
indeed instrumental in perpetuating asylum systems that deny individual experiences
and produce systematic, but yet invisible and unaddressed, violent eects on SOGI
claimants. The investigation of the role that the—direct or indirect—involvement of
children in SOGI claims plays in this context sheds further light on these eects.
4. WHEN THE ‘PRECIOUS ONES’ BECOME DISCREDITING
Children tend to be secondary actors in the asylum system, whose range of voices
and identities scholars and activists have made a conscious eort to strengthen.74 This
70 ILGA-Europe, ‘Annual Review 2020’ (2020) at 74, available at: www.ilga-europe.org/annualreview/2020
[last accessed 5 May 2021].
71 Among others, Akin, ‘Discursive Construction of Genuine LGBT Refugees’ (2018) 23 Lambda Nordica21
at 37.
72 Similarly to other regional and national experiences: Hersh, supra n 5 at 527 .
73 UNHCR, supra n 16 at para 62.
74 Crawley, ‘“Asexual, Apolitical Beings”: The Interpretation of Children’s Identities and Experiences in the
UK Asylum System’ in Tyrrell et al. (eds), Transnational Migration and Childhood (2013).
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14 •Human Rights Law Review, 2022, Vol. 22, No. 1
includes their political and sexual identities and behaviours, and aects SOGI minority
children as well.75 Children play a very important role in adults’ SOGI claims and many
of our participants had children. Some of our SOGI claimant participants le their
children in the countries of origin and suered the violence of this separation (Jolly,
focus group No 3, Bavaria, Germany; Dev, Italy; Edith, Meggs,Miria and Stephina, UK),
others took their children with them when they escaped (Angel, Germany; Veronica
and Julia, Germany), yet others le them behind for a while but were then able to be
joined by them (Jayne, UK). In their countries of origin, children were sometimes
victims of discrimination and harassment or social services threatened to remove
them on account of their parents’ SOGI, which contributed to the decision to escape
(Angel, Germany; Veronica and Julia, Germany).76 Discrimination and harassment
oen persisted in Europe, even if oen on account of the child’s ethnicity rather than
their parents’ SOGI:
Oh god. She has been called a ‘Black b∗∗∗∗’.Shehavebeencalledan∗∗∗∗∗.
Shehavebeencalledamonkey.Shehavebeenstandingatthebusstopanda
football was kicked on her purposely. And I was told [by school authorities],
there’s nothing they can do. (Angel, Germany).
When the asylum legal procedure starts, children unwillingly take a central role. There
have been numerous studies pointing out the pernicious ways in which having children
is used as a discrediting element in their SOGI minority parents’ claims, and examples
of this can even be found in the jurisprudence of the ECtHR.77 Inthesampleofsexual
orientation claims considered by the UK Independent Chief Inspector of Borders and
Immigration in his 2014 investigation, there was a child involved in only 3 per cent of
the claims, and in none of those instances the existence of a child was used to refuse
the claim.78 Our eldwork told us a dierent, much more violent story. Reecting a
deeply homonormative view of SOGI claims, whereby the ‘genuine’ SOGI claimant
should be childless, several participants talked about children being used to discredit
claimants (Giulia, LGBTIQ+group volunteer, Italy; Chloe, NGO worker, UK; survey
75 Hedlund and Wimark, supra n 6. In our eldwork, we were told of children obtaining refugee status, both
on the basis of sexual orientation (Giuseppe, lawyer, Italy; Cristina, UNHCR ocer, Italy; Eleanor, NGO
worker, UK) and gender identity (Valentina, social worker, Italy).We also interviewed six par ticipants who
arrived in Europe while still children (Bakary, focus group No 2, northern Italy; Buba, Italy; Franco, Italy;
Osa, focus group No 4, northern Italy; Jamel, focus group No 5, southern Italy; Junio, UK), and carried
out two appeal observations involving appellants who were children at the time they rst arrived in the
UK (First Tier Tribunal, London, 2018). Our data thus spoke considerably more of children not as SOGI
claimants themselves, but rather as children of SOGI claimants, as will become apparent throughout this
section.
76 Children of SOGI minority parents living in refugee camps are aected by similar experiences of exposure
to danger on account of their parents’ SOGI: Obulutsa, ‘Lesbians, Gays Live in Fear of Attacks in Kenyan
RefugeeCamp’, Reuters, 28 April 2020.
77 M.K.N. v SwedenA pplication No 72413/10, Merits, 27 June 2013.
78 Independent Chief Inspectorof Borders and Immigration—ICIBI, ‘An Investigationinto the Home Oce’s
Handling of Asylum Claims Made on the Grounds of Sexual Orientation March–June 2014’ (Gov.UK,
2014) at 32, available at assets.publishing.service.gov.uk/government/uploads/system/uploads/attachme
nt_data/le/547330/Investigation-into-the- Handling-of-Asylum-Claims_Oct_2014.pdf [last accessed
27 May 2021].
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Legal Violence and (In)Visible Families •15
participant S4, lawyer, UK), oen with authorities not giving claimants the opportunit y
to elaborate on their experiences or answer any possible doubts of the decision-maker
(Noah, NGO social worker, Germany).
Such actions can happen right at the screening/initial interview, as Angel experi-
enced when she arrived to Germany by airplane and was asked by the policeman in the
airport how she could be a lesbian if she had a child. During the main interview, partici-
pants also experienced the disturbing power of the stereotype that SOGI minorities do
not/cannot have children:
In my interview they asked me how can I be gay and have a son. And I explained
to them, like, I just did. My son doesn’t have anything to do with my sexuality, my
son is because I wanted a child. So, not because I’m gay doesn’t mean I have no
rights to a child. ( Junior, focus group No 1, Hesse, Germany).
The extremely strong connection that exists between most parents and their children
and the pain felt at the mere thought of losing them seem to escape some decision-
makers, as the experience of Veronica and Julia (Germany) reveals:
With Julia it was the case in the interview that the decision-maker asked what will
happen when she goes back home. Julia said: ‘We lose the children because the
social workers come, it can take a while until they come but they come.’ ( ...)
And this decision-maker says: ‘Is that the worst thing that can happen to you?’
Maybe she has no children or I don’t know, but the question was really like ‘Is
that the worst?’
Aer the traumatic interview they underwent, Veronica and Julia were refused inter-
national protection, highlighting the violence of the asylum system towards SOGI
claimant parents and their children. At the appeal level, some participants also reported
that judges still found it ‘surprising’ that SOGI claimants would have children, betraying
their obvious homonormative mind-set (for instance, Emroy and Junior, focus group
No 1, Hesse, Germany). In fact, during a hearing observed in Germany (Hesse, 2018),
a judge created an overtly violent environment, refused to listen to the claimant or
witnesses, did not ask any questions to the claimant, purposefully le out of the voice-
recorded summary elements related to the claimant’s sexuality, and even stated openly:
‘This story is so deceived, it’s unbelievable! [Theclaimant] has ve children and tells me
that he is gay all the way! That is unbelievable!’79 Yet, positive examples of judges who
refuse to promote such homonormative and violent environments were also noticed.
For instance, during an observation at the First Tier Tribunal in London in 2018, and
in reply to the Home Oce presenting ocer saying ‘it was also highlighted that she
was an unreliable witness. She clearly had relations with men and she had had a son’,
the judge told the appellant: ‘the fact that you’ve had a son doesn’t mean you’re not a
lesbian’.
79 See also discussion in Dustin and Held, supra n at 11.
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16 •Human Rights Law Review, 2022, Vol. 22, No. 1
Having children also seems to impose an additional layer of burden of proof on
SOGI claimants in Germany ( Janina, lawyer; Soa and Emma, NGO workers). The
homonormative character of many decisions seems particularly stark in relation to gay
and bisexual men. Nina, a legal advisor, asserted that for asylum authorities it is hard
to understand ‘how it can work that a gay man fathers a child with a woman’. Janina,
also a lawyer, expressed concerns particularly in relation to how asylum authorities deal
with bisexuality, ‘especially with Arab men, who were, so to speak, forcibly married,
maybe even have children’. For example, there was an instance of withdrawal of inter-
national protection (‘Asylwiderrufsverfahren’) when the German asylum authority
(‘Bundesamt für Migration und Flüchtlinge—BAMF’) became aware that a male SOGI
claimant had become a father, without any enquiry into the details of the situation.
Another case regarded a claimant who was in what was eectively a forced marriage
where three children had been born; not to lose his children, the male claimant never
‘came out’ to the wife, which raised many doubts in the minds of the decision-makers
(Janina, lawyer, Germany).
What this line of reasoning in asylum decisions fails to grasp is that having children
is simultaneously the result and cause of very complex sets of circumstances. Children
of SOGI claimants were oen the result of forced marriages (Edith, UK; Meggs, UK;
Miria,UK)andsometimesevenrape(anonymousparticipant,UK).Itwasalsopointed
out to us that having children sometimes works as a ‘protective tool’, as it helps the
parents—especially mothers—be perceived as heterosexual in their home countries
(Noah, NGO social worker, Germany). Subsequently, lesbian claimants may feel under
pressure to act more ‘butch’ to be more convincing to decision-makers, but they may
also not wish to ‘out’ themselves publicly for fears over their children’s safety.80 To
theviolenceofundergoingaforcedmarriageorrape,theasylumsystemaddsthe
violence of expecting particular performances of one’s SOGI, disbelieving claimants’
SOGI and denying them international protection. Julian (focus group No 5, Bavaria,
Germany) also pointed out that many lesbian refugees wish to have children, without
that entailing any hint of bisexuality, as they would rather adopt or resort to in vitro
fertilization:
No. Having children doesn’t automatically identify you as bisexual. You can
also be a lesbian. I know friends who can have children ... most people don’t
understand this, they think that when you have a child you’ve stopped being
a lesbian. And that’s another challenge, and this Bundesamt [German asylum
authority] is making people feel guilty because they are having children, that they
are not lesbians. Honestly, that is a very big challenge.
We were also told about the violent expectation that claimants’ children be involved
during procedures, such as in the case of Harriet (focus group No 2, Bavaria, Germany),
whosechildren(aged12and15atthetime)werealsoheard.AlsoinGermany,
Veronica and Julia spent 11 hours in the BAMF venue, with two young children,
who progressively became hungry and restless, adding to the stress of undergoing an
80 Bennett and Thomas, ‘SeekingA sylum in the UK: Lesbian Perspectives’ (2013) 42 ForcedMigration Review
25 at 28.
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Legal Violence and (In)Visible Families •17
asylum interview. When claimants’ children were not taken to appeal hearings to act
as witnesses, that was used against the claimants, although the intention was to protect
children from discussions surrounding sexuality, trauma and rape (Jayne, UK).
Beyondtheirroleinthelegalclaim,childrenalsoplayedacrucialroleintheoverall
experience and journey of many SOGI claimants and refugees we met. It is known that
displacement causes much distress to refugee parents and families, on account of family
separation, loss of social support and a sense of reduced parental ecacy; yet this is oen
accompanied by increased caregiving, perseverance and additional eorts to remain
close where possible.81 Several women told us about the violence they suered when
theyhadtoleavetheirchildrentoescapeorwereseparatedfromthemagainsttheirwill
(Meggs,UK;Stephina,UK).AsStephinatoldus,‘[i]twasthemostdicultthingforme
to leave my daughter because I love her to death like, every bre in me appreciates that
I have got a child as brilliant as she is’. W hile having their children with them during the
asylum process may oer some emotional comfort against the violence of the asylum
system, it also entailed a range of complex issues related to children’s extremely limited
income, lack of employment op portunities and overall growing resentment against t heir
parents for the situation they nd themselves in and the violence they undergo within
the asylum system (Jayne, UK). If international protection is granted, SOGI claimants
whose children remained in their countries of origin oen urgently want to reunite with
their children through family reunication.
By distorting and manipulating their intimate and parenting relationships, the cur-
rent European and national legal frameworks act as normalisers of the violence suered
by SOGI claimants, as we will now discuss.
5. EUROPE AN AND DOMESTIC LEGAL FRAMEWORKS A S NORMALIZERS
OF LEGAL VIOLENCE
Considering the overall individualistic approach to the notion of refugee, considera-
tions based on family or intimate relationships are very limited within the Refugee
Convention system. Yet, owing to the severe consequences of seeking asylum on family
relationships and family unity as a fundamental human right,82 the authors of the Con-
vention recommended States parties ‘to take the necessary measures for the protection
of the refugee’s family’.83 Given the time of its adoption, it may not be surprising that,
in doing so, particular attention was devoted to refugees who are minors as well as to
those (presumably men in heterosexual relationships)w ho arethe ‘ head of the family’.84
81 Akesson and Sousa, ‘Parental Suering and Resilience among Recently Displaced Syrian Refugees in
Lebanon’ (2020) 29 Journal of Child and Family Studies 1264.
82 Article 16 of the Universal Declaration on Human Rights 1948, GA Res 217A (III), A/810 at 71 (1948).
The inuence of the UniversalDeclaration is evident in thi s context given thatthe authors of the Convention
dened family by using the Universal Declaration’s terms (‘the natural and fundamental group unit of
society’). See Recommendation B of the Final Act of the United Nations Conference of Plenipotentiaries
on the Status of Refugees and Stateless Persons, 25 July 1951. On the limits and problematic aspects of
such denition, including its still debatable heteronormative understanding, see Danisi, ‘La Tutela della
Vita Privata e Familiare nella Dichiarazione Universale dei Diritti Umani: Standard Superati o ancora
Potenziali?’ in Tonolo and Pascale(eds), La Dichiarazione universale dei diritti umani nel diritto internazionale
contemporaneo (2020).
83 Ibid. Recommendation B of the Final Act.
84 Ibid.
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18 •Human Rights Law Review, 2022, Vol. 22, No. 1
Overall, the concept of family enshrined in the Refugee Convention system is not
gender or SOGI-sensitive, thus reecting a heteronormative view of family and kinship.
On the one hand, being focused on the interpretation of the refugee denition, the
UNHCR guidelines do not emphasize that SOGI claimants may also need protection
for‘their’families.Familyisbroughttotheforefrontlargelyinnegativetermswhenfam-
ily members are agents of persecution.85 Moreover, whereas considerations of family
and intimate relationships are mostly limited to the context of credibility assessment,86
restrictions to the enjoyment of family rights are not given sucient weight in the iden-
tication of what amounts to persecution, unless cumulatively considered with other
human rights violations.87 This betrays a somewhat homonormative interpretation
of the notion of refugee and contributes to adding specic layers of violence against
SOGI claimants in terms of overall invisibility of non-traditional families and intimate
relationships. On the other hand, at least indirectly, the jurisprudence of the ECtHR
shows how national authorities undervalue SOGI refugees’ family life. A recent case
signals the risk faced by LGBTIQ+people living with their partners in Europe of being
deported to their country of origin, in violation of Article 3 ECHR, when their intimate
relationships and family lives fail to be protected under non-asylum legal frameworks,
such as family reunication.88
In this section, we thus shi from ‘protection from’ the family to ‘protection for’
the family to show how such systematic invisibility in European and national legal
frameworks and the violent eects it causes seriously aects SOGI claimants’ lives,
both in the short and long term. To this end, we analyse three dierent contexts where
claimants’ and refugees’ right to family life should be protected but, owing to their
SOGI, it seriously risks being denied. Being SOGICA country case studies all EU Mem-
bers States at the time of our research, these contexts include the implementation of
two EU-level legal tools, namely the Dublin Regulation89 and the Family Reunication
Directive,90 and the legal obstacles thatSOGI ref ugeeshave to face to enjoy their right to
have their union legally recognized across Europe.A s it will become evident throughout
this analysis, the result of these contexts is to prevent people like Buba (Italy), whose
boyfriend helped him escape but remained in their country of origin, from reuniting
85 UNHCR, supra n 16 at paras 35 and 64.
86 Ibid. 63, vi–vii.
87 Ibid. 23–24.
88 BandCvSwitzerlandApplications Nos 43987/16 and 889/19, Merits, 17 December 2020.
89 Regulation 604/2013/EU establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protectionlodged in one of the Member States by
a third-country national or a stateless person (recast) [2013] OJ L 180/31. Moregenerally, on the Common
European Asylum System (CEAS) of which Dublin is an integral part and SOGI, see Ferreira, ‘Reforming
the Common European Asylum System: Enough Rainbow for Queer Asylum Seekers?’ (2018) 5 GenIUS
25.
90 Council Directive 2003/86/EC on the Right to Family Reunication [2003] OJ L 251. This Directive
should be read in combination with the right expressed in Article 23 of the Qualication Directive on the
obligation of EU Member States to ensure the family unity of refugees (but only if family was established
before eeing persecution). See Directive 2011/95/EU on standards for the qualication of third-country
nationals or stateless persons as beneciaries of international protection,for a uniform status for refugees or
for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011]
OJ L 337/9.
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Legal Violence and (In)Visible Families •19
with his beloved one and have their family life protected in Europe, and to force partners
to undertake desperate journeys to reach Europe.
The Dublin Regulation (III) clearly states that respect for family life should be
a primary consideration in its implementation. Therefore, at least in theory, when
SOGI claimants submit an asylum application in an EU Member State, they may be
transferred to another EU Member State if they wish to be reunited with a family
member who has already been granted international protection there (Article 9) or
whoseasylumapplicationisstillpending(Article10).UndertheRegulation,the
Member State hosting the family member becomes the State responsible for assessing
their asylum claim. Yet, in all its dierent versions, the content and the implementation
of the Dublin Regulation has attracted considerable criticism for its ineectiveness in
achieving a real ‘burden sharing’ in the assessment of asylum claims submitted in, or at
the borders of, the EU, while ensuring full respect for claimants’ human rights.91 It has
also become clear that the criteria identied in the Regulation to allocate responsibility
for examining asylum applications between EU Member States specically increase the
precarious condition of SOGI claimants.92 This is the case when family and intimate
relationships are consideredeither in substantive or procedural terms, thus contributing
totheviolencecausedbytheasylumsystemtoSOGIclaimants.
93
In fact, when the individuals to be reunited are unmarried/de facto same-sex part-
ners, the possibility of being reunited with ‘the’ family member becomes illusor y, owing
above all to its heteronormative framing. First, the Regulation leaves considerable
discretion to Member States in the identication of what ‘family members’ means.
According to Article 2(g) of the Regulation, unmarried partners in a stable relation-
ship only constitute ‘family members’ where the law or practice of the Member State
concerned treats unmarried couples in a way comparable to married couples under its
law relating to third-country nationals. As a result, a Member State may choose not
to recognize as a family member the unmarried same-sex partner of a SOGI claimant,
thus preventing them from being reunited under the Dublin Regulation. Moreover, in
the case of family members whose application is still pending, the Dublin Regulation
(Article 10) requires the family relationship to have already existed in the country
of origin for the couple to enjoy the right to be reunited. SOGI claimants’ intimate
relationships built aer eeing persecution are thus legally erased, being eectively
excluded from the scope of this provision. This disregards the fact that most SOGI
claimants are only able to enter an open relationship aer eeing persecution, that is,
outside their country of origin. The deprivation of their right to respect for family life
thus adds layers of violence to SOGI claimants’ lives.
Second, although it is true that the Regulation acknowledges that in some circum-
stances there may not be any formal proof and Member States may accept circumstan-
tial evidence that is coherent, veriable and suciently detailed (Article 22(5)), the
91 Among many others, Munari, ‘The Perfect Storm on EU Asylum Law: The Need to Rethink the Dublin
Regime’ (2016) Diritti umani e diritto internazionale 517.
92 Wieland and Alessi, ‘Do the Challenges of LGBTQ Asylum Applicants Under Dublin Register with the
EuropeanCour to f HumanRights?’ (2021) 30(3) Social & Legal Studies 405; Danisi, ‘W hat “SafeHarbours”
Are There for Sexual Orientation and Gender Identity Asylum Claims? A Human Rights Reading of
International Law of the Sea and Refugee Law’ (2018) 5 GenIUS 9at19.
93 See Recitals 14-18 and Articles 9 and 10.
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20 •Human Rights Law Review, 2022, Vol. 22, No. 1
national implementation of this norm still gives rise to contradictory practice.94 For
example, when a Member State is willing to qualify SOGI claimants’ partners as ‘family
members’, the evidence produced by asylum claimants risks nonetheless being assessed
through a heteronormative lens, as shown above (Section 3). As SOGI claimants’
relationships usually lack legal recognition in their country of origin or transit (and such
lack of recognition being an element of persecution itself), the Regulation puts on these
claimants an additional evidentiary burden that compounds the violence produced by
theasylumsystem.
Third, there is no guarantee that, in implementing the right to information about
the Dublin procedure (Article 4) or during the personal interview (Article 5), Member
States provide appropriate information from a SOGI perspective on the possibility to
be reunited with their partners and other family members.95 Similarly, when children
are involved, the Regulation does not always provide appropriate weight to their best
interests,96 which may require considerations based on SOGI as well. Finally, given all
problematic aspects emerged here, both Member States and their national authorities
hardly value queer conceptions of family in implementing the Dublin Regulation.97
As a result, all kinship relations that are valuable for SOGI claimants but do not
conform to the nuclear (heterosexual) family model are forcibly le out of the scope
of the Regulation, disclosing the overall homonormative construction of the Common
European Asylum System (CEAS).
In sum, the Dublin Regulation fails to pass a ‘SOGI-sensitivity test’ as far as the
right to respect for family life is concerned. The heteronormative underpinnings of
the Dublin Regulation and its implementation pitfalls explored so far were conrmed
by our interviewees. For instance, Janina (lawyer, Germany) explained that, under
the Dublin Regulation, SOGI claimants in intimate relationships with other SOGI
claimants seriously risk being separated and sent to dierent EU Member States for
not being legally recognized as partners. As she nonetheless conrmed, it may happen
that, in implementing their discretionary powers, national authorities accept ‘informal’
evidence of SOGI claimants’ relationships to keep couples united. The uncertainty
and discretion in this respect are bound to produce violent eects on SOGI claimants’
experiences in the asylum system.
Although a reform of the Dublin Regulation is therefore urgent to stop the invis-
ibility of SOGI claimants’ families, similar concerns can be raised in relation to the
heteronormative underpinnings and implementation of the EU legal tool regulating the
right to family reunication.98 The Family Reunication Directive aims to foster the
stability of immigrants in the host community (see, for instance, Recital 4) by granting
a person legally residing in an EU Member State the right to be reunited with a family
94 UNHCR, Le in Limbo: UNHCR Study on the Implementation of the Dublin III Regulation, August 2017.
95 Similarly to the pitfalls in the implementation of the right to information on asylum and, more specically,
on SOGI asylum upon claimants’ arrival; see Danisi et al., supra n 17 at ch 6.
96 For example, the conclusions of the CJEU in C-648/11 M.A. and Others [2013] ECLI:EU:C:2013:367.
97 Ritholtz and Buxton, supra n 7 at sect 4.
98 The situation is problematica lso in Europeancountries that are not members of the EU. Forinstance, ILGA-
Europe reported that the current family reunication requirements in Norway (namely, partners must be
married, or living together for at least two years, or have children together) are ‘either impossible or too
dangerous for most LGBTI refugees to full’: ILGA-Europe, supra n 70 at 84.
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Legal Violence and (In)Visible Families •21
member living in a third country. In theory, the discretion le to Member States in
decisions allowing family reunication is very limited.99 As the Court of Justice of the
EU (CJEU) has conrmed,100 if the Directive’s conditions are met, Member States
must authorize reunication and, as far as possible, should facilitate its enjoyment.
Signicantly, in addition to other categories of immigrants, refugees are also entitled
to apply for family reunication (Articles 3 and 9 ) irrespective of the grounds of
persecution. To this end, all refugees can benet from more favourable conditions than
other addressees of the Directive (Chapter V), at least in terms of requirements relating
to the material standards of life in the EU of the person applying for reunication.
Yet, again, the conditions established by the Directive risk depriving SOGI
minorities from eectively enjoying this right. Unless the specic conditions of SOGI
claimants are fully taken into consideration and the obligation to implement the
Directive without discrimination based on sex or sexual orientation is respected,101
as Article 21 of the EU Charter of Fundamental Rights (CFR) requires,102 its
implementation may lead to a denial of reunication owing to the impossibility
of complying with requirements clearly based on heteronormative understandings
offamilyrelationships.SimilarlytowhatwesawaboveinrelationtotheDublin
Regulation, the result is a ‘clear legal insecurity’ as well as a ‘manifest discrimination’
against SOGI minorities.103 In fact, the discretion le to Member States in relation to
the recognition of unmarried partners as potential beneciaries of family reunication
(Article 4(3)), the possibility to restrict reunication only to relationships already
established ‘before’ the applicant’s entry in the EU (Article 9(2)), and the evidence
required to prove a stable long-term relationship, are particularly problematic if
evaluated through the prism of SOGI claimants’ experiences. For instance, evidence
like ‘previous cohabitation’ or ‘registration of the partnership’, as mentioned in Article
5(2), may simply not be available.104 Even when attention is focused on the concept
of ‘dependency’,105 as provided in Article 10(2), it may be impossible to prove such
dependency between SOGI refugees and their third-country partners if the couple
has always lived their relationship ‘in the closet’ in their country of origin. It goes
99 Del Guercio,‘Quali Garanzie per il Diritto all’Unità Familiare dei Richiedenti e dei Beneciari di Protezione
Internazionale con Coniuge/Partner dello Stesso Sesso?’ (2018) 5 GenIUS 59 at 66.
100 Among others, judgments in C-540/03 European Parliament v Council of the EU [2006] ECR I-05769 at
para 52 ; C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken [2010] ECR I-01839 at para 43 ;
C-133/19, C-136/19 and C-137/19 B.M.M. and Others v État Belge [2020] ECLI:EU:C:2020:577 at para
25.
101 In line with the CJEU’s case law, ‘sex’ also covers gender reassignment under the non-discrimination
provisions: see, among others, C-13/94 P v S and Cornwall County Council [1996] I-02143. As a result,
gender identity is only partly covered within the scope of the Family Reunication Directive, with the
potential exclusion of some trans refugees.
102 Charter of Fundamental Rights of the EU (CFR) [2012] OJ C 326/391.
103 Lafuente,‘Refugioy Asilo porMotivosde OrientaciónSexual y/o Identidad de Género en el Ordenamiento
Constitucional Español’ (Universitat de Valencia , 2014) (our translation).
104 For a concrete example, see the critique of the Austrian implementation of the Directive when these provi-
sions are to be applied to same-sex refugee couples in Sußner, ‘Invisible Intersections: Queer Interventions
and Same Sex FamilyReunication under the Rule of A sylum Law’ in Spijkerboer (ed), Fleeing Homophobia:
Sexual orientation, gender identity and asylum (2013).
105 Nicholson, The Right to Family Life and Family Unity of RefugeesandOthersinNeedofInternationalProtection
and the Family Denition Applied (UNHCR 2018), PPLA/2018/01, at 34 .
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22 •Human Rights Law Review, 2022, Vol. 22, No. 1
without saying that, even in this context, queer conceptions of ‘family’ relationships are
‘inexistent’ in the eyes of the law as well as of decision-makers despite their discretion
in implementing the Family Reunication Directive. When decision-makers do not use
such discretion to accept a wider variety of means of proof and family models that are
valuable (or the only legally available) for SOGI refugees, the violent process of erasing
love and family is completed.
We can address a nal context in which law acts as a normalizer of the violence
suered by SOGI claimants and refugees in Europe. In host countries where same-sex
couples may marry or enter into a registered partnership, SOGI claimants or refugees
maybeaskedtosubmitdocumentsfromtheircountryoforigin’scivilregistry,suchasa
declaration proving their unmarried or ‘free’ status,106 somethingthat canbe impossible
to obtain. Notwithstanding homonormative concerns underlying this particular aspect,
SOGICA interviewees conrmed the harm caused by such legal obstacles. Shany,
claiming asylum in Germany, pointed out that:
The guy [civil registry ocer] said ‘yeah, everything is ne [to obtain marriage
documentation]. Yeah, with your embassy, can you bring the birth certicate? I
don’t think they will give you [one]...’.So,youknow,forthepeoplewhohave
asylum, we cannot marry.
As Evelyne and Anne (lawyers, Germany) further explained, the system forces SOGI
claimants to contact the diplomatic representation of their country of origin, namely
the same ocials who might have persecuted them or did not provide protection against
persecution, no matter the additional distress and the fear this causes. Besides, there is
no guarantee that the diplomatic representation is willing to provide such documents,
even when asylum has not been requested yet. In this regard, Anna (LGBTIQ+group
volunteer, Italy) reported the case of a Russian national who found himself in a very
stressfulsituationbecausehecouldnotdecidebetweentwoevils:eitherclaiming
asylum for persecution based on his sexual orientation, with the risk of being unable
to meet his mother again in case he could not visit Russia anymore, or entering into
a civil partnership with his Italian ancé, with the risk of being unable to provide
the necessary documentation from Russian authorities and being eventually deported.
As Giuseppe (lawyer, Italy) conrmed, if the country of origin’s authorities deny the
relevant documents because thatcountr y systematically denies SOGI minorities’ rights,
Italian ocials may refuse to ociate a registered partnership unless a judge, aer
being requested to do so by the interested person, orders the ocials to proceed. This
nonetheless requires time, knowledge and nancial resources, which asylum claimants
may not have. In short, such legal obstacles may seriously reproduce the violent and
heteronormative persecutory environment that SOGI claimants have tried to escape.
The overall pressure and distress that these legal frameworks and their implementa-
tion inict on SOGI claimants were clearly articulated in the context of the SOGICA
eldwork. The diculty in getting married to one another in Germany, where they
106 See, for instance, the case of Italy according to Article 116 of the Civil Code. As Del Guercio asserts, such a
diculty may be overcome if national authorities acceptother k inds of evidence proving the ‘free status’ of
the claimant/refugee, including documentation provided by the UNHCR: Del Guercio, supra n 99 at 71.
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Legal Violence and (In)Visible Families •23
eventually claimed asylum, coupled with the pressure to prove their same-sex relation-
ship, forced Veronica and Julia to look for another EU Member State where they could
have their union recognized. As they explained:
ThatdayweyontoDenmark,toCopenhagen,becausewewanttomakea
marriage so our [asylum] case, our thing is done together, not separated. ...
There we had marriage in Copenhagen, because it is possible there that two
people who do not belong to this State, foreigners can, so to speak, marry there.
To sum up, the protection of SOGI claimants’ intimate relationships and family lives
still depends on the notion of family adopted in each (EU or national) legal framework,
as well as on the protection that the host country aords to non-traditional families and
SOGI refugees more generally—both through their laws and practices. By adopting
legal violence as the main analytical tool to explore our primary data, combined with
an exploration of the heteronormativity and homonormativity of relevant legal frame-
works, we were able to bring to light and articulate in a systematic way the violence
legitimized or produced by law and practice regulating family matters against SOGI
refugees in Europe. Rather than isolated incidents or individual opinions of some actors
in the asylum system, the themes discussed so far contribute to a clear overall picture of
a violent system. The resulting legal invisibility of SOGI claimants’ intimate and family
relationships is palpable, and a genuine improvement in this eld requires a paradigm
shi. This is why, in the next section, we elaborate on a principled approach to SOGI
claimants’ intimate and family relationships that can guide decision- and policy-makers,
either when these relationships become central to the assessment of the asylum claim
or when SOGI claimants’ families need protection.
6. REDRESSING LEGAL VIOLENCE IN SOGI ASYLUM:
A PRINCIPLED APPROACH
The analysis carried out so far highlights the urgency of introducing an alternative
approach that may prevent the dierent forms of legal violence to which SOGI
claimants and refugees are exposed in Europe. Here, we elaborate a principled approach
that is rights-orientated and based on the complex and non-linear lived experiences of
SOGI claimants and refugees. Such an approach, when applied to SOGI claimants’
family and intimate relationships, calls into question the values underlying European
legal frameworks,107 in particular the heteronormative, homonormative and Western-
based cultural understandings of decision-makers. This state of aairs is not limited
to asylum law and policy but also impinges on relevant European legal frameworks
protecting family-related rights, because these have not been designed taking into
account SOGI claimants and refugees’ realities.
For these reasons and despite the limits that will be pointed out below, the starting
point of our approach for immediate meaningful law and policy changes relies on
107 These values and the urgency of revision in the practice of States belonging to the Council of Europe are
at the heart of the Parliamentary Assembly of the Council of Europe’s concerns already expressed in 2000:
Recommendation 1470 (2000), The situation of gays and lesbians and their partners in respect to asylum
and immigration in the member states of the Council of Europe, 30 June 2000.
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24 •Human Rights Law Review, 2022, Vol. 22, No. 1
human rights. These can provide answers to the protection needs of claimants’ and
refugees’ families by informing and complementing the Refugee Convention system.
More specically, we refer to the right to respect for family life as protected by relevant
human rights frameworks, a right that claimants and refugees are entitled to enjoy
without any discrimination based on SOGI or on any intersection between these or
other characteristics.108 Before investigating how such a guarantee can nd concrete
application to build fairer asylum systems for SOGI refugees, a preliminary understand-
ing of this right as applied to SOGI minorities is necessary. Maintaining our focus at
the European level, Article 8 ECHR has never been explicitly interpreted in relation
to SOGI claimants’ intimate or family relationships. However, it has been read in a
way that protects non-heterosexual relationships,109 as well as refugees’ family unity,110
either in terms of reunication or in relation to deportation. The jurisprudence of the
ECtHR indeed moves into two dierent, but intersected, directions. On the one hand,
the concept of family includes de facto relationships that are essentially stable.111 On
the other hand, contracting States may be obliged to authorize family reunication
when otherwise an unjustied interference with the enjoyment of the right to family
life would occur.112 Similarly the CFR, especially its Article 7 protecting family life
alone or in combination with Article 21 on non-discrimination,113 must inform all
EU legislation and policy on both asylum and family-related rights. On these grounds,
the CJEU reached interpretations of EU law that can be useful to broaden the scope
of the EU legal frameworks explored above to address SOGI claimants’ and refugees’
specic family needs. For example, it found that a third-country national, who married
an EU citizen in a Member State where same-sex marriage is allowed, cannot be
denied the right to reside in the territory of the Member State of which their same-sex
partner is a national only because such a Member State does not recognize same-sex
marriages.114
What could this evolution mean for reducing the legal violence perpetrated against
SOGI claimants and refugees? Some have argued that the intersection of these separate,
but complementary, guarantees—as refugees and as SOGI minority members—may
avoid the formal (but unfair) equal treatment of opposite- and same-sex refugee cou-
ples.115 Our principled approach goes even further. It argues that such legal develop-
ments in human rights law may inform valuable solutions to the dierent—but similarly
detrimental—instances of legal violence that emerged in the previous sections while
combatting the invisibility of SOGI claimants’ intimate relationships and families.
Let us address rst the issues that have emerged when asylum systems deal with
SOGI claimants’ intimate and family relationships. A principled approach requires
national authorities to design solutions to maintain family unit during the reception
108 Ibid. paras 6-7.
109 Schalk and Kopf v Austria Application No 30141/04, Merits, 24 June 2010 at para 94.
110 Mugenzi v France Application No 52701/09, Merits, 10 July 2014 at para 54.
111 Pajic v Croatia Application No 68453/13, Merits, 23 February 2016 at paras 61–68.
112 Ibid. para 84.
113 See Article 52 CFR, according to which the CFR should be given the same interpretation of the ECHR in
caseofsimilarprovisions,whichisthecaseofArticle7CFRandArticle8ECHR(althoughhigherstandards
of protection are not precluded by the CFR: see Article 53 CFR).
114 C-673/16 Coman and Others [2018] ECLI:EU:C:2018:385 at paras 48-51, 56.
115 DelGuercio,supran99at64.
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Legal Violence and (In)Visible Families •25
phase, either by setting up specic SOGI accommodation units or, if placed in shared
accommodation, by allowing SOGI claimants to occupy the same room as their part-
ners and children. Only individualized solutions can simultaneously secure SOGI
claimants’ rights to family life, privacy, non-discrimination and freedom from any kind
of abuse and harassment by other actors in the asylum system, which are all rights
protectedatEuropeanlevelbyboththeECHR(respectively,Articles8,14and3)and
the CFR (respectively, Articles 7, 21 and 4). In other words, the status of LGBTIQ+
people and their partners as asylum claimants does not take them out of the scope of
application of such rights, but demands instead appropriate solutions for facilitating the
enjoyment of those rights.
In terms of asylum procedure, a rights-based approach can guide decision-makers in
atleasttwodierentways.First,inlinewiththeCJEUcaselaw,
116 SOGI claimants have
the right to a dignied interview, which entails an obligation to refrain from questions
about sexual practices with past or current partners or from asking for evidence of sexual
nature. In this respect, the UNHCR SOGI Guidelines have also claried that it would
‘be inappropriate to expect a couple to be physically demonstrative at an interview as a
way to establish their sexual orientation’.117 Second, while the asylum process is essen-
tially framed around the need for an individual assessment, same-sex couples claiming
asylum should be granted the possibility to be heard together if they request so, whereas
thepresenceofchildrenshouldbedecidedinlightofconsiderationsprimarilybased
on their best interests. As Livio (lawyer, Italy) pointed out, claimants are only rarely
heard as a couple, but there is no clear explanation whether this state of aairs is due to
decision-makers (who may not allow similar requests) or to claimants (who may not
beawareofthispossibility).Yet,jointhearingsinSOGIasylumclaimscanbeauseful
tool for decision-makers to verify inconsistencies in testimonies, while simultaneously
balancing the unequal power relations that characteri ze asylum inter views.118 Although
Silvana (judge, Italy) agreed on the positive eects of such procedural arrangements in
terms of credibility, she rightly cautioned us to the fact that joint hearings risk being
used by some decision-makers as a way to ‘prove’ claimants’ SOGI, as it happens with
the testimony of partners in host countries. In her own words, ‘for me it is immaterial
whether you have or had a heterosexual or same-sex relationship. ... Only the way you
are perceived in your country of origin is fundamental’.
This brings us to asylum adjudication and credibility issues surrounding claimants’
intimate relationships. It is worth remembering that, according to UNHCR guidance,
‘[c]redibility is established where the applicant has presented a claim which is coherent
and plausible, not contradicting generally known facts, and therefore is, on balance,
capable of being believed’.119 A s both the CJEU and domestic highest judicial instances
have conrmed in relation to SOGI claims,120 thefocusinrefugeestatusdetermination
procedures should be placed on the reasons why claimants risk being persecuted. So,
116 C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie [2014] ECLI:EU:C:2018:877,
on which Ferreira, supra n 89 at sect. 2.2.
117 UNHCR, supra n 16 at para 64.
118 Danisi et al., supra n 17 at ch 6.
119 UNHCR, Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, at para 11.
120 C-473/16 F. v Bevándorlási és Állampolgársági Hivatal [2018] ECLI:EU:C:2018:36; ItalianSupreme Court,
judgment No 2875/2018, 6 February 2018.
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26 •Human Rights Law Review, 2022, Vol. 22, No. 1
rather than investigating claimants’ ‘actual’ SOGI, decision-makers should investigate if
claimants have reasons to fear persecution ‘on account of’ their—real or perceived—
SOGI. Yet, current asylum systems still connect a positive credibility assessment with
proving claimants’ identity through Western-based, homonormative ideas of same-sex
relationships, whereas the focus should be placed on the plausibility of SOGI claimants’
overall accounts. Past or current intimate and family relationships (or lack thereof)
should only be relevant for the purposes of assessing that risk of persecution. That is why
UNHCR SOGI Guidelines emphasize that investigating ‘romantic and sexual relation-
ships ( ...) is not [in itself] an eective method of ascertaining the well-foundedness
of the applicant’s fear of persecution on account of his or her [SOGI]’.121
The variety of experiences in intimate and family relationships should therefore
conrm the plausibility of dierent testimonies rather than undermine claimants’ cred-
ibility. For example, the absence of intimate or sexual relationships in the country of
origin can be an indication that claimants accepted being denied the right to enjoy
their right to family life in order to avoid harm, rather than signalling a fake claim.
Conversely, considering that SOGI is oen dened in terms of identity,122 claimants
maybeeasily persecuted irrespective oftheir relationshipsifacertain (non-heterosexual
or non-cisgender) SOGI is essentially imputed to them. If one bears in mind situations
of post-traumatic stress disorder and internalized homophobia, besides the obvious
diculty to discuss such private matters with a stranger, it is equally plausible that a
claimant may be reluctant to discuss aspects of their past or current relationships in
an asylum interview.123 Similarly, as past literature has already shown and SOGICA
participants conrmed, decision-makers may nd reasonable explanations for the lack
of relationships in the host country if attention is paid to the lived experiences of SOGI
claimants,which include experiencesoftrauma,124 feelingsof fear or shame,125 mistrust
or dissociation,126 discrimination on ethnic grounds and socio-cultural dierences, as
well as lack of economic resources to be involved with the local LGBTIQ+community.
Most importantly, from a human rights perspective, the right to respect for private
andfamilylifeundertheECHRandtheCFRcouldalsobereadastherightnotto
have intimate or family bonds. As with everyone else, SOGI claimants cannot be told
how this right should be enjoyed, including for the purpose of obtaining international
protection. All in all, if the right to respect for family life is duly interpreted and applied
within asylum systems, there is scope for improvement in preventing the violent eects
that law and policies produce on SOGI claimants and refugees.
When intimate or family relationships are reported by the claimant, it is essential
to question heteronormative, homonormative and culturally biased assumptions to
understand apparent inconsistencies before rejecting the claim on grounds of lack of
credibility. For instance, it is entirely plausible that past or current marriages or having
children have been ways to escape persecution, especially when family members are
121 UNHCR, supra n 16 at 63, vii.
122 See the (problematic) statement made on this point even by UNHCR in its SOGI Guidelines: ibid.
123 Hersh, supra n 5 at 543 .
124 Alessi et al., supra n 61 at 805.
125 Berg and Millbank, supra n 52 at 201.
126 Hersh, supra n 5 at 546.
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Legal Violence and (In)Visible Families •27
the agents of that persecution.127 These explanations may be hardly acceptable to
decision-makers who conceptualize SOGI claimants’ intimate relationships within a
heteronormative paradigm. Some sort of cohabitation, long-term and/or monogamous
commitments, shared everyday life activities or expectations of romantic feelings or
continuous contacts, are still used to assess the ‘meaningfulness’ of an intimate rela-
tionship, although the socio-cultural background and legal realities of SOGI minorities
clearly make it plausible for such elements to be absent in some claimants’ experiences.
A good example of what a principled approach instead requires was reported in Italy.
Being aware of the inuence of biased assumptions in SOGI asylum claims, a decision-
maker granted refugee status to a married man who had no intention of divorcing
his wife because, as a religious leader, he wanted to save his reputation within the
community by not revealing his sexual orientation (Roberto, Italy), thus sparing the
claimant the violence of a ‘forced divorce’ in order to obtain international protection.
For asylum adjudication to take place in fair and culturally appropriate terms, the
acceptance that the right to family life can be enjoyed in very dierent ways and should
be protected in dierent contexts becomes therefore paramount.
When children are involved, a rights-based approach should combine respect for the
right to family unity with considerations based on the principle of the best interests of
thechild,whichndsitsprimarylegalbasisinArticle3oftheConventionontheRights
of the Child.128 While the need for child-friendly procedures was already pointed out,
such a right can play a fundamental role also in the adjudication of asylum requests
submitted by SOGI claimants eeing persecution with their children. The Committee
on the Rights of the Child’s approach in its rst-ever decision involving SOGI asylum
is a case in point.129 In evaluating under the Convention the possibility of returning a
family to a country where legislation discriminates against sexual and gender minorities,
the Committee on the Rights of the Child contested the national authorities’ argument
according to which the threshold of persecution was not met because the family only
experienced discrimination in their country of origin. It thus found that the national
authorities had failed to carry out a proper asylum assessment, because the impact of
violence and harassment in a homophobic society in the country of origin had not
been considered in their evaluation of the risk of refoulement. Consequently, only an
assessment that takes due account of children’s best interests to live safely and receive
appropriate care in a way that would eectively ensure their holistic development can
avoid the risk of producing an irreparable harm, in other words violence, to SOGI
claimants’ children. This approach is certainly required in the event of return but can
have wider implications if duly applied to all aspects of SOGI families’ asylum journey.
In short, when the lived experiences of SOGI claimants and their family rights
are taken seriously, the violent eects generated by asylum and migration rules and
their implementation (Sections 3, 4 and 5) can be considerably reduced. The prin-
cipled approach delineated here can help combat the invisibility of SOGI claimants’
127 For instance,Jansen, ‘Pride or Shame? Assessing LGBTI Asylum Applications in the Netherlands Following
the XYZ and ABC Judgments’ (COC Netherlands, 2019) at 99.
128 This principle is also armed in Article 24 CFR and is regularly considered in the interpretation of the
ECHR. For a discussion on how this principle nds application in migration, see Crock and Benson (eds),
Protecting the Migrant Child (2018).
129 A.B.v. Finland (51/2018), Views, CRC/C/86/D/51/2018.
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28 •Human Rights Law Review, 2022, Vol. 22, No. 1
and refugees’ intimate relationships and families in European legal frameworks. This
requires a re-denition of the concept of family in asylum and migration in compli-
ance with evolving human rights standards. In these contexts, many European States
still adopt a narrow denition that is based on the Western, heteronormative and
nuclear idea of family.130 Expanding the concept of family for asylum purposes is
required by the obligation to ensure that SOGI claimants and refugees do not suer
discrimination of any kind in their enjoyment of rights protecting their intimate and
family relationships, as European Courts have made it clear. This also includes indirect
discrimination, which may occur when legal frameworks set marriage or another form
of legal recognition as a condition for enjoying a right or benet and treat all unmarried
couplesequally,thusignoringthesituationofsame-sexcoupleswhomaynotbeableto
marry (in their country of origin or in their host country).131
Consequently, if human rights are to inform the next EU reforms of CEAS132
and related migration legislation, the recast of the Dublin Regulation and the Family
Reunication Directive must include some important changes. A reform should treat
unmarried partners as family members by default, with no discretion for Member
States as far as family reunication is concerned. As the CJEU’s reasoning in Coman
suggests,133 such lack of discretion would not impinge on the competences of Member
States in family law because national authorities would remain free to decide whether
or not to allow marriage and/or other forms of legal recognition for same-sex couples.
If specic SOGI considerations apply, new legislation in these elds should clearly
identify SOGI claimants and refugees’ family members as beneciaries of all measures
protecting the right to family life, with no requirements in terms of recognition of their
relationship and related evidence.134 Thus, a preliminary condition for all measures
advanced here is the adoption of a univocal gender-neutral denition of family—one
that explicitly includes same-sex partners irrespective of their marital status—in Article
2 of the proposed Qualication Regulation, it being the common reference for all
CEAS instruments. To improve conditions upon arrival, the future CEAS reform could
include SOGI claimants in the group of people with particular needs in Article 2 of the
proposed Reception Conditions Directive recast. This addition would require national
authorities to pay greater attention to the specic conditions of SOGI minorities and
greater chances to identify and address specic family needs during the individual
assessment of each claimant. If the Dublin Regulation applies as well upon arrival, a
130 Nicholson, supra n 105 at 35.
131 For ananalogous situation, see Taddeucciand McCall v. Italy Application No 51362/09, Merits,30 June 2016
at paras 95–98. This is especially the case for SOGI because, accordingto the ECtHR, w herea di erencein
treatment is based on sexual orientation or gender identity the State’s margin of appreciation is narrowand,
even if very serious reasons can be advanced to justify such a treatment, dierences based solely on SOGI
considerations are unacceptable under the Convention. The same is true for dierences based on ethnic
origin that may include refugees: Biao v. Denmark Application No 38590/10, Merits, 24 May 2016 at para
138.
132 Ferreira, supra n 89.
133 Coman and Others, supra n 114 at para 37.
134 In this respect, as for reunication, the 2014 Commission’s guidance would certainly be a good starting
point in light of the restrictive interpretation of the derogations that Member States may adopt in relation
to refugees’ reunication. See EU Commission, Communication from the Commission to the European
Parliament and the Council on Guidance for Application of Directive 2003/86/EC on the Right to Family
Reunication (COM/2014/0210 nal), 3 April 2014, at 20.
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Legal Violence and (In)Visible Families •29
principled solution would at least allow SOGI claimants to be reunited and accom-
modated with their unmarried same-sex partner already in the EU, even when their
relationship developed outside their country of origin. The criteria for determining the
Member State responsible for the evaluation of the asylum request as established in
Chapter III of the Dublin (III) Regulation, the dependency clause (Article 16) and the
related evidentiary standards should all be revised accordingly in future reforms, be it a
recast of that Regulation or a new Regulation replacing the Dublin system.135
For the specic purpose of reunication, in addition to expanding the notion of
‘family members’ by limiting Member States’ discretion in this regard, the recast of
the Family Reunication Directive should also cover those relationships built aer
eeing persecution as well as actual dependants in light of the cultural context of SOGI
claimants and refugees, which may allow, for instance, the children of one’s partner to be
reunited despite the lack of formal recognition (for instance, by amending accordingly
Articles 4, 5, 9, 10 and 11).136 A similarly culturally sensitive approach should also apply
not to make the enjoyment of the right to family life dependent on specic documen-
tation from the country of origin, such as in the case of marriage or civil partnership.
SuchanapproachalreadyndssupportintheEuropeanCommission’sguidanceinthis
eld when it arms that national authorities need to ‘take into account the particular
situation of refugees who have been forced to ee their country and prevented from
leading a normal family life there’,137 something that requires ‘a balanced and reasonable
assessment in every individual case of all the interests at play’.138
We are conscious that the principled approach elaborated so far has some limits, as
it does not go as far as contesting central elements of the heteronormative structure
of society, such as stable partnerships and the nuclear family, as queer theories would
suggest.139 Queer ‘chosen’ ties, here meant as the variety of kinship that sexual and
gender minorities develop in their lives such as non-monogamy, non-couple centered
or extended relationships, risk being deprived of protection if the proposed reforms
do not also lead to the deconstruction of cisheteronormative assumptions behind the
notion of family itself. The implications of a more ambitious approach were evident
across the SOGICA country case studies. Even dening a partner simply as a ‘friend’
rather than ‘boyfriend’ raised suspicion in some decision-makers, signalling a lack of
understanding of the personal or cultural reasons for using such a term and, more
broadly, of queer ‘chosen’ ties (Tribunal observation, northern Italy, 2018). Yet, while
we do not reject a more radical reform to be pursued in the long term, we have opted for
135 On 23 September 2020, in the context of the ‘New Pact on Migration and Asylum’, the Commission
proposed to replace the Dublin (III)R egulation with a new Regulation on Asylum and Migration Manage-
ment (COM(2020) 610 nal). However, as the Commission stated, the ‘current criteria for determining
responsibility are essentially preserved’ (para 5 of the proposal), although it aims to expand the family
denition and allow for more exible evidentiary rules in order to facilitate family reunication mostly in
line with the approach here suggested.
136 Given the diculties inherent in the asylum process, it would be equally important to avoid preventing
partners from enjoying family reunication with SOGI claimants/refugees in the event they qualify for
international protection as well, if they wish to. Recital 38 of the proposedQualication Reg ulationshould
be revised accordingly.
137 EU Commission, supra n 134 at para 6.1.
138 Ibid.
139 Ritholtz and Buxton, supra n 7.
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30 •Human Rights Law Review, 2022, Vol. 22, No. 1
a more cautious approach. In fact, a change in European and national legislation would
have more chances to ensure immediate protection to people eeing homophobia and
transphobia if it is clearly anchored to the current evolution of human rights standards
on family life and the protection of children. To this day, such an evolution hardly covers
queer kinship, being mostly based on the reproduction of the same heteronormative
structure of family when it comes to the protection of SOGI families. A more ambitious
approach would lead to questioning even the values on which human rights themselves
are currently based, which is a process that does not t the urgency of immediate needs
of SOGI claimants and refugees.
In sum, only an approach based on clear principles for interpreting and implement-
ing law in a way that facilitates the enjoyment of human rights protecting private and
family life and, to the greatest extent possible, contests heteronormative,homonorma-
tive and culturally biased notions may combat the legal violence currently inicted on
SOGI claimants and refugees. Simultaneously, it may empower this group by ensuring
that their intimate and family relationships are nally visible, socially recognized and
legally protected.
7. CONCLUSION
Bringing the teenage years of SOGI minorities to light for the rst time in the Italian
context, Paterlini stated in a seminal queer book that owing to the silence around
the topic, ‘it does not exist. Prostitution, violence [against young LGBTIQ+people],
yes, these come out a lot. Normality remains totally buried, or better, removed’.140
Something similar seems to happen to intimate and family relationships of SOGI
asylum claimants and refugees. Law renders invisible these relationships, unless these
are depicted in terms of suering and abuse. This invisibility inicts violent eects on
claimants, refugees and their children, and translates into a silence that perpetuates a
system that does not address their family-related rights and needs.
This article has demonstrated how the content and the implementation of European
asylum and family legal frameworks produce serious forms of legal violence. Focusing
on the intimate and family relationships of SOGI claimants, we captured ‘the normal-
ized but cumulatively injurious eects of the law’,141 which shape and oen erase SOGI
claimants’ life experiences to t pre-conceived hetero- and homonormative notions of
sexuality, intimacy, love and family. In doing so, the analysis has stressed the increasing
contradiction between the assessment of past and current love and family bonds during
the asylum determination and the (lack of) protection that the European framework
oers to SOGI claimants and refugees when these relationships exist.
To move towards better legal frameworks as well as a fairer implementation of
European and national law, we have advocated in favour of a principled approach based
on human rights. Despite its limits in addressing all queer ‘chosen’ ties, the suggested
reforms would lead to asylum systems that are designed and implemented in a way
that acknowledges the social and legal experiences of SOGI claimants and refugees and
ensures that their intimate and family relationships are protected by the right to private
andfamilylifeasenshrinedintheECHRand,whereapplicable,theCFR.Thisincludes
140 Paterlini, Ragazzi che amano ragazzi (1998) at 1 (our translation).
141 Menjívar and Abrego, supra n 28 at 1380.
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Legal Violence and (In)Visible Families •31
avoiding requirements that this group could hardly satisfy when they wish to enjoy, or
build a new, family life. It entails that considerations based on the best interests of the
child should also be an integral part of SOGI asylum. Signicantly, this rights-based
approach can also contribute to treating more fairly SOGI minority asylum claimants
with claims based on persecution on non-SOGI grounds, as well as other claimants
and refugees with non-traditional families. It is imperative that we ght the instances of
‘state-sanctioned brutality’ we explored in this article.142 This may seem like a utopia,
but ‘[c]oncrete utopias are the realm of educated hope’.143
ACKNOWLEDGEMENTS
Although this contribution is a collective work, each co-author took the lead in produc-
ing the rst dra of a selection of sections, as follows: Carmelo Danisi led on Sections
3, 5, 6 and 7 and Nuno Ferreira led on Sections 1, 2 and 4. This contribution has been
produced within the context of the project ‘Sexual Orientation and Gender Identity
Claims of Asylum: A European human rights challenge - SOGICA’ (www.sogica.org).
This project has received funding from the European Research Council under the EU
Horizon 2020 research and innovation programme (grant agreement No 677693). The
authors wish to thank the anonymous referees, Moira Dustin, Nina Held, Grace Jansen
in de Wal, Samantha Velluti and Philip Bremner for their constructive feedback on
earlier dras.
142 Lee, supra n 38 at 85.
143 Muñoz, Cruising Utopia: The Then and There of Queer Utopia (2009) at 3.
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