Carlos Bringas-Rodriguez v. Eric Holder, Jr.

Filing

FILED OPINION (SIDNEY R. THOMAS, DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD R. CLIFTON, CARLOS T. BEA, MILAN D. SMITH, JR., MORGAN B. CHRISTEN, JOHN B. OWENS and MICHELLE T. FRIEDLAND) The respondent, Attorney General Jefferson B. Sessions III, shall bear the costs on appeal. GRANTED; REMANDED. Opinion by Judge Wardlaw; Concurrence by Judge Clifton; Dissent by Judge Bea. FILED AND ENTERED JUDGMENT. [10347634]

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Distr. GENERAL

HCR/GIP/12/09

23 October 2012

Original: ENGLISH

GUIDELINES ON INTERNATIONAL PROTECTION 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

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United
Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Convention relating to the
Status of Refugees and Article II of its 1967 Protocol. These Guidelines complement the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951 Convention (Reissued, Geneva, 2011).
In particular, they should be read in conjunction with UNHCR’s Guidelines on International Protection No.1:
Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol
relating to the Status of Refugees (May 2002); UNHCR’s Guidelines on International Protection No. 2:
"Membership of a Particular Social Group" Within the Context of Article 1A(2) of the 1951 Convention and/or its
1967 Protocol Relating to the Status of Refugees (May 2002); and UNHCR’s Guidelines on International
Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967
Protocol relating to the Status of Refugees (April 2004). They replace UNHCR’s Guidance Note on Refugee
Claims relating to Sexual Orientation and Gender Identity (November 2008).
These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners,
decision makers and the judiciary, as well as UNHCR staff carrying out refugee status, determination under its
2017
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mandate.
n Ma
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6 arc
7268
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Guidelines on
o. 13
n at:
International Protection are available as a compilation s, Nhttp://www.unhcr.org/refworld/docid/4f33c8d92.html.
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I. INTRODUCTION
1.

In many parts of the world, individuals experience serious human rights abuses and other forms of
persecution due to their actual or perceived sexual orientation and/or gender identity. While persecution of
1
Lesbian, Gay, Bisexual, Transgender and Intersex (hereafter “LGBTI”) individuals and those perceived to
2
be LGBTI is not a new phenomenon, there is greater awareness in many countries of asylum that people
fleeing persecution for reasons of their sexual orientation and/or gender identity can qualify as refugees
under Article 1A(2) of the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol
3
(hereafter the “1951 Convention”). Nevertheless, the application of the refugee definition remains
inconsistent in this area.

2.

It is widely documented that LGBTI individuals are the targets of killings, sexual and gender-based
violence, physical attacks, torture, arbitrary detention, accusations of immoral or deviant behaviour, denial
of the rights to assembly, expression and information, and discrimination in employment, health and
4
education in all regions around the world. Many countries maintain severe criminal laws for consensual
same-sex relations, a number of which stipulate imprisonment, corporal punishment and/or the death
5
penalty. In these and other countries, the authorities may not be willing or able to protect individuals from
abuse and persecution by non-State actors, resulting in impunity for perpetrators and implicit, if not explicit,
tolerance of such abuse and persecution.

3.

Intersecting factors that may contribute to and compound the effects of violence and discrimination include
sex, age, nationality, ethnicity/race, social or economic status and HIV status. Due to these multiple layers
of discrimination, LGBTI individuals are often highly marginalized in society and isolated from their
communities and families. It is also not uncommon for some individuals to harbour feelings of shame
and/or internalized homophobia. Because of these and other factors, they may be inhibited from informing
asylum adjudicators that their real fear of persecution relates to their sexual orientation and/or gender
identity.

4.

The experiences of LGBTI persons vary greatly and are strongly influenced by their cultural, economic,
family, political, religious and social environment. The applicant’s background may 017
2, 2 impact the way he or
she expresses his or her sexual orientation and/or gender identity, or mayMarch the reasons why he or
n explain
o
she does not live openly as LGBTI. It is important that decisionsarchLGBTI refugee claims are not based on
on ived
6
superficial understandings of the experiences of LGBTI3-7268
persons, or on erroneous, culturally inappropriate
.1
,
or stereotypical assumptions. These Guidelines No
ions provide substantive and procedural guidance on the
esson the basis of their sexual orientation and/or gender identity,
determination of refugee status of individuals
v. S
uez
with a view to ensuring as-Rodrig and harmonized interpretation of the refugee definition in the 1951
proper
6
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Convention.
in Br
cited

II. INTERNATIONAL HUMAN RIGHTS LAW
5.

Article 1 of the Universal Declaration of Human Rights provides that “all human beings are born free and
equal in dignity and rights”, and Article 2 declares that “everyone is entitled to all the rights and freedoms
7
set forth in this Declaration”. All people, including LGBTI individuals, are entitled to enjoy the protection
8
provided for by international human rights law on the basis of equality and non-discrimination.

6.

Although the main international human rights treaties do not explicitly recognize a right to equality on the
9
basis of sexual orientation and/or gender identity, discrimination on these grounds has been held to be

1

For a discussion of terms, see below at III. Terminology. For the purpose of these Guidelines, “gender identity” also incorporates “intersex”.

2

The 1951 Convention relating to the Status of Refugees was drafted not least as a response to the persecution during World War II, during which intolerance and
violence cost the lives of thousands of people with a LGBTI background. See, UNHCR, “Summary Conclusions: Asylum-Seekers and Refugees Seeking Protection on
Account of their Sexual Orientation and Gender Identity”, November 2010, Expert Roundtable organized by UNHCR, Geneva, Switzerland, 30 September–1 October
2010 (hereafter “UNHCR, Summary Conclusions of Roundtable”), available at: http://www.unhcr.org/refworld/docid/4cff99a42.html, para. 3.

3

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951; Protocol Relating to the Status of Refugees, 31 January 1967.

4

See, UN Human Rights Council, “Report of the United Nations High Commissioner for Human Rights on Discriminatory Laws and Practices and Acts of Violence
against Individuals based on their Sexual Orientation and Gender Identity”, 17 November 2011 (hereafter “OHCHR, Report on Sexual Orientation and Gender
Identity”), available at: http://www.unhcr.org/refworld/docid/4ef092022.html. For an overview of jurisprudence and doctrine, see also International Commission of
Jurists (hereafter “ICJ”), Sexual Orientation and Gender Identity in Human Rights Law, References to Jurisprudence and Doctrine of the United Nations Human Rights
System, 2010, fourth updated edition, available at: http://www.unhcr.org/refworld/docid/4c627bd82.html; ICJ, Sexual Orientation and Gender Identity in Human Rights
Law, Jurisprudential, Legislative and Doctrinal References from the Council of Europe and the European Union, October 2007, available at:
http://www.unhcr.org/refworld/docid/4a54bbb5d.html; ICJ, Sexual Orientation and Gender Identity in Human Rights Law: References to Jurisprudence and Doctrine of
the Inter-American System, July 2007, available at: http://www.unhcr.org/refworld/docid/4ad5b83a2.html.
5

See, International Lesbian, Gay, Bisexual, Trans and Intersex Association, “State-sponsored Homophobia, A World Survey of Laws Prohibiting Same-Sex Activity
between Consenting Adults”, May 2012, available at: http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2012.pdf.

6
These Guidelines supplement the UNHCR “Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951
Convention and/or its 1967 Protocol Relating to the Status of Refugees”, 7 May 2002 (hereafter “UNHCR, Guidelines on Gender-Related Persecution”), available at:
http://www.unhcr.org/refworld/docid/3d36f1c64.html
7

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948.

8

OHCHR, Report on Sexual Orientation and Gender Identity, para. 5.

9

However, some regional instruments expressly prohibit discrimination on grounds of sexual orientation. See, for example, Charter of Fundamental Rights of the
European Union, Article 21, 18 December 2000, and Resolution of the Organization of American States, Human Rights, Sexual Orientation, and Gender Identity,

2

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10

prohibited by international human rights law. For example, the proscribed grounds of “sex” and “other
status” contained in the non-discrimination clauses of the main international human rights instruments
11
have been accepted as encompassing sexual orientation and gender identity. As respect for fundamental
rights as well as the principle of non-discrimination are core aspects of the 1951 Convention and
12
international refugee law, the refugee definition must be interpreted and applied with due regard to them,
including the prohibition on non-discrimination on the basis of sexual orientation and gender identity.
7.

The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity were adopted in 2007 by a group of human rights experts and, although
13
not binding, reflect well-established principles of international law. They set out the human rights
protection framework applicable in the context of sexual orientation and/or gender identity. Principle 23
outlines the right to seek and enjoy asylum from persecution related to sexual orientation and/or gender
identity:
Everyone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to
sexual orientation or gender identity. A State may not remove, expel or extradite a person to any State where that
person may face a well-founded fear of torture, persecution, or any other form of cruel, inhuman or degrading
treatment or punishment, on the basis of sexual orientation or gender identity.

III. TERMINOLOGY
8.

9.

These Guidelines are intended to be inclusive of and relevant to the range of claims relating to sexual
orientation and/or gender identity. The concepts of sexual orientation and gender identity are outlined in
the Yogyakarta Principles and this terminology is also used for the purposes of these Guidelines. Sexual
orientation refers to: “each person’s capacity for profound emotional, affectional and sexual attraction to,
and intimate relations with, individuals of a different gender or the same gender or more than one
14
gender”. Gender identity refers to: “each person’s deeply felt internal and individual experience of
gender, which may or may not correspond with the sex assigned at birth, including the personal sense of
15
the body and other expressions of gender, including dress, speech and mannerisms”.
7
, 201
Sexual orientation and gender identity are broad concepts which createarspace for self-identification.
ch 2
nM
Research over several decades has demonstrated that sexual orientation can range along a continuum,
ed o
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16
including exclusive and non-exclusive attraction to the same86 a opposite sex. Gender identity and its
726 or the
13.
expression also take many forms, with some individuals identifying neither as male nor female, or as both.
s, No
ssion
Whether one’s sexual orientation is determined by, inter alia, genetic, hormonal, developmental, social,
v. Se
and/or cultural influences (or a driguez
o combination thereof), most people experience little or no sense of choice
17
as-R
about their sexual orientation. While for most people sexual orientation or gender identity are determined
Bring
at an early age, ed in
cit for others they may continue to evolve across a person's lifetime. Different people realize
at different points in their lives that they are LGBTI and their sexual and gender expressions may vary with
18
age, and other social and cultural determinants.

10. Refugee claims based on sexual orientation and/or gender identity often emanate from members of
19
specific sub-groups, that is, lesbian, gay, bisexual, transgender, intersex and queer individuals (usually
20
abbreviated as “LGBT”, “LGBTI” or “LGBTIQ” ). The experiences of members of these various groups will
often be distinct from one another; and, as noted above at paragraph 4, between members. It is, therefore,

AG/RES. 2721 (XLII-O/12), 4 June 2012.
10

“[D]iscrimination’ as used in the Covenant [on Civil and Political Rights] should be understood to imply any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”, UN Human Rights
Committee, CCPR General Comment No. 18: Non-Discrimination, 10 November 1989, available at: http://www.unhcr.org/refworld/docid/453883fa8.html, para. 7.
11

The UN Human Rights Committee held in 1994 in the landmark decision Toonen v. Australia that the International Covenant on Civil and Political Rights (adopted by
the UN General Assembly on 16 December 1966, hereafter “ICCPR”) prohibits discrimination on the grounds of sexual orientation, see CCPR/C/50/D/488/1992, 4
April 1994, (hereafter “Toonen v. Australia”) available at: http://www.unhcr.org/refworld/docid/48298b8d2.html. This has subsequently been affirmed by several other
UN human rights treaty bodies, including also recognition that gender identity is among the prohibited grounds of discrimination. See further, OHCHR, Report on
Sexual Orientation and Gender Identity, para. 7.
12

1951 Convention, Preambular para. 1, Article 3.

13

ICJ, Yogyakarta Principles - Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, (hereafter
“Yogyakarta Principles”), March 2007, available at: http://www.unhcr.org/refworld/docid/48244e602.html.
14

Yogyakarta Principles, Preamble.

15

Ibid.

16

American Psychological Association, “Sexual Orientation and Homosexuality” (hereafter “APA, Sexual Orientation and Homosexuality”), available at:
http://www.apa.org/helpcenter/sexual-orientation.aspx.

17

There is no consensus among scientists about the exact reasons that an individual develops a particular sexual orientation. See, APA, Sexual Orientation and
Homosexuality.

18

Application No. 76175, New Zealand Appeals Authority, 30 April 2008, available at: http://www.unhcr.org/refworld/docid/482422f62.html, para. 92.

19

Queer is traditionally a pejorative term, however, it has been appropriated by some LGBT people to describe themselves.

20

UNHCR has opted to refer to “LGBTI” individuals, which is intended to be inclusive of a wide range of individuals who fear persecution for reasons of their sexual
orientation and/or gender identity. See further, UNHCR, Working with Lesbian, Gay, Bisexual, Transgender & Intersex Persons in Forced Displacement,
2011, available at: http://www.unhcr.org/refworld/docid/4e6073972.html. For further information on terminology, see, for example, Gay & Lesbian Alliance Against
Defamation, “Media Reference Guide: A Resource for Journalists”, updated May 2010, available at: http://www.glaad.org/reference.

3

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essential that decision makers understand both the context of each refugee claim, as well as individual
21
narratives that do not easily map onto common experiences or labels.
Lesbian
A lesbian is a woman whose enduring physical, romantic and/or emotional attraction is to other women. Lesbians
often suffer multiple discrimination due to their gender, their often inferior social and/or economic status, coupled with
their sexual orientation. Lesbians are commonly subjected to harm by non-State actors, including acts such as
“corrective” rape, retaliatory violence by former partners or husbands, forced marriage, and crimes committed in the
name of “honour” by family members. Some lesbian refugee applicants have not had any experiences of past
persecution; for example, if they have had few or no lesbian relationships. Lesbians may have had heterosexual
relationships, often, but not necessarily, because of social pressures to marry and bear children. They may only later
in life enter into a lesbian relationship or identify as lesbian. As in all refugee claims, it is important to ensure that the
assessment of her fear of persecution is future-looking and that decisions are not based on stereotypical notions of
lesbians.
Gay men
Gay is often used to describe a man whose enduring physical, romantic and/or emotional attraction is to other men,
although gay can also be used to describe both gay men and women (lesbians). Gay men numerically dominate
sexual orientation and gender identity refugee claims, yet their claims should not be taken as a “template” for other
cases on sexual orientation and/or gender identity. Gay men are often more visible than other LGBTI groups in public
life in many societies and can become the focus of negative political campaigns. It is important, however, to avoid
assumptions that all gay men are public about their sexuality or that all gay men are effeminate. Having defied
masculine privilege by adopting roles and characteristics viewed as “feminine”, gay men may be viewed as “traitors”,
whether they are effeminate or not. They could be at particular risk of abuse in prisons, the military 22 and other
traditionally male dominated environments and job sites. Some gay men may also have had heterosexual
relationships because of societal pressures, including to marry and/or have children.
Bisexual
Bisexual describes an individual who is physically, romantically and/or emotionally attracted to both men and women.
The term bisexuality tends to be interpreted and applied inconsistently, often with a too narrow understanding.
7
Bisexuality does not have to involve attraction to both sexes at the same time, nor h 2, 201 have to involve equal
does it
Marc
attraction to or number of relationships with both sexes. Bisexuality is a nunique identity, which requires an
o
ived
examination in its own right. In some countries persecution may be directed expressly at gay or lesbian conduct, but
arch
nevertheless encompass acts of individuals who identify as 3-72686 Bisexuals often describe their sexual orientation
bisexual.
o 1
as “fluid” or “flexible” (see further below at paragraph, 47)..
ns N

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. Ses
ez v
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Transgender describes people whose gender identity and/or gender expression differs from the biological sex they
d in 23
cite
Transgender

were assigned at birth. Transgender is a gender identity, not a sexual orientation and a transgender individual may
be heterosexual, gay, lesbian or bisexual.24 Transgender individuals dress or act in ways that are often different from
what is generally expected by society on the basis of their sex assigned at birth. Also, they may not appear or act in
these ways at all times. For example, individuals may choose to express their chosen gender only at certain times in
environments where they feel safe. Not fitting within accepted binary perceptions of being male and female, they may
be perceived as threatening social norms and values. This non-conformity exposes them to risk of harm.
Transgender individuals are often highly marginalized and their claims may reveal experiences of severe physical,
psychological and/or sexual violence. When their self-identification and physical appearance do not match the legal
sex on official documentation and identity documents, transgender people are at particular risk.25 The transition to
alter one's birth sex is not a one-step process and may involve a range of personal, legal and medical adjustments.
Not all transgender individuals choose medical treatment or other steps to help their outward appearance match their
internal identity. It is therefore important for decision makers to avoid overemphasis on sex-reassignment surgery.

21

Considerations relating to each group are also integrated elsewhere in these Guidelines.

22

See, for example, RRT Case No. 060931294, [2006] RRTA 229, Australia, RRTA, 21 December 2006, available at:
http://www.unhcr.org/refworld/docid/47a707ebd.html; MS (Risk - Homosexuality - Military Service) Macedonia v. SSHD, CG [2002] UKIAT 03308, UK Immigration and
Asylum Tribunal, 30 July 2002, available at: http://www.unhcr.org/refworld/docid/46836aba0.html, which found that the “atrocious prison conditions” in the particular
country would breach the appellant’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 3.
Lesbians may also be at risk in these environments. See, Smith v. Minister of Citizenship and Immigration, 2009 FC 1194, Canada, Federal Court, 20 November 2009,
available at: http://www.unhcr.org/refworld/docid/4b3c7b8c2.html.
23

The term may include, but is not limited to, transsexuals (an older term which originated in the medical and psychological communities), cross-dressers and other
gender-variant people. See further, APA, “Answers to Your Questions about Transgender People, Gender Identity and Gender Expression”, available at:
http://www.apa.org/topics/sexuality/transgender.aspx.
24

See also, RRT Case No. 0903346, [2010] RRTA 41, Australia, Refugee Review Tribunal, 5 February 2010, (hereafter “RRT Case No. 0903346”) available at:
http://www.unhcr.org/refworld/docid/4b8e783f2.html, which concerned a transgender applicant who feared persecution because of her gender identity.

25

The European Court of Human Rights has established that authorities must legally recognize the altered gender. See, Goodwin v. United Kingdom, Application no.
28957/95, European Court of Human Rights, 11 July 2002, available at: http://www.unhcr.org/refworld/docid/4dad9f762.html, finding a violation of the applicant’s right
to privacy, noting that “the stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status
imposed by law which refuses to recognize the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality.”, para. 77,
and that “Under Article 8 of the Convention in particular, the notion of personal autonomy is an important principle underlyi ng the interpretation of its guarantees,
protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings”, para. 90. See also
Council of Europe Recommendation CM/Rec (2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual
orientation or gender identity, recognizing that “Member states should take appropriate measures to guarantee the full legal recognition of a person’s gender
reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way.”, at
21.

4

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Intersex
The term intersex or "disorders of sex development" (DSD)26 refers to a condition in which an individual is born with
reproductive or sexual anatomy and/or chromosome patterns that do not seem to fit typical biological notions of being
male or female. These conditions may be apparent at birth, may appear at puberty, or may be discovered only during
a medical examination. Individuals with these conditions were previously referred to as “hermaphrodites”, however
this term is considered outdated and should not be used unless the applicant uses it.27 An intersex person may
identify as male or female, while their sexual orientation may be lesbian, gay, bisexual, or heterosexual.28 Intersex
persons may be subjected to persecution in ways that relate to their atypical anatomy. They may face discrimination
and abuse for having a physical disability or medical condition, or for non-conformity with expected bodily
appearances of females and males. Some intersex children are not registered at birth by the authorities, which can
result in a range of associated risks and denial of their human rights. In some countries, being intersex can be seen
as something evil or part of witchcraft and can result in a whole family being targeted for abuse.29 Similar to
transgender individuals, they may risk being harmed during the transition to their chosen gender because, for
example, their identification papers do not indicate their chosen gender. People who self-identify as intersex may be
viewed by others as transgender, as there may simply be no understanding of the intersex condition in a given
culture.

11. Not all applicants will self-identify with the LGBTI terminology and constructs as presented above or may
be unaware of these labels. Some may only be able to draw upon (derogatory) terms used by the
persecutor. Decision makers therefore need to be cautious about inflexibly applying such labels as this
could lead to adverse credibility assessments or failure to recognize a valid claim. For example, bisexuals
are often categorized in the adjudication of refugee claims as either gay, lesbian or heterosexual, intersex
individuals may not identify as LGBTI at all (they may not see their condition as part of their identity, for
example) and men who have sex with men do not always identify as gay. It is also important to be clear
about the distinction between sexual orientation and gender identity. They are separate concepts and, as
explained above at paragraph8, they present different aspects of the identity of each person.

IV. SUBSTANTIVE ANALYSIS
A. Background
17
2, 20
12. A proper analysis as to whether a LGBTI applicant is a refugee under the MarchConvention needs to start
n 1951
o
30
from the premise that applicants are entitled to live in society as who ed are and need not hide that. As
iv they
arch
affirmed by the position adopted in a number of jurisdictions, 6
7268 sexual orientation and/or gender identity are
. 13fundamental aspects of human identity that areneither innate or immutable, or that a person should not be
s, No
31
essio
required to give up or conceal. Whilevone’s sexual orientation and/or gender identity may be revealed by
.S
ez
sexual conduct or a sexual act, drigu external appearance or dress, it may also be evidenced by a range of
-Ro or by
gas
other factors, includinginhow the applicant lives in society, or how he or she expresses (or wishes to
in Br
32
c her
express) his or ited identity.

13. An applicant’s sexual orientation and/or gender identity can be relevant to a refugee claim where he or she
fears persecutory harm on account of his or her actual or perceived sexual orientation and/or gender
identity, which does not, or is seen not to, conform to prevailing political, cultural or social norms. The
intersection of gender, sexual orientation and gender identity is an integral part in the assessment of claims
raising questions of sexual orientation and/or gender identity. Harm as a result of not conforming to
expected gender roles is often a central element in these claims. UNHCR’s Guidelines on Gender-Related
Persecution recognize that:

26
Note that some individuals (and/or their medical records) will just use the name of their particular condition, such as congenital adrenal hyperplasia or androgen
insensitivity syndrome, rather than using the term intersex or DSD.
27

US Citizenship and Immigration Services, “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims”, 27
December 2011 (hereafter “USCIS, Guidance for Adjudicating LGBTI Claims”), available at: http://www.unhcr.org/refworld/docid/4f269cd72.html, p. 13.

28

See further, Advocates for Informed Choice website: http://aiclegal.org/faq/#whatisintersex.

29

Jill Schnoebelen, Witchcraft Allegations, Refugee Protection and Human Rights: A Review of the Evidence, UNHCR, New Issues in Refugee Research, Research
Paper No. 169, January 2009, available at: http://www.unhcr.org/4981ca712.pdf.

30

UNHCR, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department – Case for the First Intervener (United Nations High Commissioner for
Refugees), 19 April 2010, (hereafter “UNHCR, HJ and HT”), available at: http://www.unhcr.org/refworld/docid/4bd1abbc2.html, para. 1. For a comparison with other
Convention grounds, see para. 29 of the submission. See also, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, UK, [2010] UKSC 31,
Supreme Court, 7 July 2010 (hereafter “HJ and HT”), available at: http://www.unhcr.org/refworld/docid/4c3456752.html.
31

See, for example, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada, Supreme Court, 30 June 1993 (hereafter “Canada v. Ward”), available at:
http://www.unhcr.org/refworld/docid/3ae6b673c.html; Geovanni Hernandez-Montiel v. Immigration and Naturalization Service, US, 225 F.3d 1084, A72-994-275, (9th
Cir. 2000), 24 August 2000, available at: http://www.unhcr.org/refworld/docid/3ba9c1119.html, later affirmed by Morales v. Gonzales, US, 478 F.3d 972, No. 05-70672,
(9th Cir. 2007), 3 January 2007, available at: http://www.unhcr.org/refworld/docid/4829b1452.html; Appellants S395/2002 and S396/2002 v. Minister for Immigration
and Multicultural Affairs, [2003] HCA 71, Australia, High Court, 9 December 2003 (hereafter “S395/2002”), available at:
http://www.unhcr.org/refworld/docid/3fd9eca84.html; Refugee Appeal No. 74665, New Zealand, Refugee Status Appeals Authority, 7 July 2004 (hereafter “Refugee
Appeal No. 74665”), available at: http://www.unhcr.org/refworld/docid/42234ca54.html; HJ and HT, above footnote 30, paras. 11, 14, 78.
32

Yogyakarta Principles, Principle 3, affirms that each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most
basic aspects of self-determination, dignity and freedom. See further, S395/2002, para. 81; Matter of Toboso-Alfonso, US Board of Immigration Appeals, 12 March
1990, (hereafter “Matter of Toboso-Alfonso”), available at: http://www.unhcr.org/refworld/docid/3ae6b6b84.html; Nasser Mustapha Karouni v. Alberto Gonzales,
Attorney General, US, No. 02-72651, (9th Cir. 2005), 7 March 2005 (hereafter “Karouni”) available at: http://www.unhcr.org/refworld/docid/4721b5c32.html, at III[6];
Lawrence, et al. v. Texas, US Supreme Court, 26 June 2003, available at: http://www.unhcr.org/refworld/docid/3f21381d4.html, which found that “When sexuality finds
overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”, p. 6.

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Refugee claims based on differing sexual orientation contain a gender element. A claimant’s sexuality or sexual
practices may be relevant to a refugee claim where he or she has been subject to persecutory action on account of
his or her sexuality or sexual practices. In many such cases, the claimant has refused to adhere to socially or
culturally defined roles or expectations of behaviour attributed to his or her sex. 33
34

14. The impact of gender is relevant to refugee claims made by both LGBTI men and women. Decision
makers need to be attentive to differences in their experiences based on sex/gender. For example,
heterosexual or male gay norms or country information may not apply to the experiences of lesbians
whose position may, in a given context, be similar to that of other women in her society. Full account needs
to be taken of diverse and evolving identities and their expression, the actual circumstances of the
35
individual, and the cultural, legal, political and social context.
15. Societal disapproval of varied sexual identities or their expression is usually more than the simple
disapproval of sexual practices. It is often underlined by a reaction to non-compliance with expected
cultural, gender and/or social norms and values. The societal norms of who men and women are and how
they are supposed to behave are commonly based on hetero-normative standards. Both men and women
may be subject to violent acts to make them conform to society’s gender roles and/or to intimidate others
by setting “an example”. Such harm can be “sexualized” as a means of further degrading, objectifying or
36
punishing the victim for his/her sexual orientation and/or gender identity, but can also take other forms.

B. Well-founded fear of being persecuted
16. The term “persecution”, though not expressly defined in the 1951 Convention, can be considered to involve
serious human rights violations, including a threat to life or freedom as well as other kinds of serious harm.
In addition, lesser forms of harm may cumulatively constitute persecution. What amounts to persecution
will depend on the circumstances of the case, including the age, gender, opinions, feelings and
37
psychological make-up of the applicant.
17. Discrimination is a common element in the experiences of many LGBTI individuals. As in other refugee
claims, discrimination will amount to persecution where measures of discrimination, individually or
7
38
,2 1
cumulatively, lead to consequences of a substantially prejudicial nature forh the 0person concerned.
rc 2
n Ma level of persecution is to be
o
Assessing whether the cumulative effect of such discrimination risesdto the
ive
39
made by reference to reliable, relevant and up-to-date country ofrch
6 a origin information.
7268
13.
, No
18. Not all LGBTI applicants may have experiencedspersecution in the past (see further below at paragraphs
ssion
v. Se paragraph 57 on sur place claims). Past persecution is not a
ez
30-33 on concealment as persecution and at
drigu
prerequisite to refugeeringas-Ro in fact, the well-foundedness of the fear of persecution is to be based on
status and
the assessmenteofin B predicament that the applicant would have to face if returned to the country of
cit d the
40
origin. The applicant does not need to show that the authorities knew about his or her sexual orientation
41
and/or gender identity before he or she left the country of origin.
19. Behaviour and activities may relate to a person’s orientation or identity in complex ways. It may be
expressed or revealed in many subtle or obvious ways, through appearance, speech, behaviour, dress and
mannerisms; or not revealed at all in these ways. While a certain activity expressing or revealing a
person’s sexual orientation and/or gender identity may sometimes be considered trivial, what is at issue is
the consequences that would follow such behaviour. In other words, an activity associated with sexual
orientation may merely reveal or expose the stigmatized identity, it does not cause or form the basis of the
persecution. In UNHCR’s view, the distinction between forms of expression that relate to a “core area” of
sexual orientation and those that do not, is therefore irrelevant for the purposes of the assessment of the
42
existence of a well-founded fear of persecution.

33

UNHCR, Guidelines on Gender-Related Persecution, para. 16.

34

UNHCR, Guidelines on Gender-Related Persecution, para. 3.

35

UNHCR, Summary Conclusions of Roundtable, para. 5.

36

UNHCR, Summary Conclusions of Roundtable, paras. 6, 16.

37

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees, HCR/1P/4/ENG/REV. 3 (hereafter “UNHCR, Handbook”), paras. 51–53.

38

Ibid, paras. 54–55.

39

Molnar v. Canada (Minister of Citizenship and Immigration), 2005 FC 98, Canada, Federal Court, 21 January 2005 (hereafter “Molnar v. Canada”) available at:
http://www.unhcr.org/refworld/docid/4fe81df72.html.

40
See, for example, Bromfield v. Mukasey, US, 543 F.3d 1071, 1076-77 (9th Cir. 2008), 15 September 2008, available at:
http://www.unhcr.org/refworld/docid/498b08a12.html, RRT Case No. 1102877, [2012] RRTA 101, Australia, Refugee Review Tribunal, 23 February 2012, available at:
http://www.unhcr.org/refworld/docid/4f8410a52.html, para. 91.
41

UNHCR, Handbook, para. 83.

42

Bundesrepublik Deutschland v. Y (C-71/11), Z (C-99/11), C-71/11 and C-99/11, CJEU, 5 September 2012, available at:
http://www.unhcr.org/refworld/docid/505ace862.html, para. 62; RT (Zimbabwe) and others v Secretary of State for the Home Department, [2012] UKSC 38, UK
Supreme Court, 25 July 2012, available at: http://www.unhcr.org/refworld/docid/500fdacb2.html, paras. 75–76 (Lord Kerr); UNHCR Statement on Religious
Persecution and the Interpretation of Article 9(1) of the EU Qualification Directive and UNHCR, Secretary of State for the Home Department (Appellant) v. RT
(Zimbabwe), SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) - Case for the Intervener, 25
May 2012, Case No. 2011/0011, available at: http://www.unhcr.org/refworld/docid/4fc369022.html, para. 12(9).

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Persecution
20. Threats of serious abuse and violence are common in LGBTI claims. Physical, psychological and sexual
43
violence, including rape, would generally meet the threshold level required to establish persecution. Rape
44
in particular has been recognized as a form of torture, leaving “deep psychological scars on the victim”.
Rape has been identified as being used for such purposes as “intimidation, degradation, humiliation,
discrimination, punishment, control or destruction of the person. Like torture, rape is a violation of personal
45
dignity.”
21. Many societies, for example, continue to view homosexuality, bisexuality, and/or transgender behaviour or
persons, as variously reflecting a disease, a mental illness or moral failing, and they may thus deploy
various measures to try to change or alter someone’s sexual orientation and/or gender identity. Efforts to
change an individual’s sexual orientation or gender identity by force or coercion may constitute torture, or
inhuman or degrading treatment, and implicate other serious human rights violations, including the rights to
liberty and security of person. Examples at the extreme end and which on their face reach the threshold of
persecution include forced institutionalization, forced sex-reassignment surgery, forced electroshock
46
therapy and forced drug injection or hormonal therapy. Non-consensual medical and scientific
experimentation is also explicitly identified as a form of torture or inhuman or degrading treatment under
47
the International Covenant on Civil and Political Rights. Some intersex individuals may be forced to
undergo surgery aimed at “normalcy” and, where it will be applied without their consent, this is likely to
amount to persecution. It is also important to distinguish in these cases between surgery necessary to
preserve life or health and surgery for cosmetic purposes or social conformity. The assessment needs to
focus on whether the surgery or treatment was voluntary and took place with the informed consent of the
48
individual.
22. Detention, including in psychological or medical institutions, on the sole basis of sexual orientation and/or
gender identity is considered in breach of the international prohibition against the arbitrary deprivation of
49
liberty and would normally constitute persecution. Moreover, as noted by the United Nations Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, there is usually
17
2, 20
a strict hierarchy in detention facilities and those at the bottom of this hierarchy, such as LGBTI detainees,
arch
n Mparticular risk of physical and
suffer multiple discrimination. Male-to-female transgender prisoners ed o at
hiv are
6 arc50
sexual abuse if placed within the general male prison population. Administrative segregation, or solitary
7268
51
confinement, solely because a person is LGBTI can o. 13 result in severe psychological harm.
also
ns, N
essio
S
z v.
23. Social norms and values, includinguso-called family “honour”, are usually closely intertwined in the refugee
rig e
-Rod
as
claims of LGBTI individuals. While “mere” disapproval from family or community will not amount to
Bring
persecution, itcmayin an important factor in the overall context of the claim. Where family or community
ited be
disapproval, for example, manifests itself in threats of serious physical violence or even murder by family
members or the wider community, committed in the name of “honour”, it would clearly be classed as

43

International criminal tribunals in their jurisprudence have broadened the scope of crimes of sexual violence that can be prosecuted as rape to include oral sex and
vaginal or anal penetration through the use of objects or any part of the perpetrator’s body. See, for instance, Prosecutor v. Anto Furundzija (Trial Judgment), IT-9517/1-T, International Criminal Tribunal for the Former Yugoslavia (ICTY), 10 December 1998, available at: http://www.unhcr.org/refworld/docid/40276a8a4.html, para.
185; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 & IT-96-23/1-A, ICTY, 12 June 2002, available at:
http://www.unhcr.org/refworld/docid/3debaafe4.html, para. 128. See also, International Criminal Court, Elements of Crimes, 2011, available at:
http://www.unhcr.org/refworld/docid/4ff5dd7d2.html, Articles 7 (1) (g)-1 and 8(2)(b)(xxii)-1. For refugee-related jurisprudence, see Ayala v. US Attorney General, US,
No. 09-12113, (11th Cir. 2010), 7 May 2010 (hereafter “Ayala v. US Attorney General”), available at: http://www.unhcr.org/refworld/docid/4c6c04942.html, which found
that oral rape constituted persecution.
44
Aydin v. Turkey, 57/1996/676/866, Council of Europe, European Court of Human Rights, 25 September 1997, available at:
http://www.unhcr.org/refworld/docid/3ae6b7228.html, para. 83. See also, HS (Homosexuals: Minors, Risk on Return) Iran v. Secretary of State for the Home
Department [2005] UKAIT 00120, UK Asylum and Immigration Tribunal (AIT), 4 August 2005, available at http://www.unhcr.org/refworld/docid/47fdfafe0.html,
recognizing as torture the sexual assault the applicant had been subjected to while in detention, paras. 57, 134; Arrêt n° 36 527, Belgium: Conseil du Contentieux des
Etrangers, 22 December 2009, available at: http://www.unhcr.org/refworld/docid/4dad94692.html, referring to torture and serious violations of the appellant’s physical
integrity while in prison as constituting persecution.
45

The Prosecutor v. Jean-Paul Akayesu (Appeal Judgment), ICTR-96-4-A, International Criminal Tribunal for Rwanda, 1 June 2001, available at:
http://www.unhcr.org/refworld/docid/4084f42f4.html, para. 687.

46

Yogyakarta Principles, Principle 18: “Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of
themselves, medical conditions and are not to be treated, cured or suppressed”. See also, Alla Konstantinova Pitcherskaia v. Immigration and Naturalization
Service, US, 95-70887, (9th Cir. 1997), 24 June 1997 (hereafter “Pitcherskaia v. INS”), available at: http://www.unhcr.org/refworld/docid/4152e0fb26.html.

47

ICCPR, Article 7, “… In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. As affirmed, for example, by the UN
Committee Against Torture and the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, this includes subjecting men
suspected of homosexual conduct to non-consensual anal examinations to prove their homosexuality. See further, OHCHR, Report on Sexual Orientation and Gender
Identity, para. 37.
48

See, UN Committee on the Elimination of Discrimination against Women (CEDAW), Communication No. 4/2004, 29 August 2006, CEDAW/C/36/D/4/2004, available
at: http://www.unhcr.org/refworld/docid/4fdb288e2.html, which considered non-consensual sterilization as a violation of women’s rights to informed consent and dignity,
para. 11.3. In respect of surgery at birth, the best interests of the child is a primary consideration, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her (Convention on the Rights of the Child (CRC), Article 3). If sex re-assignment or reconstructive surgery
is contemplated only later in childhood, “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely
in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (CRC, Article 12(1)).
49

See, UN Working Group on Arbitrary Detention, Opinions No. 22/2006 on Cameroon and No. 42/2008 on Egypt; A/HRC/16/47, annex, para. 8(e). See also, UNHCR,
“Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention”, 2012, (hereafter “UNHCR, Guidelines
on Detention”), available at: http://www.unhcr.org/refworld/docid/503489533b8.html.

50

OHCHR, Report on Sexual Orientation and Gender Identity, para. 34.

51

As noted in the UNHCR Guidelines on Detention, “solitary confinement is not an appropriate way to manage or ensure the protection of such individuals”, para. 65.

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52

persecution. Other forms of persecution include forced or underage marriage, forced pregnancy and/or
marital rape (on rape, see above at paragraph 20). In the context of sexual orientation and/or gender
identity cases, such forms of persecution are often used as a means of denial or “correcting” nonconformity. Lesbians, bisexual women and transgender persons are at particular risk of such harms owing
to pervasive gender inequalities that restrict autonomy in decision-making about sexuality, reproduction
53
and family life.
24. LGBTI individuals may also be unable to enjoy fully their human rights in matters of private and family
54
law, including inheritance, custody, visitation rights for children and pension rights. Their rights to
55
freedom of expression, association and assembly may be restricted. They may also be denied a range
56
57
of economic and social rights, including in relation to housing, education, and health care. Young
LGBTI individuals may be prevented from going to school, subjected to harassment and bullying and/or
expelled. Community ostracism can have a damaging impact on the mental health of those targeted,
especially if such ostracism has lasted for an extended period of time and where it occurs with impunity or
disregard. The cumulative effect of such restrictions on the exercise of human rights may constitute
persecution in a given case.
58

25. LGBTI individuals may also experience discrimination in access to and maintenance of employment.
Their sexual orientation and/or gender identity may be exposed in the workplace with resulting
harassment, demotion or dismissal. For transgender individuals in particular, deprivation of employment,
often combined with lack of housing and family support, may frequently force them into sex work,
subjecting them to a variety of physical dangers and health risks. While being dismissed from a job
generally is not considered persecution, even if discriminatory or unfair, if an individual can demonstrate
that his or her LGBTI identity would make it highly improbable to enjoy any kind of gainful employment in
59
the country of origin, this may constitute persecution.
Laws criminalizing same-sex relations

26. Many lesbian, gay or bisexual applicants come from countries of origin in which consensual same-sex
relations are criminalized. It is well established that such criminal laws are discriminatory and violate
60
2017
international human rights norms. Where persons are at risk of persecution h 2, punishment such as by
rc or
n Ma flogging, their persecutory
the death penalty, prison terms, or severe corporal punishment, ed o
including
hiv
61
6 arc
character is particularly evident.
7268
o. 13
ns, N
27. Even if irregularly, rarely or ever enforced,scriminal laws prohibiting same-sex relations could lead to an
e sio
v. S
intolerable predicament for an drigueperson rising to the level of persecution. Depending on the country
LGB z
o
-Rsame-sex relations can create or contribute to an oppressive atmosphere of
a of
context, the criminalization s
Bring
intolerance andited in
c generate a threat of prosecution for having such relations. The existence of such laws can
be used for blackmail and extortion purposes by the authorities or non-State actors. They can promote
political rhetoric that can expose LGB individuals to risks of persecutory harm. They can also hinder LGB
persons from seeking and obtaining State protection.
28. Assessing the “well-founded fear of being persecuted” in such cases needs to be fact-based, focusing on
both the individual and the contextual circumstances of the case. The legal system in the country
52

UN Human Rights Committee and the Inter-American Commission on Human Rights have concluded that the inaction of State vis-à-vis death threats constitutes a
violation of the right to life. See also, RRT Case No. 0902671, [2009] RRTA 1053, Australia, Refugee Review Tribunal, 19 November 2009, available at:
http://www.unhcr.org/refworld/docid/4b57016f2.html, which found that the “applicant’s chance of facing serious harm, possibly death by honour killing, if he returned to
[the country of origin] now or in the reasonably foreseeable future is real and amounts to serious harm…in that it is deliberate or intentional and involves persecution
for a Convention reason”. See also, Muckette v. Minister of Citizenship and Immigration, 2008 FC 1388, Canada, Federal Court, 17 December 2008, available at:
http://www.unhcr.org/refworld/docid/4989a27e2.html. The case was remanded for reconsideration as the lower instance had “failed to address whether the death
threats had a degree of reality to them and in effect dismissed them because no one had attempted to kill the Applicant.”
53

OHCHR, Report on Sexual Orientation and Gender Identity, para. 66.

54

Ibid, paras. 68–70.

55

Ibid, paras. 62–65.

56

Ibid, paras. 58–61.

57

Ibid, paras. 54–57.

58

Ibid, paras. 51–53.

59

USCIS, Guidance for Adjudicating LGBTI Claims, p. 23. See also, Kadri v. Mukasey, US, Nos. 06-2599 & 07-1754, (1st Cir. 2008), 30 September 2008, available at:
http://www.unhcr.org/refworld/docid/498b0a212.html. The case was remanded for consideration of the standard for economic persecution, referring to In re T-Z-, 24 I &
N. Dec. 163 (US Board of Immigration Appeals, 2007), which had found that “’[nonphysical] harm or suffering . . . such as the deliberate imposition of severe economic
disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life may rise to persecution”.
60

See, for example, Toonen v. Australia, above footnote 11, which found that the sodomy law of the territory concerned violated the rights to privacy and equality
before the law.

61
European Union, European Parliament, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification
of third-country nationals or stateless persons as beneficiaries 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), (hereafter “EU Qualification Directive”), Article 9; COC and Vrije Universiteit Amsterdam, Fleeing
Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, September 2011 (hereafter “Fleeing Homophobia Report”) available at:
http://www.unhcr.org/refworld/docid/4ebba7852.html, pp. 22–24. See also Arrêt n° 50 966, Belgium, Conseil du Contentieux des Etrangers, 9 November 2010,
available at: http://www.unhcr.org/refworld/docid/4dad967f2.html, concerning a lesbian, found that a prison term for homosexual conduct of 1–5 years and fines from
100 000 à 1 500 000 francs CFA and the fact that society was homophobic were sufficient grounds to constitute persecution in the circumstances of the case, para.
5.7.1. Similarly in Arrêt n° 50 967, Belgium, Conseil du Contentieux des Etrangers, 9 November 2010, available at:
http://www.unhcr.org/refworld/docid/4dad97d92.html, concerning a gay man.

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concerned, including any relevant legislation, its interpretation, application and actual impact on the
62
applicant needs to be examined. The “fear” element refers not only to persons to whom such laws have
already been applied, but also to individuals who wish to avoid the risk of the application of such laws to
them. Where the country of origin information does not establish whether or not, or the extent, that the laws
are actually enforced, a pervading and generalized climate of homophobia in the country of origin could be
evidence indicative that LGBTI persons are nevertheless being persecuted.
29. Even where consensual same-sex relations are not criminalized by specific provisions, laws of general
application, for example, public morality or public order laws (loitering, for example) may be selectively
applied and enforced against LGBTI individuals in a discriminatory manner, making life intolerable for the
63
claimant, and thus amounting to persecution.
Concealment of sexual orientation and/or gender identity
30. LGBTI individuals frequently keep aspects and sometimes large parts of their lives secret. Many will not
have lived openly as LGBTI in their country of origin and some may not have had any intimate
relationships. Many suppress their sexual orientation and/or gender identity to avoid the severe
consequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids,
discrimination, societal disapproval, or family exclusion.
31. That an applicant may be able to avoid persecution by concealing or by being “discreet” about his or her
sexual orientation or gender identity, or has done so previously, is not a valid reason to deny refugee
status. As affirmed by numerous decisions in multiple jurisdictions, a person cannot be denied refugee
status based on a requirement that they change or conceal their identity, opinions or characteristics in
64
order to avoid persecution. LGBTI people are as much entitled to freedom of expression and association
65
as others.
32. With this general principle in mind, the question thus to be considered is what predicament the applicant
would face if he or she were returned to the country of origin. This requires a fact-specific examination of
what may happen if the applicant returns to the country of nationality or habitual residence and whether
7
, 201
this amounts to persecution. The question is not, could the applicant, by beingcdiscreet, live in that country
r h2
n Ma applicants may so far have
o
without attracting adverse consequences. It is important to note that deven if
hive
6 arc
managed to avoid harm through concealment, their circumstances may change over time and secrecy may
7268
not be an option for the entirety of their lifetime. Theo. 13 of discovery may also not necessarily be confined
risk
ns, N
to their own conduct. There is almost . always the possibility of discovery against the person’s will, for
essio
v S
66
example, by accident, rumours driggrowing suspicion. It is also important to recognize that even if LGBTI
or uez
-Ro
as
individuals conceal their gsexual orientation or gender identity they may still be at risk of exposure and
Brin
related harm fored infollowing expected social norms (for example, getting married and having children, for
cit not
example). The absence of certain expected activities and behaviour identifies a difference between them
67
and other people and may place them at risk of harm.
33. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant
psychological and other harms. Discriminatory and disapproving attitudes, norms and values may have a
68
serious effect on the mental and physical health of LGBTI individuals and could in particular cases lead
69
to an intolerable predicament amounting to persecution. Feelings of self-denial, anguish, shame, isolation
and even self-hatred which may accrue in response an inability to be open about one’s sexuality or gender
identity are factors to consider, including over the long-term.
62

UNHCR, Handbook, para. 45.

63

RRT Case No. 1102877, [2012] RRTA 101, Australia, Refugee Review Tribunal, 23 February 2012, available at:
http://www.unhcr.org/refworld/docid/4f8410a52.html, paras. 89, 96; RRT Case No. 071862642, [2008] RRTA 40, Australia: Refugee Review Tribunal, 19 February
2008, available at: http://www.unhcr.org/refworld/docid/4811a7192.html.
64
For example, HJ and HT, above footnote 30; UNHCR, HJ and HT, above footnote 30, paras. 26–33; S395/2002, above footnote 31; Refugee Appeal No. 74665,
above footnote 31; Karouni, above footnote 32; KHO:2012:1, Finland, Supreme Administrative Court, 13 January 2012, available at:
http://www.unhcr.org/refworld/docid/4f3cdf7e2.html. See also, UNHCR, “Guidelines on International Protection No. 2: "Membership of a Particular Social Group" Within
the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees”, 7 May 2002, HCR/GIP/02/02 (hereafter “UNHCR,
Guidelines on Social Group”), available at: http://www.unhcr.org/refworld/docid/3d36f23f4.html, paras. 6, 12; UNHCR, “Guidelines on International Protection No. 6:
Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, 28 April
2004, HCR/GIP/04/06, (hereafter “UNHCR, Guidelines on Religion”), para. 13; UNHCR, Secretary of State for the Home Department (Appellant) v. RT (Zimbabwe),
SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) - Case for the Intervener, 25 May
2012, 2011/0011, available at: http://www.unhcr.org/refworld/docid/4fc369022.html, para. 9.
65

As noted by the UK Supreme Court in HJ and HT, above footnote 30: “The underlying rationale of the Convention is … that people should be able to live freely,
without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. In the
absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution. By allowing them to live openly
and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them”, para. 53.

66

S395/2002, above footnote 31, paras. 56–58.

67

SW (lesbians - HJ and HT applied) Jamaica v. Secretary of State for the Home Department, UK, CG [2011] UKUT 00251(IAC), Upper Tribunal (Immigration and
Asylum Chamber), 24 June 2011, available at: http://www.unhcr.org/refworld/docid/4e0c3fae2.html.
68

Discrimination of LGBTI individuals has been associated with mental health problems. Studies have shown that internalized negative attitudes towards nonheterosexuality in LGB individuals was related to difficulties with self-esteem, depression, psychosocial and psychological distress, physical health, intimacy, social
support, relationship quality, and career development. See further, APA, “Practice Guidelines for LGB Clients, Guidelines for Psychological Practice with Lesbian, Gay,
and Bisexual Clients” (hereafter “APA, Practice Guidelines for LGB Clients”), available at: http://www.apa.org/pi/lgbt/resources/guidelines.aspx?item=3.

69

Pathmakanthan v. Holder, US, 612 F.3d 618, 623 (7th Cir. 2010), available at: http://www.unhcr.org/refworld/docid/4d249efa2.html.

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Agents of Persecution
34. There is scope within the refugee definition to recognize persecution emanating from both State and
non-State actors. State persecution may be perpetrated, for example, through the criminalization of
consensual same-sex conduct and the enforcement of associated laws, or as a result of harm inflicted by
officials of the State or those under the control of the State, such as the police or the military. Individual acts of
“rogue” officers may still be considered as State persecution, especially where the officer is a member of the
70
police and other agencies that purport to protect people.
35. In situations where the threat of harm is from non-State actors, persecution is established where the State is
unable or unwilling to provide protection against such harm. Non-State actors, including family members,
neighbours, or the broader community, may be either directly or indirectly involved in persecutory acts,
including intimidation, harassment, domestic violence, or other forms of physical, psychological or sexual
violence. In some countries, armed or violent groups, such as paramilitary and rebel groups, as well as criminal
71
gangs and vigilantes, may target LGBTI individuals specifically.
36. In scenarios involving non-State agents of persecution, State protection from the claimed fear has to be
72
available and effective. State protection would normally neither be considered available nor effective, for
instance, where the police fail to respond to requests for protection or the authorities refuse to investigate,
73
prosecute or punish (non-State) perpetrators of violence against LGBTI individuals with due diligence.
Depending on the situation in the country of origin, laws criminalizing same-sex relations are normally a sign
that protection of LGB individuals is not available. Where the country of origin maintains such laws, it would be
unreasonable to expect that the applicant first seek State protection against harm based on what is, in the view
of the law, a criminal act. In such situations, it should be presumed, in the absence of evidence to the contrary,
74
that the country concerned is unable or unwilling to protect the applicant. As in other types of claims, a
claimant does not need to show that he or she approached the authorities for protection before flight. Rather he
or she has to establish that the protection was not or unlikely to be available or effective upon return.
37. Where the legal and socio-economic situation of LGBTI people is improving in the0country of origin, the
2 17
availability and effectiveness of State protection needs to be carefully assessedrch 2, on reliable and up-tobased
Ma
n merely transitional. Where laws
date country of origin information. The reforms need to be moreivthan
ed o
rch
criminalizing same-sex conduct have been repealed or 72686 a
other positive measures have been taken, such
o. future as to how society generally regards people with
reforms may not impact in the immediate or foreseeable 13
ns, N
75
differing sexual orientation and/or gender essio
identity. The existence of certain elements, such as antiv. S
discrimination laws or presencedrigLGBTI organizations and events, do not necessarily undermine the wellof uez
76
-Ro
s
foundedness of the applicant’s fear. Societal attitudes may not be in line with the law and prejudice may be
inga
77
in Br
entrenched, withed continued risk where the authorities fail to enforce protective laws. A de facto, not merely
cit a
de jure, change is required and an analysis of the circumstances of each particular case is essential.

70

See Ayala v. US Attorney General, above footnote 42. The treatment by a group of police officers (robbery and sexual assault) constituted persecution and was
deemed to be on account of the applicant’s sexual orientation.

71

P.S., a/k/a S.J.P., v. Holder, Attorney General, US, No. 09-3291, Agency No. A99-473-409, (3rd Cir. 2010), 22 June 2010, available at:
http://www.unhcr.org/refworld/docid/4fbf263f2.html, concerned a gay man who was targeted by a non-State armed group. See also, RRT Case No. N98/22948, [2000]
RRTA 1055, Australia, Refugee Review Tribunal, 2 November 2000, available at: http://www.unhcr.org/refworld/docid/4b7a97fd2.html, which found that the applicant
was at risk of persecution at the hands of vigilante groups. The identification of poor gay men as “disposables” put them at risk of “social clean up” operations.
72

UNHCR, Handbook, paras. 97–101; UN Human Rights Committee, General Comment no. 31 [80], The nature of the general legal obligation imposed on States
Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, available at: http://www.unhcr.org/refworld/docid/478b26ae2.html, paras. 8, 15–16; CEDAW,
General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against
Women, 19 October 2010, CEDAW/C/2010/47/GC.2, available at: http://www.unhcr.org/refworld/docid/4d467ea72.html, para. 36.
73

See, for example, UK Home Office, “Sexual Orientation Issues in the Asylum Claim”, 6 October 2011, available at:
http://www.unhcr.org/refworld/docid/4eb8f0982.html, p. 6.

74

UNHCR, Summary Conclusions of Roundtable, para. 8.

75

RRT Case No. 0905785, [2010] RRTA 150, Australia, Refugee Review Tribunal, 7 March 2010, available at: http://www.unhcr.org/refworld/docid/4c220be62.html,
found that the decriminalization of homosexual acts in the particular country was unlikely to have an immediate impact on how people viewed homosexuality, para. 88.
76

USCIS, Guidance for Adjudicating LGBTI Claims, p. 25. See also Guerrero v. Canada (Minister of Citizenship and Immigration), 2011 FC 860, Canada, Federal
Court, 8 July 2011, available at: http://www.unhcr.org/refworld/docid/4fa952572.html, which noted that the presence of many non-governmental organizations that fight
against discrimination based on sexual orientation is in itself a telling factor in considering the country conditions.
77
See, Judgment No. 616907, K, France, Cour nationale du droit d'asile, 6 April 2009, summary available at Contentieux des réfugiés: Jurisprudence du Conseil d'État
et de la Cour nationale du droit d'asile - Année 2009, 26 October 2010, available at: http://www.unhcr.org/refworld/docid/4dad9db02.html, pp. 61–62, which recognized
as a refugee a gay man from a particular territory based on the fact that even though a 2004 law banned all discrimination on the basis of sexual orientation those
showing their homosexuality in public were regularly subject to harassment and discrimination without being able to avail themselves of the protection of the
authorities.

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C. The causal link (“for reasons of”)
38. As with other types of refugee claims, the well-founded fear of persecution must be “for reasons of” one or
more of the five grounds contained in the refugee definition in Article 1A(2) of the 1951 Convention. The
Convention ground should be a contributing factor to the well-founded fear of persecution, though it need
not be the sole, or even dominant, cause.
39. Perpetrators may rationalize the violence they inflict on LGBTI individuals by reference to the intention of
78
“correcting”, “curing” or “treating” the person. The intent or motive of the persecutor can be a relevant
79
factor to establishing the “causal link” but it is not a prerequisite. There is no need for the persecutor to
80
have a punitive intent to establish the causal link. The focus is on the reasons for the applicant’s feared
predicament within the overall context of the case, and how he or she would experience the harm rather
than on the mind-set of the perpetrator. Nonetheless, where it can be shown that the persecutor attributes
81
or imputes a Convention ground to the applicant, this is sufficient to satisfy the causal link. Where the
persecutor is a non-State actor, the causal link may be established either where the non-State actor is
likely to harm the LGBTI person for a Convention reason or the State is not likely to protect him or her for a
82
Convention reason.

D. Convention grounds
40. The five Convention grounds, that is, race, religion, nationality, membership of a particular social group
and political opinion, are not mutually exclusive and may overlap. More than one Convention ground may
be relevant in a given case. Refugee claims based on sexual orientation and/or gender identity are most
commonly recognized under the “membership of a particular social group” ground. Other grounds may
though also be relevant depending on the political, religious and cultural context of the claim. For example,
LGBTI activists and human rights defenders (or perceived activists/defenders) may have either or both
claims based on political opinion or religion if, for example, their advocacy is seen as going against
prevailing political or religious views and/or practices.
41. Individuals may be subject to persecution due to their actual or perceived sexual 017
, 2 orientation or gender
rch 2
identity. The opinion, belief or membership may be attributed to the applicantaby the State or the non-State
nM
do
hive
agent of persecution, even if they are not in fact LGBTI, andrcbased on this perception they may be
6a
persecuted as a consequence. For example, women and-7268 who do not fit stereotyped appearances and
men
. 13
83
roles may be perceived as LGBTI. It is not required o
ns, N that they actually be LGBTI. Transgender individuals
essio
often experience harm based on imputed sexual orientation. Partners of transgender individuals may be
v. S
uez
perceived as gay or lesbian odrig
R or simply as not conforming to accepted gender roles and behaviour or
gas-transgender individuals.
associating themselvesin
in Br with
cited
Religion
42. Where an individual is viewed as not conforming to the teachings of a particular religion on account of his
or her sexual orientation or gender identity, and is subjected to serious harm or punishment as a
84
consequence, he or she may have a well-founded fear of persecution for reasons of religion. The
teachings of the world’s major religions on sexual orientation and/or gender identity differ and some have
also changed over time or in particular contexts, ranging from outright condemnation, including viewing
homosexuality as an “abomination”, “sin”, “disorder” or apostasy, to complete acceptance of diverse sexual
orientation and/or gender identity. Non-LGBTI persons may also be subject to persecution for reasons of
religion, for example, where they are (wrongly) perceived as LGBTI or where they support or are seen to
support them or their rights.
43. Negative attitudes held by religious groups and communities towards LGBTI individuals can be given
expression in a range of ways, from discouraging same-sex activity, or transgender behaviour or
expression of identity, among adherents to active opposition, including protests, beatings, naming/shaming
and “excommunication”, or even execution. The religion and political opinion grounds may overlap where

78

Yogyakarta Principles, Principle 18.

79

UNHCR, Handbook, para. 66.

80

Pitcherskaia v. INS, above footnote 45, found that the requirement on the applicant to prove the punitive intent of the perpetrator was unwarranted.

81

UNHCR, “Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees”, April 2001, available at:
http://www.unhcr.org/refworld/docid/3b20a3914.html, para. 19.

82

UNHCR, Guidelines on Social Group, para. 23.

83

UNHCR, Guidelines on Gender-Related Persecution, para. 32; UNHCR, Advisory Opinion by UNHCR to the Tokyo Bar Association Regarding Refugee Claims
Based on Sexual Orientation, 3 September 2004, available at; http://www.unhcr.org/refworld/docid/4551c0d04.html, para. 5. See also, Kwasi Amanfi v. John Ashcroft,
Attorney General, US, Nos. 01-4477 and 02-1541, (3rd Cir. 2003), 16 May 2003, available at: http://www.unhcr.org/refworld/docid/47fdfb2c1a.html, which concerned an
applicant who claimed persecution on account of imputed homosexuality.
84

UNHCR, Guidelines on Gender-Related Persecution, para. 25. See by analogy, In Re S-A, Interim Decision No. 3433, US Board of Immigration Appeals, 27 June
2000, available at: http://www.unhcr.org/refworld/docid/3ae6b6f224.html.

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religious and State institutions are not clearly separated. Religious organizations may impute opposition
to their teachings or governance by LGBTI individuals, whether or not this is the case. LGBTI applicants
may continue to profess adherence to a faith in which they have been subject to harm or a threat of harm.
Membership of a Particular Social Group
44. The 1951 Convention includes no specific list of particular social groups. Rather, “the term membership of
a particular social group should be read in an evolutionary manner, open to the diverse and changing
86
nature of groups in various societies and evolving international human rights norms.” UNHCR defines a
particular social group as:
a group of persons who share a common characteristic other than their risk of being persecuted, or who are
perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is
otherwise fundamental to identity, conscience or the exercise of one’s human rights. 87

45. The two approaches – “protected characteristics” and “social perception” - to identifying “particular social
groups” reflected in this definition are alternative, not cumulative tests. The “protected characteristics”
approach examines whether a group is united either by an innate or immutable characteristic or by a
characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it.
The “social perception” approach, on the other hand, examines whether a particular social group shares a
common characteristic which makes it cognizable or sets the group’s members apart from society at large.
46. Whether applying the "protected characteristics" or "social perception" approach, there is broad
88
89
acknowledgment that under a correct application of either of these approaches, lesbians, gay men,
90
91
bisexuals and transgender persons are members of “particular social groups” within the meaning of the
92
refugee definition. Relatively fewer claims have been made by intersex applicants, but they would also on
their face qualify under either approach.
47. Sexual orientation and/or gender identity are considered as innate and immutable characteristics or as
characteristics so fundamental to human dignity that the person should not be compelled to forsake them.
Where the identity of the applicant is still evolving, they may describe their sexual 2, 2017
h orientation and/or gender
Marc
identity as fluid or they may express confusion or uncertainty about theirnsexuality and/or identity. In both
ed o
situations, these characteristics are in any event to be considered hiv fundamental to their evolving identity
arc as
2686
and rightly within the social group ground.
13-7
.
, No
ions
S ss
v. ofe the social group associate with one another, or that they are
48. There is no requirement that members
z
igue
socially visible, for the purposes rof the refugee definition. “Social perception” does not mean to suggest a
Rod
gassense of community Brin
in or group identification as might exist for members of an organization or association.
93
cited
Thus, members of a social group may not be recognizable even to each other.
49. Decision makers should avoid reliance on stereotypes or assumptions, including visible markers, or a lack
thereof. This can be misleading in establishing an applicant’s membership of a particular social group. Not
all LGBTI individuals look or behave according to stereotypical notions. In addition, although an attribute or
characteristic expressed visibly may reinforce a finding that an applicant belongs to an LGBTI social group,
94
it is not a pre-condition for recognition of the group. In fact, a group of individuals may seek to avoid
95
manifesting their characteristics in society precisely to avoid persecution (see above paragraphs30-33).
The “social perception” approach requires neither that the common attribute be literally visible to the naked

85

UNHCR, Guidelines on Gender-Related Persecution, para. 26.

86

UNHCR, Guidelines on Social Group, para. 3.

87

UNHCR, Guidelines on Social Group, para. 11. Emphasis added.

88

See, for example, Pitcherskaia v. INS, above footnote 45; Decisions VA0-01624 and VA0-01625 (In Camera), Canada, Immigration and Refugee Board, 14 May
2001, available at: http://www.unhcr.org/refworld/docid/48246f092.html; Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal
and Another, Ex Parte Shah (A.P.), UK House of Lords (Judicial Committee), 25 March 1999, available at: http://www.unhcr.org/refworld/docid/3dec8abe4.html, pp. 8–
10.
89

See, for example. Matter of Toboso-Alfonso, above footnote 32; Refugee Appeal No. 1312/93, Re GJ, New Zealand, Refugee Status Appeals Authority, 30 August
1995, available at: http://www.unhcr.org/refworld/docid/3ae6b6938.html.

90

See, for example, VRAW v. Minister for Immigration and Multicultural and Indigenous Affairs, [2004] FCA 1133, Australia, Federal Court, 3 September 2004,
available at: http://www.unhcr.org/refworld/docid/4dada05c2.html; Decision T98-04159, Immigration and Refugee Board of Canada, 13 March 2000, available at:
http://www.unhcr.org/refworld/docid/4dada1672.html.
91

See, for example, RRT Case No. 0903346, above footnote 24; CE, SSR, 23 juin 1997, 171858, Ourbih, 171858, France, Conseil d’Etat, 23 June 1997, available at:
http://www.unhcr.org/refworld/docid/3ae6b67c14.html.
92

Sexual orientation and/or gender identity has been explicitly included in the refugee definition in some regional and domestic legislation. For instance, the European
Union has adopted a definition of particular social group, recognizing that “depending on the circumstances in the country of origin, a particular social group might
include a group based on a common characteristic of sexual orientation”, EU Qualification Directive, Article 10.

93

UNHCR, Guidelines on Social Group, paras. 15–16.

94

Judgment No. 634565/08015025, C, France, Cour nationale du droit d'asile, 7 July 2009, summary available at Contentieux des réfugiés: Jurisprudence du Conseil
d'État et de la Cour nationale du droit d'asile - Année 2009, 26 October 2010, available at: http://www.unhcr.org/refworld/docid/4dad9db02.html, pp. 58–59,
recognizing as a refugee a gay man who had neither claimed nor manifested his homosexuality openly.
95

UNHCR, HJ and HT, above footnote 30, para. 26.

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96

eye nor that the attribute be easily identifiable by the general public. It is furthermore not necessary that
particular members of the group or their common characteristics be publicly known in a society. The
determination rests simply on whether a group is “cognizable” or “set apart from society” in a more general,
abstract sense.
Political Opinion
50. The term political opinion should be broadly interpreted to incorporate any opinion on any matter in which
97
the machinery of State, society, or policy may be engaged. It may include an opinion as to gender roles
98
expected in the family or as regards education, work or other aspects of life. The expression of diverse
sexual orientation and gender identity can be considered political in certain circumstances, particularly in
countries where such non-conformity is viewed as challenging government policy or where it is perceived
as threatening prevailing social norms and values. Anti-LGBTI statements could be part of a State’s official
rhetoric, for example, denying the existence of homosexuality in the country or claiming that gay men and
lesbians are not considered part of the national identity.

E. INTERNAL FLIGHT OR RELOCATION ALTERNATIVE
51. The concept of an internal flight or relocation alternative (IFA) refers to whether it is possible for an
individual to be relocated to a specific area of the country where the risk of feared persecution would not
be well-founded and where, given the particular circumstances of the case, the individual could reasonably
99
be expected to establish him or herself and live a normal life. Protection would need to be available in a
genuine and meaningful way. United Nations agencies, non-governmental organizations, civil society and
other non-State actors are not a substitute for State protection.
52. Within the context of the holistic assessment of a claim for refugee status, the assessment of whether or
100
and (ii) the reasonableness
not there is an IFA requires two main analyses: (i) the relevance analysis
101
In considering the relevance and reasonableness of a proposed site of internal flight or
analysis.
relocation, gender considerations must be taken into account.
2017
h 2,
53. In respect of the relevance analysis, if the country in question criminalizes same-sex relations and enforces
Marc
napplicable in the entire territory.
the relevant legislation, it will normally be assumed that such laws ed o
are
rchiv
Where the fear of persecution is related to these laws, a 72686 a
consideration of IFA would not be relevant. Laws
o. 13
which do not allow a transgender or intersex , individual to access and receive appropriate medical
ns N
treatment if sought, or to change the v. Sessiomarkers on his or her documents, would also normally be
gender
z
applicable nationwide and should ebe taken into account when considering the proposed place of
rigu
Rod
gasrelocation.
in
in Br
cited
54. Furthermore, intolerance towards LGBTI individuals tends to exist countrywide in many situations, and
therefore an internal flight alternative will often not be available. Relocation is not a relevant alternative if it
were to expose the applicant to the original or any new forms of persecution. IFA should not be relied upon
where relocation involves (re-)concealment of one’s sexual orientation and/or gender identity to be safe
102
(see paragraphs 30-33).
55. Some countries have seen social and political progress which is sometimes localized in urban areas and
these locations may in certain circumstances constitute a relocation alternative. In this context, it is
important to recall that the decision maker bears the burden of proof of establishing that an analysis of
relocation is relevant to the particular case, including identifying the proposed place of relocation and
103
collecting country of origin information about it (see further below at paragraph 66).
56. In determining whether internal flight is reasonable, the decision maker needs to assess whether return to
the proposed place of relocation would cause undue hardship, including by examining the applicant’s
104
personal circumstances; the existence of past persecution; safety and security; respect for human rights;
96

See, for example, UNHCR, Valdiviezo-Galdamez v. Holder, Attorney General. Brief of the United Nations High Commissioner for Refugees as Amicus Curiae in
Support of the Petitioner, 14 April 2009, available at: http://www.unhcr.org/refworld/docid/49ef25102.html; Gatimi et al. v. Holder, Attorney General, No. 083197, United States Court of Appeals for the Seventh Circuit, 20 August 2009, available at: http://www.unhcr.org/refworld/docid/4aba40332.html.
97

Canada v. Ward, above footnote 31.

98

UNHCR, Guidelines on Gender-Related Persecution, para. 32.

99

See UNHCR, “Guidelines on International Protection No. 4: ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention
and/or 1967 Protocol Relating to the Status of Refugees”, 23 July 2003, HCR/GIP/03/04 (hereafter “UNHCR, Guidelines on Internal Flight Alternative”), para. 6.

100

The elements to be examined under this analysis are the following: Is the area of relocation practically, safely and legally accessible to the individual? Is the agent
of persecution a State or non-State agent? Would the claimant be exposed to a risk of being persecuted or other serious harm upon relocation?

101

The criterion to be examined under this analysis is: Can the claimant lead a relatively normal life without facing undue hardship?

102

See, for example, Okoli v. Canada (Minister of Citizenship and Immigration), 2009 FC 332, Canada, Federal Court, 31 March 2009, available at:
http://www.unhcr.org/refworld/docid/4a5b4bfa2.html, which found that the concealment of an immutable characteristic, that is, the applicant’s sexual orientation, was
an “impermissible requirement” for the assessment of internal flight alternative, paras. 36–37, 39; HJ and HT, above footnote 30. para. 21.
103

UNHCR, Guidelines on Internal Flight Alternative, paras. 33–34.

104

Boer-Sedano v. Gonzales, US, 418 F.3d 1082, (9th Cir. 2005), 12 August 2005, available at: http://www.unhcr.org/refworld/docid/4821a2ba2.html, found that the

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105

and possibility for economic survival.
The applicant needs to be able to access a minimum level of
political, civil and socio-economic rights. Women may have lesser economic opportunities than men, or
may be unable to live separately from male family members, and this should be evaluated in the overall
106
context of the case.

F. SUR PLACE CLAIMS
57. A sur place claim arises after arrival in the country of asylum, either as a result of the applicant’s activities
in the country of asylum or as a consequence of events, which have occurred or are occurring in the
107
applicant’s country of origin since their departure. Sur place claims may also arise due to changes in the
personal identity or gender expression of the applicant after his or her arrival in the country of asylum. It
should be noted that some LGBTI applicants may not have identified themselves as LGBTI before the
arrival to the country of asylum or may have consciously decided not to act on their sexual orientation or
gender identity in their country of origin. Their fear of persecution may thus arise or find expression whilst
they are in the country of asylum, giving rise to a refugee claim sur place. Many such claims arise where
an LGBTI individual engages in political activism or media work or their sexual orientation is exposed by
someone else.

V. PROCEDURAL ISSUES
General
58. LGBTI individuals require a supportive environment throughout the refugee status determination
procedure, including pre-screening so that they can present their claims fully and without fear. A safe
environment is equally important during consultations with legal representatives.
59. Discrimination, hatred and violence in all its forms can impact detrimentally on the applicant’s capacity to
present a claim. Some may be deeply affected by feelings of shame, internalized homophobia and trauma,
and their capacity to present their case may be greatly diminished as a consequence. Where the applicant
7
is in the process of coming to terms with his or her identity or fears openly expressing his or her sexual
, 201
ch 2
orientation and gender identity, he or she may be reluctant to identify on Mtrue extent of the persecution
the ar
d
108
h e
Adverse judgements should not generally iv drawn from someone not having
suffered or feared.
6 arc be
7268
declared their sexual orientation or gender identity at13- screening phase or in the early stages of the
the
o.
ns, N
interview. Due to their often complex nature,sclaims based on sexual orientation and/or gender identity are
es io
109
S
generally unsuited to accelerated processing or the application of “safe country or origin” concepts.
z v.
rigue
-Rod
gas
60. In order to ensure in Brinrefugee claims relating to sexual orientation and/or gender identity are properly
that
cited the refugee status determination process, the following measures should be borne in
considered during
mind:
i.

An open and reassuring environment is often crucial to establishing trust between the interviewer and
applicant and will assist the disclosure of personal and sensitive information. At the beginning of the
interview, the interviewer needs to assure the applicant that all aspects of his or her claim will be
110
treated in confidence. Interpreters are also bound by confidentiality.

ii.

Interviewers and decision makers need to maintain an objective approach so that they do not reach
conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI individuals.
The presence or absence of certain stereotypical behaviours or appearances should not be relied
upon to conclude that an applicant possesses or does not possess a given sexual orientation or
111
gender identity. There are no universal characteristics or qualities that typify LGBTI individuals any
more than heterosexual individuals. Their life experiences can vary greatly even if they are from the
same country.

applicant’s [HIV-positive] health status would make relocation unreasonable.
105

UNHCR, Guidelines on Internal Flight Alternative, paras. 22–30.

106

UNHCR, Guidelines on Gender-related Persecution.

107

UNHCR, Handbook, paras. 94, 96.

108

Some LGBTI applicants may, for instance, change their claims during the process by initially stating that their sexual orientation is imputed to them or making a
claim on a ground unrelated to their sexual orientation or gender identity, to eventually expressing that they are LGBTI.

109

UNHCR, “Statement on the right to an effective remedy in relation to accelerated asylum procedures”, 21 May 2010, available at:
http://www.unhcr.org/refworld/docid/4bf67fa12.html, paras. 11–12.

110

UNHCR, Guidelines on Gender-Related Persecution, paras. 35, 36.iv.

111

This issue has been addressed by a number of US Courts: Shahinaj v. Gonzales, 481 F.3d 1027, ( 8th Cir. 2007), 2 April 2007, available at:
http://www.unhcr.org/refworld/docid/4821bd462.html; Razkane v. Holder, Attorney General, No. 08-9519, (10th Cir. 2009), 21 April 2009, available at:
http://www.unhcr.org/refworld/docid/4a5c97042.html; Todorovic v. US Attorney General, No. 09-11652, (11th Cir. 2010), 27 September 2010, available at:
http://www.unhcr.org/refworld/docid/4cd968902.html.

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iii.

The interviewer and the interpreter must avoid expressing, whether verbally or through body
language, any judgement about the applicant’s sexual orientation, gender identity, sexual behaviour
or relationship pattern. Interviewers and interpreters who are uncomfortable with diversity of sexual
orientation and gender identity may inadvertently display distancing or demeaning body language.
Self-awareness and specialized training (see iv.) are therefore critical aspects to a fair status
determination.

iv.

Specialized training on the particular aspects of LGBTI refugee claims for decision makers,
interviewers, interpreters, advocates and legal representatives is crucial.

v.

The use of vocabulary that is non-offensive and shows positive disposition towards diversity of
112
sexual orientation and gender identity, particularly in the applicant’s own language, is essential.
Use of inappropriate terminology can hinder applicants from presenting the actual nature of their fear.
The use of offensive terms may be part of the persecution, for example, in acts of bullying or
harassment. Even seemingly neutral or scientific terms can have the same effect as pejorative terms.
For instance, although widely used, “homosexual” is also considered a derogatory term in some
countries.

vi.

Specific requests made by applicants in relation to the gender of interviewers or interpreters should
be considered favourably. This may assist the applicant to testify as openly as possible about
sensitive issues. If the interpreter is from the same country, religion or cultural background, this may
heighten the applicant’s sense of shame and hinder him or her from fully presenting all the relevant
aspects of the claim.

vii.

Questioning about incidents of sexual violence needs to be conducted with the same sensitivity as in
113
Respect for the
the case of any other sexual assault victims, whether victims are male or female.
114
human dignity of the asylum-seeker should be a guiding principle at all times.

viii.

For claims based on sexual orientation and/or gender identity by women, additional safeguards are
115
Women asylum-seekers
presented in UNHCR’s Guidelines on Gender-Related Persecution.
017
should, for instance, be interviewed separately, without the presence rch 2, 2 family members in
a of male
nM
order to ensure they have an opportunity to present their case.ived o
arch
2686
13-7 of child applicants, including processing on a
.
ix.
Specific procedural safeguards apply in the ocase
s, N
116
priority basis and the appointment .of esqualified guardian as well as a legal representative.
a sion
v S
uez
odrig
a asylum in a country where same-sex relations are criminalized, these laws can
61. Where an individual seeks s-R
Bring
impede his orcited in
her access to asylum procedures or deter the person from mentioning his or her sexual
orientation or gender identity within status determination interviews. In such situations, it may be necessary
for UNHCR to become directly involved in the case, including by conducting refugee status determination
117
under its mandate.
Credibility and Establishing the Applicant’s Sexual Orientation and/or Gender Identity
62. Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of
credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements
around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are
usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender
118
identity, rather than a focus on sexual practices.
63. Both open-ended and specific questions that are crafted in a non-judgemental manner may allow the
applicant to explain his or her claim in a non-confrontational way. Developing a list of questions in
preparation of the interview may be helpful, however, it is important to bear in mind that there is no magic

112

For suggested appropriate terminology, see above at paras. 9–12.

113

UNHCR, Guidelines on Gender-Related Persecution, para. 36 viii, xi.

114
UNHCR, “Summary Report, Informal Meeting of Experts on Refugee Claims relating to Sexual Orientation and Gender Identity”, 10 September 2011 (hereafter
“UNHCR, Summary Report of Informal Meeting of Experts”), available at: http://www.unhcr.org/refworld/docid/4fa910f92.html, para. 34.
115

UNHCR, Guidelines on Gender-Related Persecution paras. 35–37.

116

UNHCR, “Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to
the Status of Refugees”, 22 December 2009, HCR/GIP/09/08, available at: http://www.unhcr.org/refworld/docid/4b2f4f6d2.html, paras. 65–77.

117

It is generally only where States have not yet acceded to the international refugee instruments, or if they have acceded but have not yet established national
procedures, or these procedures are not fully functioning that UNHCR may be called upon to undertake individual refugee status determination and recognize refugees
under its mandate. This function, therefore, can be exercised either in a State which is, or a State which is not, a signatory to the international refugee instruments. In
these situations, UNHCR conducts refugee status determination for protection purposes (in order to protect refugees from refoulement and detention, for example)
and/or to facilitate a durable solution. See, for example, UNHCR, MM (Iran) v. Secretary of State for the Home Department - Written Submission on Behalf of the
United Nations High Commissioner for Refugees, 3 August 2010, C5/2009/2479, available at: http://www.unhcr.org/refworld/docid/4c6aa7db2.html, para. 11.

118

UNHCR, Summary Report of Informal Meeting of Experts, para. 32.

15

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formula of questions to ask and no set of “right” answers in response. Useful areas of questioning may
include the following:
i.

Self-identification: Self-identification as a LGBTI person should be taken as an indication of the
applicant’s sexual orientation and/or gender identity. The social and cultural background of the
applicant may affect how the person self-identifies. Some LGB individuals, for example, may harbour
deep shame and/or internalized homophobia, leading them to deny their sexual orientation and/or to
adopt verbal and physical behaviours in line with heterosexual norms and roles. Applicants from
highly intolerant countries may, for instance, not readily identify as LGBTI. This alone should not rule
out that the applicant could have a claim based on sexual orientation or gender identity where other
indicators are present.

ii.

Childhood: In some cases, before LGBTI individuals come to understand their own identity fully, they
may feel “different” as children. When relevant, probing this experience of “difference” can be helpful
to establishing the applicant’s identity. The core attractions that form the basis for adult sexual
119
while some may not
orientation may emerge between middle childhood and early adolescence,
experience same-sex attraction until later in life. Likewise, persons may not be aware of their full
gender identity until adolescence, early adulthood or later in life, as gender codes in many societies
may be less prescriptive or strict during childhood than in (early) adulthood.

iii.

Self-Realization: The expression “coming out” can mean both an LGBTI person’s coming to terms
with his or her own LGBTI identity and/or the individual communicating his or her identity to others.
Questions about both of these “coming out” or self-realization processes may be a useful way to get
the applicant talking about his or her identity, including in the country of origin as well as in the
country of asylum. Some people know that they are LGBTI for a long time before, for example, they
actually pursue relationships with other people, and/or they express their identity openly. Some, for
example, may engage in sexual activity (with same-sex and/or other-sex partners) before assigning a
clear label to their sexual orientation. Prejudice and discrimination may make it difficult for people to
come to terms with their sexual orientation and/or gender identity and it can, therefore, be a slow
120
process.
7
, 201
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Gender identity: The fact that a transgender applicant has not ed o
undergone any medical treatment or
hiv
6 rc
other steps to help his or her outward appearance matchathe preferred identity should not be taken
7268
. Some transgender people identify with their chosen
as evidence that the person is not transgender. 13
s, No
identity without medical treatment .asepartn their transition, while others do not have access to such
ssio of
S
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treatment. It may be appropriate to ask questions about any steps that a transgender applicant has
rigue
-Rod
taken in his or heringas
transition.
in Br
cited
Non-conformity: LGBTI applicants may have grown up in cultures where their sexuality and/or gender
identity is shameful or taboo. As a result, they may struggle with their sexual orientation or gender
identity at some point in their lives. This may move them away from, or place them in opposition to
their families, friends, communities and society in general. Experiences of disapproval and of “being
different” or the “other” may result in feelings of shame, stigmatization or isolation.

iv.

v.

vi.

Family Relationships: Applicants may or may not have disclosed their sexual orientation and/or
gender identity to close family members. Such disclosures may be fraught with difficulty and can lead
to violent and abusive reactions by family members. As noted above, an applicant may be married,
or divorced and/or have children. These factors by themselves do not mean that the applicant is not
LGBTI. Should concerns of the credibility of an applicant who is married arise, it may be appropriate
to ask the applicant a few questions surrounding the reasons for marriage. If the applicant is able to
provide a consistent and reasonable explanation of why he or she is married and/or has children, the
121
portion of the testimony should be found credible.

vii.

Romantic and Sexual Relationships: The applicant’s relationships with and attraction to partners, or
their hope to have future relationships, will usually be part of their narrative of LGBTI individuals. Not
everyone, however, especially young LGBTI people, will have had romantic or sexual relationships.
The fact that an applicant has not had any relationship(s) in the country of origin does not necessarily
mean that he or she is not LGBTI. It may rather be an indication that he or she has been seeking to
avoid harm. Presuming that the applicant has been involved in a same-sex relationship, decision
makers need to be sensitive with regard to questioning about past and current relationships since it
involves personal information which the applicant may be reluctant to discuss in an interview setting.
Detailed questions about the applicant’s sex life should be avoided. It is not an effective method of
ascertaining the well-foundedness of the applicant’s fear of persecution on account of his or her

119

APA, Sexual Orientation and Homosexuality.

120

APA, Sexual Orientation and Homosexuality.

121

USCIS, Guidance for Adjudicating LGBTI Claims, pp. 39–40.

16

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sexual orientation and/or gender identity. Interviewers and decision makers need to bear in mind that
sexual orientation and gender identity are about a person’s identity, whether or not that identity is
manifested through sexual acts.
viii.

Community Relationship: Questions about the applicant’s knowledge of LGBTI contacts, groups and
activities in the country of origin and asylum may be useful. It is important to note, however, that
applicants who were not open about their sexual orientation or gender identity in the country of origin
may not have information about LGBTI venues or culture. For example, ignorance of commonly
known meeting places and activities for LGBTI groups is not necessarily indicative of the applicant’s
lack of credibility. Lack of engagement with other members of the LGBTI community in the country of
asylum or failure to join LGBTI groups there may be explained by economic factors, geographic
location, language and/or cultural barriers, lack of such opportunities, personal choices or a fear of
122
exposure.

ix.

Religion: Where the applicant’s personal identity is connected with his/her faith, religion and/or belief,
this may be helpful to examine as an additional narrative about their sexual orientation or gender
identity. The influence of religion in the lives of LGBTI persons can be complex, dynamic, and a
123
source of ambivalence.

Evidentiary Matters
64. The applicant’s own testimony is the primary and often the only source of evidence, especially where
persecution is at the hands of family members or the community. Where there is a lack of country of origin
information, the decision maker will have to rely on the applicant’s statements alone. Normally, an
124
Applicants should never be expected or
interview should suffice to bring the applicant’s story to light.
asked to bring in documentary or photographic evidence of intimate acts. It would also be inappropriate to
expect a couple to be physically demonstrative at an interview as a way to establish their sexual
orientation.
65. Medical “testing” of the applicant’s sexual orientation is an infringement of basic human 7
1 rights and must not
125
2 0
On the other hand, medical evidence of transition-related surgery,, 2
be used.
arch hormonal treatment or
M
biological characteristics (in the case of intersex individuals) may corroborate their personal narrative.
d on
hive
6 arc
68
3-72
66. Relevant and specific country of origin information o. 1the situation and treatment of LGBTI individuals is
N on
ns,to the conclusion that the applicant’s claim is unfounded
sio
often lacking. This should not automaticallyslead
v. Se
126
The extent to which international
or that there is no persecution dof uez
rig LGBTI individuals in that country.
o
as-R
organizations and other ggroups are able to monitor and document abuses against LGBTI individuals
Brin
remain limitedcitedmany countries. Increased activism has often been met with attacks on human rights
in in
defenders, which impede their ability to document violations. Stigma attached to issues surrounding sexual
orientation and/or gender identity also contributes to incidents going unreported. Information can be
especially scarce for certain groups, in particular bisexual, lesbian, transgender and intersex people. It is
critical to avoid automatically drawing conclusions based on information about one group or another;
however, it may serve as an indication of the applicant’s situation in certain circumstances.

122
Essa v. Canada (Minister of Citizenship and Immigration), 2011 FC 1493, Canada, Federal Court, 20 December 2011, available at:
http://www.unhcr.org/refworld/docid/4f901c392.html, paras. 30–31, found that the Board’s insistence on the applicant going to or have knowledge about gay venues in
the country of asylum in order to be gay was not reasonable.
123

APA, Practice Guidelines for LGB Clients.

124

UNHCR, Handbook, paras. 196, 203–204.

125

See further, “UNHCR’s Comments on the Practice of Phallometry in the Czech Republic to Determine the Credibility of Asylum Claims based on Persecution due to
Sexual Orientation”, April 2011, available at: http://www.unhcr.org/refworld/docid/4daeb07b2.html.
126

See, for example, Molnar v. Canada, above footnote 39.

17

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A/HRC/29/23

United Nations

General Assembly

Distr.: General
4 May 2015
Original: English

Human Rights Council
Twenty-ninth session
Agenda items 2 and 8
Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the
High Commissioner and the Secretary-General
Follow-up to and implementation of the Vienna
Declaration and Programme of Action

Discrimination and violence against individuals based on
their sexual orientation and gender identity
h 2,

2017

rc
Report of the Office of the United Nations High Commissioner for
n Ma
ed o
rchiv
Human Rights
6a
7268

d in

asBring

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rigue

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Summary

-

o. 13

ns, N

ssio
v. Se

cit
The epresent report is submitted to the Human Rights Council pursuant to its
resolution 27/32, in which the Council requested the United Nations High Commissioner
for Human Rights to update the report of the Office of the High Commission on violence
and discrimination against individuals based on their sexual orientation and gender identity
(A/HRC/19/41).

GE.15-08842 (E)



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A/HRC/29/23

Contents
Paragraphs

Page

I.

Introduction .............................................................................................................

1–2

3

II.

Recent developments...............................................................................................

3–8

3

III.

Applicable international standards and obligations .................................................

9 – 19

4

A.

To protect individuals from violence ..............................................................

11 – 12

5

B.

To prevent torture and ill-treatment ................................................................

13 – 14

5

C.

To decriminalize homosexuality and to repeal other laws used to punish
individuals on the basis of sexual orientation and gender identity .................

15

6

To protect individuals from discrimination on grounds of sexual orientation
and gender identity .........................................................................................

16 – 17

6

To protect rights to freedom of expression, association and assembly and to take
part in the conduct of public affairs ................................................................

18 – 19

7

Homophobic and transphobic violence ...................................................................

20 – 40

7

A.

Context............................................................................................................

20 – 25

7

B.

Killings ...........................................................................................................

26 – 30

8

C.

Other violence, including sexual violence ......................................................

31 – 33

9

D.

20
Torture and ill-treatment .................................................................................17
h 2,

34 – 38

10

E.

Positive developments since 2011 ..................................................................
ive
arch

39 – 40

11

41 – 75

12

43 – 49

12

50 – 70

14

Positive developments since 2011 ..................................................................

71 – 75

19

Conclusions and recommendations .........................................................................

76 – 81

20

A.

States...............................................................................................................

78 – 79

20

B.

National human rights institutions ..................................................................

80

21

C.

Human Rights Council ...................................................................................

81

22

D.
E.
IV.

V.

2686
13-7
Discrimination .........................................................................................................
No.
s,
ssion
v. Se
A. Discriminatory laws ........................................................................................
uez
odrig
as-R
Bring
B. Discriminatory practices .................................................................................
in
cited

C.
VI.

2

rc

Ma
d on

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A/HRC/29/23

I. Introduction
1.
In 2011, pursuant to Human Rights Council resolution 17/19, the United Nations
High Commissioner for Human Rights submitted a report to the Council in which she
described a pattern of discrimination and violence directed at people in all regions on the
basis of their sexual orientation and gender identity.1 Almost three years on, in its resolution
27/32, the Council requested the High Commissioner to update the above-mentioned report
with a view to sharing good practices and ways to overcome violence and discrimination, in
application of existing international human rights law and standards.
2.
The present report draws on recent findings of United Nations human rights bodies,
regional organizations and non-governmental organizations, and information submitted by
Governments, including 28 replies to a note verbale addressed to Member States on 29
December 2014.2

II. Recent developments
3.
In recent years, Governments in all regions have pursued a variety of initiatives
aimed at reducing levels of violence and discrimination based on sexual orientation and
gender identity. For example, since 2011, 14 States have adopted or strengthened antidiscrimination and hate crime laws, extending protection on grounds of sexual orientation
and/or gender identity and, in two cases, also introducing legal protections for intersex
persons. Three States have abolished criminal sanctions for homosexuality; 12 have
2017
introduced marriage or civil unions for same-sex couples nationally;2,and 10 have
rch
n Ma persons to obtain
o
introduced reforms that, to varying degrees, make it easier forhtransgender
ived
6 arc
legal recognition of their gender identity.
7268
3.1

, No

s
4.
In dozens of countries, police,ejudges, prison guards, medical staff and teachers are
ssion
v. S
uez
receiving gender and sexuality sensitivity training, anti-bullying programmes have been
rig
-Rod
launched in schools, as shelters have been built to house homeless lesbian, gay, bisexual
Bring and
in
cited
and transgender (LGBT) youth. Popular television programmes have integrated LGBT
characters in a positive way and celebrities have helped to raise awareness by “coming out”
as LGBT persons themselves or speaking out in support of members of the LGBT
community. In all regions, LGBT and intersex3 human rights defenders are more vocal and
visible – in several cases successfully challenging in the courts attempts by authorities to
restrict their legitimate activities.

5.
While these advances are welcome, they are overshadowed by continuing, serious
and widespread human rights violations perpetrated, too often with impunity, against
individuals based on their sexual orientation and gender identity. Since 2011, hundreds of
people have been killed and thousands more injured in brutal, violent attacks – some of
which are chronicled below. Other documented violations include torture, arbitrary
detention, denial of rights to assembly and expression, and discrimination in health care,

1
2

3

A/HRC/19/41.
Replies are available on the website of the Office of the High Commissioner at
www.ohchr.org/EN/Issues/Discrimination/Pages/SOGIHRC29Replies.aspx.
While “LGBT” is used in the present report, other terms are used in different regions. References are
also included to violations against intersex persons, who may have any sexual orientation or gender
identity. United Nations human rights mechanisms have repeatedly addressed such violations together
with those directed at LGBT persons.

3

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education, employment and housing. These and related abuses warrant a concerted response
from Governments, legislatures, regional organizations, national human rights institutions
and civil society, as well as from United Nations bodies – the Human Rights Council
included.
6.
Concerns regarding the extent and gravity of violence and discrimination against
LGBT and intersex persons have been raised repeatedly by United Nations human rights
treaty bodies and special procedures. In recent years, the Office of the High Commissioner
(OHCHR) has published a range of guidance and public information materials – including
factsheets, booklets and short videos – and has sought to engage States in a constructive
dialogue on ways to better protect the rights of LGBT and intersex persons. In July 2013,
the High Commissioner launched UN Free & Equal (www.unfe.org), a global education
campaign to combat homophobia and transphobia that has so far reached more than a
billion people around the world through events and via traditional and social media.
7.
The rights of LGBT persons have also been a focus of work going on across the
wider United Nations system. In his message to the Oslo Conference on Human Rights,
Sexual Orientation and Gender Identity, the Secretary-General described the fight against
homophobia and transphobia as “one of the great, neglected human rights challenges of our
time” and pledged to work for an end to criminalization and for action to tackle violence
and prejudice. United Nations agencies are increasingly integrating issues of sexual
orientation and gender identity into their programmatic work, including in the areas of
development, education, labour rights, child rights, gender equality, refugee protection,
HIV and public health.4
8.
Human rights, sexual orientation and gender identity have also been addressed by
7
, 01
regional organizations in Africa, the Americas and Europe. In 2014, 2the African
rch 2
n Ma
Commission on Human and Peoples’ Rights passed a resolution oin which it condemned
ived
a ch
violence and other human rights violations based on7real6orr imputed sexual orientation and
268
o 13
gender identity; the Organization of American . States approved its seventh resolution on
ns, N
essiogender identity, having in 2013 adopted the
human rights, sexual orientation. S
v and
uez
Convention against all-Rodrig of Discrimination and Intolerance, which addresses these
forms
s
inga
in Br
issues; the eInter-American Commission on Human Rights established the mandate of
cit d
Rapporteur on the rights of LGBT and intersex persons, having established a dedicated unit
in 2011; the European Union adopted guidelines on the promotion and protection of human
rights of LGBT and intersex persons, and both the European Parliament and the
Parliamentary Assembly of the Council of Europe adopted resolutions on the subject; and
the European Court of Human Rights and the Inter-American Court of Human Rights
issued several judgements affirming the rights of LGBT persons to equal treatment and
protection under the law.

III. Applicable international standards and obligations
9.
Application of international human rights law is guided by the fundamental
principles of universality, equality and non-discrimination. All human beings, irrespective
of their sexual orientation and gender identity, are entitled to enjoy the protection of
international human rights law with respect to the rights to life, security of person and
privacy, to freedom from torture and ill-treatment, discrimination and arbitrary arrest and

4

4

See “The Role of the United Nations in Combatting Discrimination and Violence against Individuals
Based on Sexual Orientation and Gender Identity”, OHCHR, 2014.

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detention, and to freedom of expression, association and peaceful assembly, and all other
civil, political, economic, social and cultural rights.
10.
States have well-established obligations to respect, protect and fulfil the human
rights of all persons within their jurisdiction, including LGBT and intersex persons. These
obligations extend to refraining from interference in the enjoyment of rights, preventing
abuses by third parties and proactively tackling barriers to the enjoyment of human rights,
including, in the present context, discriminatory attitudes and practices. Specific related
obligations are elaborated below, building on analysis in the previous report
(A/HRC/19/41) and evolving work of United Nations human rights mechanisms.

A.

To protect individuals from violence
11.
States have an obligation to exercise due diligence to prevent, investigate, punish
and redress deprivation of life and other acts of violence. United Nations mechanisms have
called upon States to fulfil this obligation by taking legislative and other measures to
prohibit, investigate and prosecute all acts of targeted, hate-motivated violence and
incitement to violence directed at LGBT and intersex persons, and to provide remedy to
victims and protection against reprisals.5 They have called for State officials to publically
condemn such acts, and to record statistics on such crimes and the outcomes of
investigations, prosecutions and remedial measures. 6 The application of the death penalty
on the basis of sexual orientation and gender identity violates fundamental State obligations
to protect the rights to life, privacy, equality before the law and freedom from
discrimination.7
017

12.
States also have an obligation not to return refugees to places where 2, 2 or freedom
rch life
n Ma
would be threatened on account of actual or perceived sexual oorientation and gender
ed
iv
arch
686
identity.8
3-72
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ssio
v. Se

To prevent torture-Rodrigue
and ill-treatment
s

B.

ited

in

a
Bring

c
13.
States have an obligation to protect all persons, including LGBT and intersex
persons, from torture and other cruel, inhuman or degrading treatment or punishment in
custodial, medical and other settings. This obligation extends to prohibiting, preventing,
investigating and providing redress for torture and ill-treatment in all contexts of State
control, including by ensuring that such acts are offences under domestic criminal law. 9
State responsibility is engaged if public officials, including prison and police officers,
directly commit, instigate, incite, encourage, acquiesce in or otherwise participate or are
complicit in such acts, as well as if officials fail to prevent, investigate, prosecute and
punish such acts by public or private actors.10

14.
The medical practices condemned by United Nations mechanisms in this context
include so-called “conversion” therapy, forced genital and anal examinations, forced and
5

6
7
8

9
10

See CCPR/C/KGZ/CO/2, para. 9, A/HRC/20/22/Add.2, paras. 5, 55, 76, CCPR/C/MWI/CO/1/Add.1,
para. 10.
See CCPR/C/MWI/CO/1, para. 7, A/HRC/26/30/Add.3, para. 88.
See CCPR/C/MRT/CO/1, para. 8, A/67/275, paras. 36-38.
See also UNHCR, Guidelines on international protection No. 9, HCR/GIP/12/09, 23 October 2012;
CCPR/C/108/D/2149/2012.
See CAT/C/GC/3, para. 39.
See CAT/C/GC/2, paras. 15-19.

5

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otherwise involuntary sterilization and medically unnecessary surgery and treatment
performed on intersex children.11

C.

To decriminalize homosexuality and to repeal other laws used to punish
individuals on the basis of sexual orientation and gender identity
15.
States have an obligation to protect the rights to privacy, liberty and security of the
person, including the right not to be subjected to arbitrary arrest and detention. United
Nations mechanisms have called upon States to fulfil these obligations by repealing laws
used to punish individuals based on their sexual orientation and gender identity, including
laws criminalizing homosexuality and cross-dressing, and have rejected attempts to justify
such laws on grounds of the protection of public health or morals.12 States must refrain
from arresting or detaining persons on discriminatory grounds, including sexual orientation
and gender identity.13

D.

To protect individuals from discrimination on grounds of sexual
orientation and gender identity
16.
The protection of rights to equality before the law, equal protection of the law and
freedom from discrimination is a fundamental obligation of States under international law,
and requires States to prohibit and prevent discrimination in private and public spheres, and
to diminish conditions and attitudes that cause or perpetuate such discrimination. 14 To this
end, States should enact comprehensive anti-discrimination legislation that includes sexual
2017
orientation and gender identity among protected grounds. 15 States should creview and repeal
h 2,
Mar
nand intersex persons,
d
discriminatory laws and address discrimination against LGBTo
hive
6 arc
including in the enjoyment of the rights to health, education, work, water, adequate housing
7268
. 13, No
and social security.16
ions
ss

v. Se

z
17.
States also have obligations to address discrimination against children and young
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gasor are perceived as LGBT or intersex. This includes harassment,
persons who identify
Brin
d in
c schools, lack of access to health information and services, and coercive medical
bullying inite
treatment.17 United Nations mechanisms have called upon States to legally recognize
transgender persons’ preferred gender, without abusive requirements, including
sterilization, forced medical treatment or divorce.18 They have called upon States to develop
education campaigns and train public officials to combat stigma and discriminatory
attitudes, to provide victims of discrimination with effective and appropriate remedies, and
11
12

13

14
15

16

17
18

6

See A/HRC/22/53, paras. 76-79, 88, CRC/C/CHE/CO/2-4, paras. 42-43, CAT/C/DEU/CO/5, para. 20.
See CCPR/C/50/D/488/1992, paras. 8.3-10, E/C.12/IRN/CO/2, para. 7, CEDAW/C/UGA/CO/7,
paras. 43-44, CRC/C/GAM/CO/2-3, paras. 29-30, A/HRC/14/20 paras. 17-26, CCPR/C/KWT/CO/2,
para. 30.
See CCPR/C/GC/35, paras. 3, 17, A/HRC/4/40/Add.1, opinion 22/2006, para. 19; A/HRC/22/44,
para. 38.
See CCPR/C/PER/CO/5, para. 8, E/C.12/GC/20, paras. 7-11, CEDAW/C/GC/28, para. 18.
See E/C.12/GC/20, para. 32 and, 39, CEDAW/C/CRI/CO/5-6, para. 40, CRC/C/AUS/CO/4, paras.
29-30, CRC/C/CHE/CO/2-4, para. 25.
See E/C.12/GC/20, para. 11, 27 and 32, E/C.12/IDN/CO/1, para. 6, CRC/C/IRQ/CO/2-4, paras. 1920.
See CRC/C/RUS/CO/4-5, paras. 24-25, 55-56, 59-60, CRC/C/GC/15, paras. 8, 31, 60.
See CCPR/C/IRL/CO/3, para. 8, CCPR/C/IRL/CO/4, para. 7, CCPR/C/UKR/CO/7, para. 10,
CEDAW/C/NLD/CO/5, paras. 46-47.

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to ensure that perpetrators face administrative, civil or criminal responsibility, as
appropriate.19 States should also provide legal recognition and protection to same-sex
couples20 and protect the rights of their children, without discrimination.21

E.

To protect rights to freedom of expression, association and assembly
and to take part in the conduct of public affairs
18.
States have obligations to protect rights to freedom of thought and expression,
association and peaceful assembly without discrimination on the grounds of sexual
orientation or gender identity. To that end, they should review and repeal discriminatory
provisions in domestic legislation that have a disproportionate impact on the exercise of
these rights by LGBT persons and others advocating for their rights. States should refrain
from directly interfering with these rights and protect LGBT persons exercising these rights
from attacks and reprisals through preventive measures and by investigating attacks,
prosecuting perpetrators and ensuring remedy for victims. 22
19.
States must protect the right to take part in the conduct of public affairs, without
discrimination, and ensure that LGBT and intersex persons and organizations defending
their rights are consulted with regard to legislation and policies that affect their rights. 23
States should take measures to empower LGBT and intersex persons, and to facilitate their
participation in economic, social and political life. 24

IV. Homophobic and transphobic violence25
7
, 201

rch 2

A.

Context

hive

6 arc

o.

268
13-7

Ma
d on

s, N
20.
Due diligence requires States tosensure the protection of those at particular risk of
s ion
v. Se context, those targeted because of their sexual
z
violence – including, in the epresent
rigu
Rod
orientation and gendersidentity.
ga rin
ited

in B

c
21.
United Nations human rights mechanisms continue to receive reports of homophobic
and transphobic violence committed in all regions. Such violence may be physical
(including murder, beatings, kidnapping and sexual assault) or psychological (including
threats, coercion and the arbitrary deprivation of liberty, including forced psychiatric
incarceration). These attacks constitute a form of gender-based violence, driven by a desire
to punish individuals whose appearance or behaviour appears to challenge gender
stereotypes.

22.
In addition to “street” violence and other spontaneous attacks in public settings,
those perceived as LGBT remain targets of organized abuse, including by religious

19

20
21
22

23
24
25

See CCPR/C/ALB/CO/2, para. 8, CRC/C/TZA/CO/3-5, paras. 55-56, CAT/C/RUS/CO/5, para. 15,
CEDAW/C/CRI/CO/5-6, para. 41, CCPR/C/UKR/CO/7, para. 8, CCPR/C/21/Rev.1/Add.13.
See E/C.12/BGR/CO/4-5, para. 17, E/C.12/SVK/CO/2, para. 10, CCPR/C/JPN/CO/5, para. 29.
See CRC/C/GC/15, para. 8.
See CCPR/C/GC/34, para. 26, CCPR/C/GEO/CO/4, para. 8, A/HRC/25/55/Add.3, para. 364,
A/HRC/26/29.
See A/HRC/23/36/Add.2, para. 97, CEDAW/C/DEU/CO/6, para. 61, CCPR/C/IRL/CO/4, para. 7.
See A/69/365, paras. 24, 76, 87-91, A/HRC/26/39/Add.2, para. 110(a).
See also A/HRC/19/41, paras. 20-39.

7

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extremists, paramilitary groups and extreme nationalists.26 LGBT and gender nonconforming youth are at risk of family and community violence. Lesbians and transgender
women are at particular risk because of gender inequality and power relations within
families and wider society.27
23.
Violence motivated by homophobia and transphobia is often particularly brutal, and
in some instances characterized by levels of cruelty exceeding that of other hate crimes. 28
Violent acts include deep knife cuts, anal rape and genital mutilation, as well as stoning and
dismemberment.29
24.
United Nations experts have condemned the persistence of impunity for these
violations and repeatedly called for investigation, prosecution and punishment, and
reparations for victims.30 Reported shortcomings include ineffective police action, failure to
register cases, loss of documents, inappropriate classification of acts, including physical
assault as a minor offence, and investigations guided by stereotypes and prejudices. 31
25.
In most countries, the absence of effective systems for recording and reporting hatemotivated violence, or “hate crimes”, against LGBT persons masks the true extent of
violence. Where they exist, official statistics tend to understate the number of incidents. 32
Victims are often reluctant to report their experiences for fear of extortion, breach of
confidentiality or reprisals. In addition, prejudicial and inexact categorization of cases
results in misidentification, concealment and underreporting.33 Failure to investigate,
prosecute and punish violations when reported also contributes to incomplete assessments
of the scale of violence.34

B.

Killings

7
, 201

rch 2

Ma
d on

e

26.
Hate-motivated killings of LGBT individuals have archiv documented in all regions.
been
2686
13-7
The Special Rapporteur on extrajudicial, summary or arbitrary executions has noted
No.
s,
“grotesque homicides” perpetratedSession broad impunity, allegedly at times with the
with
v.
uez
“complicity of investigativeigauthorities” (A/HRC/26/36/Add.1, para. 85). Treaty bodies,
dr
s-Ro
special proceduresinga United Nations agencies continue to express alarm at such killings
Br and
d in
cit patterns of violence, including the murder of transsexual women in Uruguay 35
and related e
and of Black lesbian women in South Africa.36 In an assault in Chile, a gay man was beaten
and killed by neo-Nazis, who burned him with cigarettes and carved swastikas into his
body.37

26
27
28

29
30
31
32
33
34

35
36
37

8

See A/HRC/26/50, paras. 10, 14-15, A/HRC/28/66, para. 11.
See A/HRC/26/38/Add.1, para. 19.
See A/HRC/20/16, paras. 71-72, and “An Overview of Violence against LGBTI Persons”, annex –
press release 153/14, Inter-American Commission on Human Rights (IACHR), 2014, p. 3.
See A/HRC/26/36/Add.1, paras. 85-87.
See CCPR/C/BOL/CO/3, para. 7, A/HRC/26/36/Add.1, paras. 85-88, CAT/C/GC/3, paras. 8, 32.
See A/HRC/23/49/Add.4, para. 23, A/HRC/26/36/Add.1, para. 86.
See CCPR/C/URY/CO/5, para. 12, A/HRC/20/16, para. 71.
See A/HRC/20/16, paras. 18, 71.
See CCPR/C/GTM/CO/3, para. 11, CCPR/C/DOM/CO/5. The IACHR notes a “major
underreporting” of acts of violence against lesbians (see footnote 28, p. 4).
CCPR/C/URY/CO/5, para. 12.
See A/HRC/20/16, paras. 55, 73, CERD/C/GC/34, para. 23.
OHCHR, briefing note on Chile, 30 March 2012.

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27.
Data are patchy but, wherever available, suggest alarmingly high rates of homicidal
violence. In Brazil, one of relatively few countries where the Government publishes an
annual report on homophobic violence, the authorities documented 310 murders in 2012 in
which homophobia or transphobia was a motive. 38 The Inter-American Commission on
Human Rights reported 594 hate-related killings of LGBT persons in the 25 States
members of the Organization of American States between January 2013 and March 2014. 39
In its resolution 275, the African Commission on Human and Peoples’ Rights condemned
increasing violence and other human rights violations based on imputed or real sexual
orientation or gender identity. The European Parliament (resolution 2013/2183(INI) and the
Council of Europe (resolution 1948 (2013) have also regularly expressed their concerns.
28.
Reporting from non-governmental organizations underscores the prevalence of fatal
violence. The Trans Murder Monitoring project, which collects reports of homicides of
transgender persons in all regions, lists 1,612 murders in 62 countries between 2008 and
2014, equivalent to a killing every two days.40 The National Coalition of Anti-Violence
Programs in the United States of America reported 18 hate violence homicides and 2,001
incidents of anti-LGBT violence in the United States in 2013.41
29.
Terrorist groups may target LGBT persons for punishment, including killings. 42 In
February 2015, photos appeared to show several men, allegedly accused of homosexual
acts, being pushed off a tower to their deaths by militants of the so-called Islamic State in
Iraq and the Levant (ISIL).43
30.
LGBT persons have also been victims of so-called “honour” killings, carried out
against those seen by family or community members to have brought shame on a family,
often for transgressing gender norms or for sexual behaviour, including actual or assumed
7
, 201
homosexual conduct.44
rch 2
n Ma

ed o

hiv
6 arc

68

Other violence, including sexual violence-72
. 13
, No

C.

s
ssion

v. Se

31.
United Nations Rodriguezcontinue to express their alarm at non-lethal violence
experts
asdirected at individuals on the grounds of their sexual orientation or gender identity.
Bring
d in
Examplescite
include cases of gay men who have been kidnapped, beaten and humiliated, with
film clips of their abuse shared on social media,45 and of lesbians assaulted and raped
because of their sexual orientation.46 In the Syrian Arab Republic, there have been reports
of rape and torture of men assumed to be gay perpetrated by security agents and by nonState armed groups.47 Concerns have also been expressed about the risk to human rights
38

39
40
41

42
43
44
45
46
47

Second report on homophobic violence in Brazil (2012), Department of Human Rights, June 2013
(available at www.sdh.gov.br/noticias/2013/junho/numero-de-denuncias-de-violencia-homofobicacresceu-166-em-2012-diz-relatorio).
IACHR (see footnote 28), p. 1.
Trans Murder Monitoring results update, November 2014 (available at http://tgeu.org/tmm/).
Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected Hate Violence in 2013, National
Coalition of Anti-Violence Programs, New York, 2014 (available at http://avp.org/resources/avpresources/315).
See CRC/C/IRQ/CO/2-4, paras. 27-28.
OHCHR, press briefing notes on ISIL/Iraq, 20 January 2015.
See A/HRC/23/47/Add.2, para. 49.
A/HRC/26/50, para. 14.
See CEDAW/C/GUY/CO/7-8, para. 22, A/HRC/20/16, paras. 55, 71, 73, 76.
A/HRC/25/65, para. 67-71. Oral update of the Independent International Commission of Inquiry on
the Syrian Arab Republic, 18 March 2014.

9

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defenders working to uphold the rights of LGBT persons, some of whom have been
subjected to violence, threats and verbal denigration. 48
32.
In the United States, recent government figures show that the number of biasmotivated incidents based on sexual orientation ranks second only to racist incidents among
single-bias hate crimes.49 A Europe-wide survey of 93,000 LGBT persons conducted in
2013 for the European Union Agency for Fundamental Rights found that a quarter of all
respondents had been attacked or threatened with violence in the previous five years. 50 A
survey conducted in 2012 by the non-governmental organization Stonewall in the United
Kingdom of Great Britain and Northern Ireland found that one in six LGBT respondents
had experienced a hate crime or incident in the previous three years; of those, 75 per cent
had not reported the experience to the police.51
33.
Treaty bodies and special procedures continue to express concern at rhetoric used to
incite homophobic and transphobic hatred and related violence. 52 Such language is used by
some political and community leaders to promote negative stereotypes, stir up prejudice
and harass particular individuals, especially during electoral periods. The High
Commissioner has expressed concern at inflammatory rhetoric used in Belarus, the Gambia
and Honduras.53 The Committee on the Rights of the Child has criticized statements by the
Holy See as contributing to the stigmatization of, and violence against, LGBT adolescents
and children raised by same-sex couples,54 and about the negative impact of hate speech on
LGBT and intersex adults and children in Switzerland.55

D.

Torture and ill-treatment
017

2
34.
The Committee against Torture and the Special Rapporteur onrctorture and other
h 2,
n Maexpress concerns at
do
cruel, inhuman or degrading treatment or punishment have continued to
hive
6 arc
the torture and ill-treatment of LGBT persons in detention by or with the acquiescence of
7268
. 13State officials.56
s, No
sion
s

v. Se

35.
Reported cases includeuez arrest, beating and ill-treatment by police in Zimbabwe
drig the
s-Ro
of 44 members ofringaLGBT organization.57 Sixteen gay and transgender individuals in the
B an
in
cited
United States were allegedly subjected to solitary confinement, torture and ill-treatment,
including sexual assault, while in detention in immigration facilities. 58 A woman was
reportedly arrested in Bangladesh for being a lesbian, and subsequently beaten and raped by
police while in custody.59 In Egypt, four people arrested on the basis of their alleged sexual

48
49

50
51
52

53

54
55
56
57
58
59

10

See A/HRC/25/55/Add.3, paras. 433-435, 480-482.
Uniform Crime Reports, 2013 Hate Crime Statistics, U.S. Department of Justice, 2014 (available at
www.fbi.gov/about-us/cjis/ucr/hate-crime/2013).
EU LGBT Survey: Results at a Glance, European Union Agency for Fundamental Rights, 2013, p. 7.
Homophobic Hate Crime: the Gay British Crime Survey 2013, Stonewall, 2013, pp. 116-117.
See CCPR/C/UKR/CO/7, para. 10, A/67/357, para.75; see also European Court of Human Rights,
application 1813/07, 9 May /2012.
Navi Pillay, “Prejudice fuels the denial of rights for LGBT people”, Jakarta Post, 30 April 2014. See
A/HRC/22/47/Add.1, para. 91.
CRC/C/VAT/CO/2, para. 25.
CRC/C/CHE/CO/2-4, para. 24.
See A/HRC/19/61/Add.4, paras. 168, 172, CAT/C/KGZ/CO/2, para. 19.
A/HRC/22/53/Add.4, para. 162.
Ibid., para. 178.
See CCPR/C/108/D/2149/2012), para. 2.2.

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orientation and/or gender identity reportedly faced sexual assault by other inmates while in
detention.60
36.
The Special Rapporteur on violence against women, its causes and consequences has
highlighted similar cases, noting that those with a non-heterosexual orientation, or whose
gender expression did not fall into exact categories of female and male, were vulnerable to
targeted abuse both by staff and by other prisoners. She expressed concern about lesbian
women being placed in cells with men if they refused the sexual advances of prison staff.
Female prisoners whom guards viewed as “masculine” in appearance were subjected to
harassment, physical abuse and “forced feminization”. Transgender prisoners face
particularly harsh circumstances. In one case, in Guatemala, a transgender woman was
allegedly raped more than 80 times while in detention. 61
37.
Some States continue to subject men suspected of homosexual conduct to anal
examinations in order to “prove” their homosexuality. Such examinations have been
described as “medically worthless” and condemned by the Committee against Torture, the
Special Rapporteur on torture and the Working Group on Arbitrary Detention; all have held
that the practice contravenes the prohibition on torture and ill-treatment.62
38.
Other medical procedures that can, when forced or otherwise involuntary, breach the
prohibition on torture and ill-treatment include “conversion” therapy, sterilization, gender
reassignment, and unnecessary medical interventions involving intersex children (see paras.
14 above and 52, 53 and 70 below).

E.

Positive developments since 2011
h 2,

2017

rc
39.
States have adopted a range of measures with a view to addressing homophobic and
n Ma
ed o
rchiv the note verbale soliciting
transphobic violence, including some highlighted in responses to
a
2686
1
inputs for the present report. New or strengthened3-7
No. anti-hate crime laws have been enacted
s,
in several States, including Albania,ession Finland, Georgia, Greece, Honduras, Malta,
Chile,
v. S
uez Such laws can play an important role in facilitating the
Montenegro, Portugal and drig
Serbia.
s-Ro
prosecution and Bringa
punishment of perpetrators of hate-motivated violence and in establishing
in
cited
homophobia and transphobia as aggravating factors for the purposes of sentencing.

40.
Other notable initiatives include the establishment of specialized hate crime
prosecution units (Brazil, Honduras, Mexico, Spain), and an interagency working group on
urgent cases (Colombia); improved police training and sensitization (Canada, Denmark,
France, Montenegro, Philippines) and new policing guidelines (Spain, United Kingdom);
national hotlines to report homophobic incidents (Brazil, Netherlands) and surveys to
improve hate-crime data collection (Belgium (Flanders), Canada); a national task force on
gender- and sexual orientation-based violence (South Africa); policies and protocols for
ensuring the dignity and safety of transgender prisoners (Brazil, Canada); training materials
on the rights of LGBT prisoners (Ecuador); and investigations by the human rights
commission of allegations of torture and ill-treatment of LGBT and intersex detainees
(Nepal).

60
61
62

A/HRC/27/72, EGY 4/2014.
A/68/340, paras. 58, 59, 63.
A/HRC/22/53, paras. 76, 79.

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V. Discrimination63
41.
The Human Rights Committee and the Committee on Economic, Social and Cultural
Rights have repeatedly urged States to tackle both direct and indirect discrimination against
all persons, including LGBT and intersex persons.64 States have an obligation to ensure that
laws, policies and programmes executed by State authorities do not discriminate against
individuals. They also have an obligation to address discriminatory practices, including by
private actors, and to take action to prevent, diminish and eliminate the conditions and
attitudes that contribute to substantive or de facto discrimination.
42.
Discrimination against LGBT individuals is often exacerbated by other identity
factors, such as sex, ethnicity, age and religion, and socioeconomic factors, such as poverty
and armed conflict.65 The impact of such multiple forms of discrimination may be felt at an
individual level and a societal one, as LGBT persons, deprived of access to such basic
rights as employment, health, education and housing find themselves in poverty, cut off
from economic opportunity. 66 Studies undertaken in several countries suggest that rates of
poverty, homelessness and food insecurity are higher among LGBT individuals than in the
wider community.67 The World Bank has documented the negative impact of homophobia
on economic growth and development.68

A.

Discriminatory laws

1.

Laws criminalizing homosexuality and other laws used to penalize individuals because
of sexual orientation or gender identity
17
2, 20

43.
States that criminalize consensual homosexual acts are in n March of international
breach
do
human rights law since these laws, by their mere existence, rviolate the rights to privacy and
chive
86 a
non-discrimination. Arrests and the detention o. 1individuals on charges relating to sexual
of 3-726
N
,
orientation and gender identity – includingsoffences not directly related to sexual conduct,
sion
. Ses
ez v
uphysical appearance or so-called “public scandal” – are
such as those pertaining dto
rig
Ro
69
discriminatory and gasSince its landmark decision in Toonen v. Australia
Brin arbitrary.
d in No. 488/1992) in 1994, the Human Rights Committee and other
cite
(communication
mechanisms have repeatedly urged States to reform laws criminalizing consensual samesex conduct, and welcomed their repeal.
44.
At least 76 States retain laws that are used to criminalize and harass people on the
basis of sexual orientation and gender identity or expression, including laws criminalizing

63
64
65

66
67

68

69

12

See also A/HRC/19/41, paras. 40-47.
See E/C.12/GC/20, paras. 7-11, CCPR/C/PER/CO/5, para. 8.
See CRC/C/GC/15, para. 8, A/HRC/20/16, paras. 17, 23-27, A/HRC/26/50, para. 15,
CEDAW/C/GC/28, para. 18.
See A/HRC/27/55, paras. 64-66, E/C.12/PER/CO/2-4, para. 5.
See Lucas Paoli Itaborahy, LGBT people living in poverty in Rio de Janeiro (London, Micro
Rainbow, 2014); and Gary J. Gates, “Food Insecurity and SNAP (Food Stamps) Participation in
LGBT Communities”, Williams Institute, February 2014.
M.V. Lee Badgett, “The economic cost of stigma and the exclusion of LGBT People: a case study of
India”, World Bank Group, 2014.
See CCPR/C/BLZ/CO/1, para. 13, CCPR/C/PHL/CO/4, para. 10, CCPR/C/SLV/CO/6, para. 3(c).

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consensual, adult same-sex relationships.70 Sometimes inherited as colonial-era legislation,
these laws typically prohibit certain types of sexual activity or any intimacy between
persons of the same sex. Cross-dressing or “imitating the opposite sex” is also sometimes
penalized.71 Wording often refers to vague and undefined concepts, such as “crimes against
the order of nature” or “morality”, “debauchery”, “indecent acts” or “grave scandal”.72
Penalties include lashings, life imprisonment and the death penalty.
45.
Human rights mechanisms continue to emphasize links between criminalization and
homophobic and transphobic hate crimes, police abuse, torture, family and community
violence and stigmatization, as well as the constraints that criminalization put on the work
of human rights defenders.73 The Special Rapporteur on freedom of religion or belief has
noted that these laws may give a pretext to vigilante groups and other perpetrators of hatred
for intimidating people and committing acts of violence.74
2.

Death penalty
46.
In the Islamic Republic of Iran, Mauritania, Saudi Arabia, the Sudan and Yemen,
and in parts of Nigeria and Somalia, the death penalty may be applied in cases of
consensual homosexual conduct. Death is also the prescribed punishment for
homosexuality in the revised penal code of Brunei, although relevant provisions have yet to
take effect.
47.
The application of the death penalty in this context represents a grave violation of
human rights, including the rights to life, privacy and non-discrimination. The Human
Rights Committee and the Committee on Economic, Social and Cultural Rights have
repeatedly expressed concern about death sentences for consensual adult sexual conduct. 75
2017
The Special Rapporteur on extrajudicial, summary or arbitrary executions , has reiterated
rch 2
n Ma and that offences
o
that death sentences may only be imposed for the most seriousd crimes
chive
related to homosexual conduct and sexual relations-72686 ar consenting adults do not meet
between
o. 13
that threshold.76
ns, N
sio
. Ses
ez v
drigu
“Anti-propaganda” as-Ro
laws
Bring
d in
48.
In cite past two years, laws have been enacted or proposed in several States that seek
the

3.

to restrict public discussion of sexual orientation under the guise of “protecting minors”
from information on so-called “non-traditional sexual relations”.77 These laws, sometimes
called “anti-propaganda” laws, are often vaguely worded and arbitrarily restrict the rights to
freedom of expression and assembly. They also contribute to ongoing persecution of
members of the LGBT community, including young persons who identify or are perceived
as LGBT.78 The Special procedures mandate holders on human rights defenders, on
freedom of opinion and expression and on freedom of peaceful assembly and of association

70

71
72
73
74
75
76
77
78

Lucas Paoli Itaborahy and Jingshu Zhu, State-sponsored Homophobia, International Lesbian, Gay,
Bisexual, Transgender and Intersex Association (ILGA), Brussels, 2014), p. 21. Mozambique and
Palau have decriminalized homosexuality since the publication of the report.
See CCPR/C/KWT/CO/2, para. 30.
See CCPR/C/PHL/CO/4, para. 10, CCPR/C/ETH/CO/1, para. 12.
See A/HRC/26/29, para. 27, CCPR/C/SLE/CO/1, para. 11.
A/HRC/28/66, para. 42.
See CCPR/C/YEM/CO/5, para. 13, E/C.12/IRN/CO/2, para. 7.
See A/67/275, paras. 36-38, A/HRC/27/23, para. 28.
See CEDAW/C/KGZ/CO/4, para. 9.
See CCPR/C/106/D/1932/2010, para. 10.8, CCPR/C/LTU/CO/3, para. 8.

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have expressed concerns in this context about developments in Kyrgyzstan, Nigeria, the
Republic of Moldova, the Russian Federation, Uganda and Ukraine.79
49.
In some cases, these laws have been accompanied by bans on non-governmental
organizations receiving funding from abroad, allegedly in order to curb the influence of
“foreign agents”.80 Such measures put defenders at risk of arrest, violence and
discrimination, and can threaten rights relating to, inter alia, health, education, cultural
expression and information.81

B.

Discriminatory practices82

1.

Health care
50.
Laws criminalizing homosexuality and the discriminatory policies, practices and
attitudes of health-care institutions and personnel adversely affect the quality of health
services,83 deter individuals from seeking services,84 and may lead to the denial of care or to
an absence of services that respond to the specific health needs of LGBT and intersex
persons.85
51.
The negative health impact of laws criminalizing homosexuality has been widely
acknowledged, including by the World Health Organization (WHO), the United Nations
Development Programme (UNDP), the Joint United Nations Programme on HIV/AIDS
(UNAIDS), the treaty bodies and the special procedures of the Human Rights Council.86
The Global Commission on HIV and the Law found, for instance, that in Caribbean
countries with laws that criminalize homosexuality, almost one in four men who have sex
with men is HIV positive; the equivalent figure in Caribbean countries with 2, 2017 laws is
no such
rch
one in 15.87
n Ma
o
ived

arch

52.
There is mounting concern about so-called2686
7 “conversion therapies” intended to
. 13“cure” homosexual attraction. Such therapiesNo been found to be unethical, unscientific
ns, have
sio
. Ses
and ineffective and, in some instances, tantamount to torture – leading to successful legal
ez v
drigu
88
challenges and bans as-Ro
g in several countries. In Ecuador, concerns have been raised about
cited

79

80
81
82
83
84

85
86

87
88

14

in

in Br

See A/HRC/23/51, UKR 3/2012; A/HRC/25/74, MDA 4/2013; RUS 3/2013, RUS 4/2013;
A/HRC/26/21, NGA 1/2014, UGA 1/2014, UGA 1/2013; A/HRC/27/72, KGZ/1/2014.
A/HRC/25/74, RUS 3/2013.
See A/66/203, paras. 17-18, A/69/307, paras. 84-89.
See also A/HRC/19/41, paras. 48-73.
See CCPR/C/TUR/CO/1, para. 10, CEDAW/C/NOR/CO/8, paras. 33-34.
See CCPR/C/JAM/CO/3, paras. 8- 9, A/HRC/14/20, paras. 20-23. See also UN Free & Equal
factsheet, “Criminalization” (available at www.unfe.org/en/fact-sheets).
See A/64/272, para. 46.
See “Secretary-General, in observance message, equates fight against homophobia with struggle to
eliminate racism, promote gender equality”, press release, 16 May 2013; E/C.12/JAM/CO/3-4, para.
28; and Risks, Rights and Health, Global Commission on HIV and the Law, UNDP, 2012, in
particular pp. 44-54.
Ibid., p. 45.
See A/HRC/22/53, para. 88; Sharon Bernstein, “Supreme Court won't intervene in California ban on
gay-conversion therapy”, Reuters, 1 July 2014; and Ed Adamczyk, “Beijing court rules gayconversion clinic treatments illegal”, UPI, 19 December 2014.

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“rehabilitation clinics” where lesbians and transgender youths have been forcibly detained
with the collusion of family members and subjected to torture, including sexual abuse. 89
53.
Many intersex children, born with atypical sex characteristics, are subjected to
medically unnecessary surgery and treatment in an attempt to force their physical
appearance to align with binary sex stereotypes. Such procedures are typically irreversible
and can cause severe, long-term physical and psychological suffering. Those to have called
for an end to the practice include the Committee on the Rights of the Child, the Committee
against Torture, the special procedures mandate holders on the right to health and on
torture.90
54.
Transgender persons often face particular difficulties in their access to appropriate
health care. Health-care professionals may be insensitive to their needs, lack relevant
knowledge and treat transgender persons in a discriminatory manner. Gender reassignment
therapy, where available, is often prohibitively expensive. In certain situations, it is
coerced.91
2.

Education
55.
Many children and adolescents perceived as LGBT or gender non-conforming
experience discrimination, harassment and, in some cases, violent abuse both in and outside
of school. 92 Such abuse can force students to skip or drop out of school, and can lead to
feelings of isolation and depression, even suicide.
56.
High levels of bullying have been recorded in all regions. A European Union study
found that 80 per cent of school-age children surveyed heard negative comments or saw
negative conduct directed at schoolmates perceived as lesbian, gay, 2bisexual or
7
, 01
rch 2
transgender.93 A survey conducted by the United Nations Educational, Scientific and
n Ma
o
Cultural Organization (UNESCO) of students in Thailandchived that more than half of
ar found
2686
7month, and more than 30 per cent had
LGBT respondents had been bullied in the previous
. 13s, No
experienced physical abuse.94 These efindings mirror those of studies conducted in other
ssion
v. S
uez
countries.
odrig
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inga

in or
57.
Limiting Br obstructing information related to sexuality or using materials that
cited
contain stereotypes and prejudices can contribute to violence and expose young LGBT
persons to health risks.95 Comprehensive sexuality education is part of the right to
education and can be a tool for combating discrimination.

3.

Employment
58.
In most States, national laws do not provide adequate protection from employmentrelated discrimination on grounds of sexual orientation and gender identity. 96 In the absence
89

90

91
92
93
94

95

96

CCPR/C/ECU/CO/5, para. 12. See “IACHR expresses concern about violence and discrimination
against LGBTI persons, particularly youth, in the Americas”, press release, 15 August 2013.
See CRC/C/CHE/CO/2-4, para. 42, CAT/C/DEU/CO/5, para, 20, A/HRC/22/53, para. 88, A/64/272,
para. 49.
See A/HRC/25/61, annex II.
See E/CN.4/2001/52, para. 75, E/CN.4/2006/45, para. 113, CRC/C/RUS/CO/4-5, para. 59.
EU LGBT Survey, EU Agency for Fundamental Rights (see footnote 50), p. 12.
“Bullying targeting secondary school students who are or are perceived to be transgender or same-sex
attracted”, Mahidol University, Plan International Thailand, UNESCO, 2014, p. 14.
See CRC/C/RUS/CO/4-5, para. 55, CRC/GC/2003/4, paras. 26, 28; A/65/162, paras. 4, 6, 23, 63,
A/68/290, paras. 52, 54.
ILGA, State-sponsored Homophobia (see footnote 70), p. 21.

15

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of such laws, employers may fire or refuse to hire or promote people simply because they
are seen as lesbian, gay, bisexual or transgender.97 Where laws do exist, they may be poorly
applied. Workplace benefits available to heterosexual employees may be denied to their
LGBT counterparts. Surveys indicate that discrimination and verbal and other forms of
harassment in the workplace are commonplace. 98
4.

Housing
59.
LGBT persons may experience discrimination in access to housing as a result of
unfair treatment by public and private landlords. Concerns include LGBT individuals and
same-sex couples denied leases and evicted from public housing,99 harassed by neighbours
and forced out of their homes. 100 Many LGBT-identifying adolescents and young adults are
thrown out of home by disapproving parents and end up on the streets, resulting in
disproportionately high rates of homelessness among this group. A recent survey of 354
homeless support agencies in the United States suggested that some 40 per cent of homeless
youth identify as LGBT, with family rejection the leading cause of homelessness among
this group.101

5.

Freedom of expression, association and assembly
60.
United Nations human rights experts continue to highlight discriminatory
restrictions on the rights to freedom of expression, association and assembly of LGBT
persons and those defending their rights.102 Concerns include direct censorship, bans on
dissemination of information and restrictions on advocacy. 103
61.
LGBT organizations continue to have registration applications rejected, reviews
7
, 201
delayed and legal registration revoked on discriminatory grounds.104 Permission to hold
rch 2
n Ma suppress political
meetings, workshops and cultural events may be denied in an ived o to
attempt
arch
and artistic expression.105 Police officers have raided 2the6offices of LGBT groups, arrested
7 68
o. 13
and harassed staff and volunteers, and confiscated materials, sometimes putting the privacy
ns, N
106
essio The offices of LGBT organizations have been
and safety of staff and supportersvatSrisk.
z .
rigue
targets of vandalism, sburglary and arson,107 and such incidents are seldom investigated
-Rod
inga
promptly.108 d in Br
ite
c

97

98

99
100
101
102
103
104
105
106
107
108

16

See A/69/318, para.17; and “Discrimination at work on the basis of sexual orientation and gender
identity: Results of pilot research” (GB.319/LILS/INF/1), International Labour Office, October 2013,
pp. 2-3.
EU LGBT Survey, EU Agency for Fundamental Rights (see footnote 50), p.17; April Guasp, “Gay in
Britain: Lesbian, Gay and Bisexual People’s Experiences and Expectations of Discrimination”,
Stonewall, 2012, pp.3, 19.
See A/69/274, para. 12.
See A/HRC/19/53, paras. 50, 51, 63.
See “Serving Our Youth”, Williams Institute, True Colors Fund and the Palette Fund, 2012, p. 3.
See CCPR/C/GEO/CO/4, para. 8, A/HRC/26/30/Add.2, para. 77.
See A/HRC/20/22/Add.2, para. 55, A/64/211, paras. 21-27.
See A/69/307, para. 30.
See A/HRC/23/34/Add.1, paras. 101-103.
See A/HRC/22/53/Add.4, para. 162.
A/HRC/25/74, MKD 2/2013; A/HRC/23/51, CRI 2/2012.
See A/69/307, para. 86, A/HRC/22/53/Add. 4, para. 162, A/HRC/25/71, para. 55, A/HRC/26/52, para.
33.

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62.
Private and State agents target “pride” marches, where LGBT persons and their
supporters are sometimes subjected to violence and harassment.109 In some States, such
events are denied police protection or permits, sometimes under guise of threats to public
morals or safety, abrogating the State’s duty to uphold freedom of assembly and to protect
LGBT persons from violence.110 In the absence of proper police protection, marchers have
been physically attacked and harassed by State and non-State actors, including far-right
“skinhead” groups.111
63.
Women defenders and those advocating for gender- and sexuality-related rights are
often at particular risk because they are seen as challenging traditional assumptions about
the role and status of women in society.112
6.

Asylum and migration
64.
Asylum and migration policies in this context vary considerably. The Office of the
United Nations High Commissioner for Refugees (UNHCR) estimates that some 42 States
have granted asylum to individuals with a well-founded fear of persecution owing to sexual
orientation or gender identity. At international borders, migrants and refugees may be
subjected to invasive physical screenings and examinations and denied entry on
discriminatory grounds.113
65.
Practices in States granting asylum sometimes fall short of international standards.
Officials may be insensitive to the conditions facing LGBT asylum-seekers, and review of
applications is sometimes arbitrary and inconsistent. 114 In its judgement of 2 December
2014, the Court of Justice of the European Union ordered States to cease use of intrusive
questioning and medical tests purportedly designed to reveal applicants’ sexual orientation.
7
, 201
Refugees and migrants are sometimes subjected to violence and discrimination while in
rch 2
115
n Ma
detention facilities, and when resettled, may be housed within communities where they
do
hive
6 arc
experience additional sexuality- and gender-related 6risks. The refoulement of asylum
72 8
o. 3
seekers fleeing such persecution exposes sthem1 to the risk of violence, discrimination,
n ,N
116
essio
.S
criminalization and the death penalty.
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66.
States’ responsibility to protect individuals from discrimination extends to the
family sphere, where rejection and discriminatory treatment of and violence against LGBT
and intersex family members can have serious, negative consequences for the enjoyment of
human rights. Examples include individuals being physically assaulted, raped, excluded
from family homes, disinherited, prevented from going to school, sent to psychiatric
institutions, forced to marry, forced to give up custody of their children, punished for
activist work and subjected to attacks on personal reputation. In States where
homosexuality is criminalized, victims may be reluctant to report violence perpetrated by a
109
110
111

112

113
114
115
116

See A/HRC/23/34, paras. 49-50, A/HRC/26/36/Add.2, paras. 43-45.
CCPR/C/109/D/1873/2009, para. 9.6, A/HRC/23/49/Add.4, para. 22.
See A/HRC/10/12/Add.1, paras. 275-280, A/HRC/11/4/Add.1, paras. 289-2294, A/HRC/16/44/Add.1,
paras. 1157–1164.
See A/HRC/22/47/Add.1, para. 88, and “Study on the situation of women human rights defenders in
Africa”, Special Rapporteur on human rights defenders, African Commission on Human and Peoples’
Rights, 2015.
A/69/CRP.1, p. 15.
UNHCR, HCR/GIP/12/09 (see footnote 8).
See A/HRC/22/53/Add.4, para. 178.
See CCPR/C/108/D/2149/2012, para 2.4, CCPR/C/103/D/1833/2008, para. 9.2.

17

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family member for fear of the criminal ramifications of revealing their sexual orientation.
Lesbians, bisexual women and transgender persons are often especially at risk owing to
gender inequalities and restrictions on autonomy in decision-making about sexuality,
reproduction and family life.117
8.

Recognition of relationships and related access to State and other benefits
67.
While States are not required under international law to recognize same-sex
marriage,118 the Committee on Economic, Social and Cultural Rights has called upon States
to provide for legal recognition of same-sex couples.119 As at April 2015, 34 States offered
same-sex couples either marriage or civil unions, which bestow many of the same benefits
and entitlements as marriage.120 Wherever States provide benefits such as pension and
inheritance entitlements for unmarried heterosexual couples, the same benefits should be
available to unmarried homosexual couples.121
68.
Lack of official recognition of same-sex relationships and absence of legal
prohibition on discrimination can result in same-sex partners being treated unfairly by
private actors, including health-care providers and insurance companies. The United
Nations Children’s Fund (UNICEF), the Committee on the Rights of the Child and the
Inter-American Court of Human Rights have expressed concern at discrimination against,
and the lack of legal protection of, children of same-sex couples.122

9.

Gender recognition and related issues
69.
In spite of recent advances in several countries, transgender persons are generally
still unable to obtain legal recognition of their preferred gender, including a change in
7
recorded sex and first name on State-issued identity documents. As rch 2, 201 they face
a result,
n Ma
multiple rights challenges, including in employment and housing, o
d applying for bank credit
hive
6 arc
or State benefits, or when travelling abroad.
7268
. 13

, No

70.
Regulations in States that Sessions changes in gender often impose abusive
recognize
.
requirements as a precondition ez v
drigu of recognition – for example, by requiring that applicants be
o
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unmarried and undergo- forced sterilization, forced gender reassignment and other medical
Bring
d in
cit
procedures,ein violation of international human rights standards. 123

117

118
119
120
121

122

123

18

See A/68/290, para. 38, A/HRC/20/16/Add.4, para. 20, A/HRC/22/56, para. 70, A/HRC/26/38/Add.1,
para. 19.
See CCPR/C/75/D/902/1999.
E/C.12/BGR/CO/4-5, para17; E/C.12/SVK/CO/2, para. 10.
ILGA, State-sponsored Homophobia (see footnote 70), pp. 26-28.
See CCPR/C/CHN/HKG/CO/3, para. 23, CCPR/C/78/D/941/2000, para. 10.4,
CEDAW/C/SRB/CO/2-3, para. 39(d); also European Court of Human Rights, applications 29381/09
and 32684/09, 7 November 2013, paras. 79-81.
See CRC/C/GC/15, para.8 and CRC/C/GAM/CO/2-3, paras. 29-30; and “Eliminating discrimination
against children and parents based on sexual orientation and/or gender identity”, UNICEF, position
paper no.9, 2014, and Inter-American Court of Human Rights, Atala Riffo and daughters v. Chile, 24
February 2012.
See CCPR/C/IRL/CO/4, para. 7, CCPR/C/UKR/CO/7, para. 10, A/HRC/22/53, para. 88; also
“Eliminating forced, coercive and otherwise involuntary sterilization: an interagency statement”,
OHCHR, UN-Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, 2014.

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C.

Positive developments since 2011
71.
Three States (Mozambique, Palau and Sao Tome and Principe) have decriminalized
consensual same-sex conduct, and several others have accepted recommendations to do so.
The United Kingdom and several states in Australia have adopted measures to expunge the
criminal records of individuals convicted of consensual homosexuality-related offences.
72.
Fiji has added an anti-discrimination clause in its Constitution prohibiting
discrimination based on sexual orientation, gender identity and gender expression, and
Malta has added gender identity to the list of prohibited grounds of discrimination included
in its Constitution. Anti-discrimination laws have also been strengthened in several States,
including Chile, Cuba, Georgia, the Republic of Moldova, Montenegro, as well as in
Australia and Malta, which became the first countries to expressly prohibit discrimination
against intersex persons.
73.
Legal recognition of same-sex relationships was introduced in at least 12 additional
States, either in the form of civil marriage (Brazil, Denmark, France, Luxembourg, New
Zealand, United Kingdom, Uruguay) or civil unions (Chile, Croatia, Ireland, Liechtenstein,
Malta). Argentina, Denmark and Malta established new laws that allow transgender persons
to obtain legal recognition of their gender identity on the basis of self-determination, while
Australia (Australian Capital Territory), the Netherlands and Sweden removed abusive
sterilization, forced treatment and divorce requirements. Argentina furthermore established
access to free gender-affirming treatment for those who wish to receive such treatment.
Nepal and Bangladesh created a legal “third gender” category, and new passport policies in
Australia and New Zealand allow individuals to choose male, female or indeterminate
gender markers. The Supreme Court of India affirmed the right of transgender 1persons to
20 7
h 2,
determine their own gender, and called upon the Government toon Marc equal rights for
ensure
ed
transgender persons, including in access to health care, 6 archiv
employment and education. Malta
7268 or treatment on intersex minors
became the first State to prohibit sex-assignment 3. 1 surgery
s, No
without their informed consent. . Session
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od
74.
Other initiatives Rinclude the development of a new judicial protocol to guide
asBring
in
adjudication dof cases involving human rights violations on grounds of sexual orientation
cite
and gender identity (Mexico); implementation of employment-related anti-discrimination
protections (Bolivia (Plurinational State of), Botswana); new guidance materials and
training for police, teachers and/or other officials (Canada, Colombia, Croatia, Denmark,
Montenegro, Norway, Mexico, Serbia, Spain); expansion of anti-bullying programmes and
other anti-discrimination measures in schools (Albania, Australia, Brazil, Canada, Taiwan
province of China, Ireland, Portugal, Sweden, United Kingdom), and annual reporting on
discrimination and violence in schools (Brazil); LGBT suicide prevention programmes
(Belgium, Japan, United Kingdom); a human rights-based comprehensive sexuality
education curriculum for schools (South Africa); scholarships for transgender persons who
enrol in vocational training (Brazil); construction of homeless shelters for LGBT youth
(Albania, United States); and no longer requiring external corroboration of sexual
orientation or gender identity for LGBT asylum-seekers (Italy, Portugal).

75.
National plans of action were developed to tackle discrimination against LGBT
persons in Brazil, Canada (Quebec), France, Norway, South Africa and the United
Kingdom, and, in Uruguay, a plan to combat the social exclusion of transgender persons.
Several States also launched national public education campaigns to counter homophobia
and transphobia (Argentina, Australia, Belgium (Flanders), Brazil, Colombia, Cuba,
Montenegro, Serbia, South Africa, United Kingdom, Uruguay). Mexico has officially
designated 17 May as the National Day against Homophobia.

19

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VI.

Conclusions and recommendations
76.
The present study is the second on violence and discrimination based on sexual
orientation and gender identity requested by the Human Rights Council. While some
progress has been made since the first study in 2011, the overall picture remains one
of continuing, pervasive, violent abuse, harassment and discrimination affecting
LGBT and intersex persons in all regions. These constitute serious human rights
violations, often perpetrated with impunity, indicating that current arrangements to
protect the human rights of LGBT and intersex persons are inadequate. There is as
yet no dedicated human rights mechanism at the international level that has a
systematic and comprehensive approach to the human rights situation of LGBT and
intersex persons.
77.
The recommendations below describe measures to protect individuals from the
kinds of human rights violations documented above. They draw from good practices
observed in the course of compiling the report and recommendations of United
Nations human rights mechanisms.

A.

States
78.

The High Commissioner recommends that States address violence by:

(a)
Enacting hate crime laws that establish homophobia and transphobia as
aggravating factors for purposes of sentencing;
7

, 20
(b)
Conducting prompt, thorough investigations of incidents1 of haterch 2
n Ma perpetrators to
o
motivated violence against and torture of LGBT persons, dholding
hive
6 arc
account, and providing redress to victims;
7268
. 13

, No

s
(c)
Collecting and publishingndata on the number and types of incidents,
ssio
v. Se
uez of those reporting;
while providing for the security
odrig
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in Br
(d) ited Prohibiting incitement of hatred and violence on the grounds of sexual
c
orientation and gender identity, and holding to account those responsible for related
hate speech;

(e)
Training law enforcement personnel and judges in gender-sensitive
approaches to addressing violations related to sexual orientation and gender identity;
(f)
Ensuring that police and prison officers are trained to protect the safety
of LGBT detainees, and holding to account State officials involved or complicit in
incidents of violence;
(g)
Banning “conversion” therapy, involuntary
sterilization and forced genital and anal examinations;
(h)

treatment,

forced

Prohibiting medically unnecessary procedures on intersex children;

(i)
Ensuring that no one fleeing persecution on grounds of sexual
orientation or gender identity is returned to a territory where his or her life or
freedom would be threatened, that asylum laws and policies recognize that
persecution on account of sexual orientation or gender identity may be a valid basis
for an asylum claim; and eliminating intrusive, inappropriate questioning on asylum
applicants’ sexual histories, and sensitizing refugee and asylum personnel.
79.

20

States should address discrimination by:

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(a)
Revising criminal laws to remove offences relating to consensual samesex conduct and other offences used to arrest and punish persons on the basis of their
sexual orientation and gender identity or expression; ordering an immediate
moratorium on related prosecution; and expunging the criminal records of
individuals convicted of such offences;
(b)
Repealing so-called “anti-propaganda” and other laws that impose
discriminatory restrictions on freedom of expression, association and assembly;
(c)
Ensuring that anti-discrimination legislation includes sexual orientation
and gender identity among prohibited grounds, and also protects intersex persons
from discrimination;
(d)
Integrating analysis of violations based on sexual orientation and gender
identity in national plans of action, thereby ensuring coordination and adequate
resourcing of related activities, accountability for perpetrators, and redress for
victims;
(e)
Sensitizing health-care workers to the health needs of LGBT and
intersex persons, including in the areas of sexual and reproductive health and rights,
suicide prevention, HIV/AIDS and trauma counselling;
(f)
Establishing national standards on non-discrimination in education;
developing anti-bullying programmes and establishing helplines and other services to
support LGBT and gender-non-conforming youth; and providing comprehensive,
age-appropriate sexuality education;
(g)
Ensuring that housing policies do not discriminate against tenants based
17
2, 20
on sexual orientation and gender identity; and establishingon March for homeless
shelters
ived
LGBT persons, with specific attention to youth, older6persons and those in emergency
arch
7268
situations;
o. 13
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sion

(h)
Providing legal ez v. Ses
recognition to same-sex couples and their children,
u
ensuring that benefits odrig
-R traditionally accorded married partners – including those
s
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in Br
related toitbenefits, pensions, and taxation and inheritance – are accorded on a nonc ed
discriminatory basis;
(i)
Issuing legal identity documents, upon request, that reflect preferred
gender, eliminating abusive preconditions, such as sterilization, forced treatment and
divorce;
(j)
Supporting public education campaigns to counter homophobic and
transphobic attitudes, and addressing negative, stereotypical portrayals of LGBT
persons in the media;
(k)
Ensuring that LGBT and intersex persons and organizations are
consulted with regard to legislation and policies that have an impact on their rights.

B.

National human rights institutions
80.
The High Commissioner recommends that national human rights institutions
address violence and discrimination against LGBT and intersex persons in the context
of their respective mandates to promote and monitor effective implementation of
international human rights standards at the national level.

21

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C.

Human Rights Council
81.
As the intergovernmental body with responsibility for promoting and
protecting human rights worldwide, the Human Rights Council should keep itself
regularly informed of patterns of violence and discrimination linked to sexual
orientation and gender identity, as well as emerging State responses. To this end,
OHCHR stands ready to submit further reports upon request, and current special
procedures mandate holders should be encouraged to continue to report on related
violations within their respective mandates.

7
, 201

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Participant Workbook

Lesson Plan Overview
Course

Asylum Officer Basic Training Course

Lesson

Guidelines for Children’s Asylum Claims

Rev. Date

September 1, 2009

Lesson Description

This lesson introduces, and is based on, the Guidelines for Children’s
Asylum Claims, issued by the former INS in 1998. Issues addressed
include interviewing and procedural considerations when working with
child asylum applicants, as well as considerations for the legal analysis
of their claims.

Field Performance
Objective

Given a request for asylum from a child to adjudicate, the asylum officer
will correctly apply the law to determine eligibility for asylum in the
United States.

Academy Training
Performance Objective

Given written scenarios involving child asylum applicants, the trainee
will determine the proper handling of the situation in 17
accordance with all
, 20
laws, policies, and USCIS guidance and training standards.
rch 2
Ma
n

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rchiv

6a
7268

1. Summarize the developments in international law that focus on the
. 13, No
rights of children sand child asylum-seekers.
ssion
v. Se
ue
2. Identifyzinter-cultural factors that may hinder an interview of a child
odrig
as-R
Bring asylum-seeker.
ed in
cit
3. List the steps that an asylum officer can take to ease the task of
interviewing a child applicant.
4. List child-sensitive questioning and listening techniques that aid in
eliciting information from children.
5. Describe questions to ask concerning a child’s care and custody and
parental knowledge of or consent to the asylum application, and be
familiar with the proper use of such information in the adjudication.
6. Define an unaccompanied minor and legal guardianship for RAPS
purposes.
7. Describe how persecution must be analyzed when looking at a claim
of a child asylum-seeker.
8. Identify issues of nexus that can complicate the analysis of a child’s
claim to asylum.
9. Identify factors to consider when evaluating evidence presented by
child asylum applicants.

Interim (Training)
Performance Objectives

Instructional Methods

Lecture, class discussion, visual aids, practical exercises.

Student Materials /
References

Participant Workbooks; UNHCR Handbook; Matter of S-M-J-, 21 I&N
Dec. 722 (BIA 1997); Matter of A-K-, 24 I&N Dec. 275 (BIA 2007);
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007); Jorge-Tzoc

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

1

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v. Gonzales, 435 F.3d 146 (2d Cir. 2006); Abay v. Ashcroft, 368 F.3d 634
(6th Cir. 2004); Liu v. Ashcroft, 380 F.3d 307 (7th Cir. 2004); Salaam v.
INS, 229 F.3d 1234 (9th Cir. 2000); Gonzalez v. Reno, 212 F.3d 1338
(11th Cir. 2000); Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985).
Method of Evaluation

Written test

Background Reading

1. Ajdukovic, Marina, and Dean Ajdukovic. “Psychological WellBeing of Refugee Children,” Child Abuse & Neglect (Vol. 17, 1993)
p. 843-854. (attached)
2. American Bar Association. Standards for the Custody, Placement
and Care; Legal Representation; and Adjudication of
Unaccompanied Alien Children in the United States. (August 2004)
pp. 111 [Internet],
http://www.abanet.org/publicserv/immigration/Immigrant_Childrens
_Standards.pdf.
3. Bhabha, Jacqueline and Susan Schmidt. Seeking Asylum Alone:
Unaccompanied and Separated Children and Refugee Protection in
the U.S.. June 2006. 18-23; 108-137; 143-145; 188-191. (attached)
7

, 201

2
a h
4. Bhabha, Jacqueline and Wendy A. Young.rc“Through a Child’s Eyes:
on M
d
Protecting the Most Vulnerablerchive
6 a Asylum Seekers,” Interpreter
7268
. 3Releases (Vol. 75,, No.121, 1 June 1998) p. 757-773. (attached)
s No
v.
guez

cited

in

ion

Sess

ri
5. sCarr, Bridgette A. “Eliminating Hobson’s Choice by Incorporating a
-Rod
‘Best Interests of the Child’ Approach into Immigration Law and
Procedure,” Yale Human Rights and Development Law Journal
(summer 2009) [Internet], http://ssrn.com/abstract=1283842.

a
Bring

6. Convention on the Rights of the Child. G.A.Res 44/25,
U.N.G.A.O.R., Nov. 20, 1989 [Internet],
http://www.unhchr.ch/html/menu2/6/crc/treaties/crc.htm. (attached)
7. Cooper, Bo. General Counsel, INS. Elian Gonzalez, Memorandum
for Doris Meissner, Commissioner (Washington, DC: 3 January
2000), 11 pp. plus attachment.
8. Joseph E. Langlois. USCIS Asylum Division. Implementation of
Statutory Change Providing USCIS with Initial Jurisdiction over
Asylum Applications Filed by Unaccompanied Alien Children,
Memorandum. (Washington, DC: 25 March 2009), 7 pp. (attached)
9. Langlois, Joseph. Asylum Division Chief, USCIS. Updated
Procedures for Minor Principal Applicant Claims, Including
Changes to RAPS, Memorandum for Asylum Office Directors, etc.
(Washington, DC: 14 August 2007), 9 pp. (attached)
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

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10. Langlois, Joseph E. INS Asylum Division. H.R. 1209 – Child Status
Protection Act, Memorandum to Asylum Office Directors, et. al.
(Washington, DC: 7 August 2002), 2 pp. plus attachment. (attached)
11. Lutheran Immigration and Refugee Service. Working with Refugee
and Immigrant Children: Issues of Culture, Law & Development
(June 1998), 84 pp.
12. National Organization for Victim Assistance. “Children’s Reaction
to Trauma and Some Coping Strategies for Children,” Issues of War
Trauma and Working with Refugees: A Compilation of Resources,
ed. Susan D. Somach (Washington, DC: Center for Applied
Linguistics, 1995) reprinted in Lutheran Immigration and Refugee
Service. Working with Refugee and Immigrant Children: Issues of
Culture, Law & Development (June 1998), pp. 65-67. (attached)
13. Neal, David L. Chief Immigration Judge, Executive Office for
Immigration Review. Operating Policies and Procedures
Memorandum 07-01: Guidelines for Immigration Court Cases
Involving Unaccompanied Alien Children, Memorandum for All
Immigration Judges, etc. Washington, DC: 22 May 2007. 11 pp.
2017
h 2,
(attached)
Marc
on
d

hive

6 arc

268
13-7

.
14. Nugent, Christopher oand Steven Schulman. “Giving Voice To The
ns, N
Vulnerable: essioRepresenting Detained Immigrant And Refugee
S On
z v.
rigue
-Rod
sChildren,” Interpreter Releases (Vol. 78, No. 39, 8 October 2001)
inga
in Br
pp.1569-1591. (attached)
cited

15. Office of Refugee Resettlement, Office of Health and Human
Services. Unaccompanied Minors Program [Internet],
http://www.acf.hhs.gov/programs/orr/programs/unaccompanied_refu
gee_minors.htm, 2 pp.
16. Perry, Nancy W. and Larry L. Teply. “Interviewing, Counseling, and
In-Court Examination of Children: Practical Approaches for
Attorneys,” Creighton Law Review (vol. 18, 1985) p. 1369-1426,
reprinted in Jean Koh Peters. Representing Children in Child
Protective Proceedings: Ethical and Practical Dimensions
(Charlottesville, Virginia: Lexis, 1997), pp. 577-634.
17. Peters, Jean Koh. Representing Children in Child Protective
Proceedings: Ethical and Practical Dimensions (Charlottesville,
Virginia: Lexis, 1997), 917 pp.
18. Pfefferbaum, Betty, M.D., J.D. “Posttraumatic Stress Disorder in
Children: A Review of the Past 10 Years,” Journal of the American
Academy of Child and Adolescent Psychiatry (Vol. 36, No. 11,
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

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November 1997) pp. 1503-1511. (attached)
19. Symposium: Child Abuse, Psychological Research On Children As
Witnesses: Practical Implications Forensic Interviews And Courtroom
Testimony, 28 PAC. L.J. 3 (1996), 92 pp.
20. UNHCR. Guidelines on Determining the Best Interests of the Child
(2008).
21. UNHCR. Guidelines on Policies and Procedures in Dealing With
Unaccompanied Children Seeking Asylum (1997).
22. UNHCR. Refugee Children: Guidelines on Protection and Care
(Geneva: 1994).

23. UNHCR. Trends in Unaccompanied and Separated Children
Seeking Asylum in Industrialized Countries, 2001-2003 (Geneva:
July 2004), 14 pp.
24. Walker, Anne Graffam. “Introduction,” Handbook on Questioning
Children: A Linguistic Perspective (Washington, DC: ABA Center
on Children and the Law, 199), reprinted in Jean0Koh Peters.
2 17
h 2,
Representing Children in Child ProtectiveaProceedings: Ethical and
M rc
n
ed o
rchiv
Practical Dimensions (Charlottesville, Virginia: Lexis, 1997), pp. 63586 a
-726
o. 13
647.
ns, N
z v.

in
cited

ue
odrig

io

Sess

25.sWalker, Anne Graffam. “Suggestions for Questioning Children,”
a -R
Handbook on Questioning Children: A Linguistic Perspective
(Washington, DC: ABA Center on Children and the Law, 1994), pp.
95-98 reprinted in Lutheran Immigration and Refugee Service.
Working with Refugee and Immigrant Children: Issues of Culture,
Law & Development (June 1998), pp. 63-64. (attached)

Bring

26. Weiss, Jeff. INS Office of International Affairs. Guidelines for
Children’s Asylum Claims, Memorandum to Asylum Officers,
Immigration Officers, and Headquarters Coordinators (Asylum and
Refugees) (Washington, DC: 10 December 1998), 30 pp. (attached)
27. William R. Yates. Assoc. Director for Operations, US Citizenship
and Immigration Services. The Child Status Protection Act –
Children of Asylees and Refugees, Memorandum to Regional
Directors, et al. (Washington, DC: 17 August 2004), 4 pp., plus
attachments. (attached)

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

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CRITICAL TASKS
SOURCE:
Task/
Skill #
001
012
016
017
019
020
021
024
041
SS 7
SS 10
SS 13
SS 15
SS 19

Asylum Officer Validation of Basic Training Final Report (Phase One), Oct. 2001
Task Description

Read and apply all relevant laws, regulations, procedures, and policy guidance.
Identify issues of claim.
Advise all parties of their roles and responsibilities.
Identify all persons present at interview.
Request/accept additional evidence.
Conduct non-adversarial interview.
Determine credibility of applicant and materiality to claim.
Determine if applicant is a refugee.
Follow all service policies and procedures for special applicants, including minors, VWP,
individuals 75 years of age and older, etc.
Ability to interpret cross-cultural behavior and respond appropriately.
Ability to lead/direct/organize and control the interview process.
Ability to analyze complex issues.
Ability to work effectively with interpreters.
Maintain current working knowledge of relevant laws, regulations, procedures, policies, and
7
, 201
country conditions information.
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US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

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TABLE OF CONTENTS
I.

INTRODUCTION .......................................................................................................................... 7

II.

INTERNATIONAL GUIDANCE ................................................................................................. 8
A. The Universal Declaration of Human Rights........................................................................... 8
B. Convention on the Rights of the Child .................................................................................... 8
C. UNHCR ExCom Conclusion No. 47 ....................................................................................... 9
D. UNHCR ExCom Conclusion No. 59 ..................................................................................... 10
E. UNHCR ExCom Conclusion No. 107………………………………………………………10
F. UNHCR Policies and Guidelines........................................................................................... 10
G. Canadian Guidelines………………………………………………………………………...12

III. CHILD DEVELOPMENT .......................................................................................................... 13
A. Development .......................................................................................................................... 13
B. Preconceptions ....................................................................................................................... 14
IV. PROCEDURAL CONSIDERATIONS ...................................................................................... 15
A. Asylum Officers..................................................................................................................... 15
B. Interview Scheduling ............................................................................................................. 15
C. USCIS Initial Jurisdiction for Unaccompanied Alien Children's Asylum Cases………… 16
D. Minor Principal and Unaccompanied Minor Fields in RAPS……...………………………..16
2017
E. Submission of Juvenile Cases to HQASM for Quality AssurancecReview…………………17
h 2,
Mar
on
F. Determining Capacity to Apply for Asylum.......................................................................... 18
ived
arch
86 ............................................................. 19
G. Conflicts Between the Child's and Parents' Interests
26
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V.

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INTERVIEW CONSIDERATIONS........................................................................................... 19
rigue
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s-Adult................................................................................................... 19
A. Presence of a Trusted
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B. Interview cQuestions Concerning Guardianship and Parental Knowledge and Consent…….20
C. General Interview Considerations.......................................................................................... 21
D. Child-Sensitive Questioning and Listening Techniques........................................................ 25
E. Credibility Considerations During the Interview................................................................... 31
F. Evidence…………………………………………….……………………………………….34

VI. LEGAL ANALYSIS OF CLAIMS ............................................................................................. 35
A. Introduction............................................................................................................................ 35
B. Persecution............................................................................................................................. 36
C. Well-Founded Fear of Future Persecution…………………………………………………..40
D. Nexus ..................................................................................................................................... 42
E. Child-Specific Considerations Concerning Bars ................................................................... 45
VII. DERIVATIVE ASYLUM STATUS FOR CHILDREN ........................................................... 48
A. Derivative Status versus Independent Claim………………………………………………..48
B. Children Who Turn 21 Years of Age Before the Asylum Interview..................................... 48
C. Children Who Turn 21 Years of Age Before Adjustment ..................................................... 49
VIII. OTHER IMMIGRATION STATUSES AVAILABLE TO CHILDREN………………… 50
IX. SUMMARY................................................................................................................................... 51
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Presentation
I.

References

INTRODUCTION
The purpose of this lesson is to familiarize the student with the
Guidelines for Children’s Asylum Claims regarding the adjudication
of asylum claims filed by applicants under eighteen years of age. The
lesson will cover the international guidance that bears on this issue,
the procedural adjustments asylum officers must make when
interviewing children, and the legal issues that must be considered
when analyzing cases and making asylum determinations.
See Weiss, Jeff. INS

The majority of the content of this lesson derives from the
Office of International
Immigration and Naturalization Service (INS) memorandum
Affairs. Guidelines for
Guidelines for Children’s Asylum Claims. All asylum officers should Children’s Asylum Claims,
Memorandum to Asylum
be familiar with its content as the memorandum continues to provide
Officers, Immigration
valuable guidance when interviewing children. Keeping in mind that
Officers, and Headquarters
any memorandum is static by nature and that changes in regulations
Coordinators (Asylum and
and caselaw in the years after a memorandum’s issuance may
2017
2,Refugees) (Washington,
supersede its legal guidance, officers should not rely solely on then March DC: 10 December 1998),
o
ved
sections of the Children’s Guidelines on legal analysis686 archi
when
30 pp.
-72
adjudicating a child’s claim. The Asylum ons, No. 13 memorandum
Division
i
Sess
Updated Procedures for Minor Principal Applicant Claims, Including See Langlois, Joseph E.
z v.
igue
o r
USCIS Asylum Division.
Changes to RAPS provides -andadditional resource on procedures
as R
Bring
Updated Procedures for
n
asylum officerscimust follow in cases involving minor principal
ted i
Minor Principal Applicant
applicants.
Claims, Including Changes
During the last twenty years, the topic of child asylum seekers has
drawn increasing attention from the international community. Human
rights violations against children take a number of forms, such as
abusive child labor practices, trafficking in children, rape, and forced
prostitution. In violation of current international standards that
establish a minimum age for participation in armed conflicts, children
under age eighteen are forcibly recruited by state-sanctioned armies or
private militias to participate in military combat in some countries.

to RAPS, Memorandum to
Asylum Office Directors, et
al. (Washington, DC: 14
August 2007), 9 pp.

The unique vulnerability and circumstances of children and the
increasing interest in children requesting asylum demanded that the
INS issue guidance relating to young asylum seekers. On Human
Rights Day 1998, the INS issued its Guidelines for Children’s Asylum
Claims (or “Children’s Guidelines”) which address child-sensitive
interview procedures and legal analysis of the issues that commonly
arise in such cases.
The Children’s Guidelines resulted from a collaborative effort of the
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INS and interested US governmental and non-governmental
organizations (NGOs), individuals, and the UNHCR. The Women’s
Commission for Refugee Women and Children was instrumental in
the development of the guidance.
II.

INTERNATIONAL GUIDANCE
As the issue of children as asylum-seekers has moved only relatively
recently into the forefront of immigration law, relevant US caselaw is
somewhat scarce. In the absence of caselaw, or when caselaw does not
specifically address an issue, international instruments can provide
helpful guidance and context on human rights norms.
The following international instruments and documents contain
provisions specifically relating to children. They recognize and promote
the principle that children’s rights are universal human rights.
A.

In addition to the sources
cited below, the
information in this section
of the lesson derives from
section I., Background and
International Guidance, of
the Children’s Guidelines.
See lesson, International
Human Rights Law.

The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted Universal Declaration of
Human Rights. G.A. Res.
by the United Nations (U.N.) General Assembly on December 10,
217(a)(III), U.N. GAOR,
201
1948. The Declaration sets forth a collective understanding of the rch 2,Dec.710, 1948.
Ma
rights that are fundamental to the dignity and developmenteofon
iv d
arch
every human being. Most relevant to the task1before6asylum
For more on the United
7268
. 3Nations and the United
officers are Article 14, which providesofor No right to apply for
ns, the
i
Sess
Nations High
z v. refers to the special care and
asylum, and Article 25(2), rwhich
igue
Rod
Commissioner for
s-children. The rights contained in the
a
assistance requirednfor
Bri g
Refugees, see lessons,
ed in
cit
UDHR have been expanded upon in international covenants and
Introduction to UNHCR
elsewhere, including the International Covenant on Civil and
and International Human
Political Rights, to which the United States is a Party.
Rights Law.

B.

Convention on the Rights of the Child
Many of the components of international policy regarding refugee
children derive from the U.N. Convention on the Rights of the
Child (CRC). Adopted by the U.N. in November 1989, the CRC
codifies standards for the rights of all children, including those
who are refugees. Article 3(1) of the CRC provides that “the ‘best
interests of the child’ should be the primary consideration” in all
actions involving children. The “best interests of the child”
principle holds that the State is ultimately responsible for ensuring
that the basic needs of children are met and that the fundamental
rights of children are protected. The internationally recognized
“best interests of the child” principle is a useful measure for
determining appropriate interview procedures for child asylum
seekers, but it does not play a role in determining substantive
eligibility under the U.S. refugee definition. Additionally, under
Article 12(1), children’s viewpoints should be considered in an

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Convention on the Rights of
the Child (CRC). G.A.
Res. 44/25, U.N. G.A.O.R.,
Nov. 20, 1989.
http://www.unhchr.ch/html/
menu2/6/crc/treaties/crc.htm

CRC, Article 3.

CRC, Article 12.

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age and maturity-appropriate manner.
Because the United States has signed but not ratified the CRC, its
provisions, including those noted above, provide guidance only
and are not binding on adjudicators. However, having signed the
CRC, the United States is obliged under international treaty law to
refrain from acts that would defeat the object and purpose of the
Convention.
On December 23, 2002, the U.S. ratified the Optional Protocol to
the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography. The Optional
Protocol calls for States Party to prohibit and create criminal
penalties for the sale of children, child prostitution, and child
pornography.

Vienna Convention on the
Law of Treaties, Art. 18(a),
signed May 23, 1969,
entered into force January
27, 1980.

Optional Protocol to the
Convention on the Rights
of the Child on the sale of
children, child prostitution
and child pornography,
G.A. Res. 54/263, U.N.
GAOR, May 25, 2000.
http://www.unhchr.ch/html/
menu2/6/crc/treaties/opsc.h
tm

Additionally, the United States ratified the Optional Protocol to the
Convention on the Rights of the Child on the involvement of
children in armed conflict on January 23, 2003. Among other
Optional Protocol to the
things, the Optional Protocol calls for State Parties to ensure that
Convention on the Rights
children under eighteen years of age do not take a direct part in
of the Child on the
hostilities, sets out safeguards for those under eighteen years of age involvement of children in
7
, 201
who are voluntarily recruited into their nation’s armed forces,on March 2 armed conflict, G.A. Res.
and
d
hi e
prohibits non-governmental armed groups from recruitingvor using 54/263, U.N. GAOR, May
6 arc
7268
. 13
persons under eighteen years of age as soldiers. - In 2008, the Child 25, 2000.
s, No
sion
http://www.ohchr.org/engl
sU.S. law, providing criminal
Soldiers Accountability Act became
Se
z v.
ish/law/crc-conflict.htm;
igueindividuals who recruit or use child
d
and immigration penalties rfor
s-Ro
inga
Child Soldiers
soldiers. cited in Br
Accountability Act of
2008 (CSAA), P.L. 110340 (Oct. 3, 2008). See
section E on child-specific
considerations concerning
bars, below, for more
detail on the CSAA.

C.

UNHCR ExCom Conclusion No. 47
Over the years, the Executive Committee of the Office of the
United Nations High Commissioner for Refugees (UNHCR) has
adopted a number of conclusions concerning refugee children.
Safeguarding the wellbeing of refugee children has long been a
high priority of UNHCR and the United States. In 1987, the
Executive Committee issued its first conclusion devoted
exclusively to children – Conclusion No. 47. This Conclusion
urged action to address the human rights and needs of children
who are refugees and highlighted the particular vulnerability of
unaccompanied and disabled refugee children, and highlighted the
need for action by UNHCR to protect and assist them. Conclusion

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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For more on the Executive
Committee, see lesson,
Introduction to UNHCR.

UN High Commissioner for
Refugees, Conclusion on
Refugee Children, 12 Oct.
1987. No. 47 (XXXVIII) 1987.

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No. 47 condemned specific violations of basic human rights,
including sexual abuse, trafficking of children, acts of piracy,
military or armed attacks, forced recruitment, political
exploitation, and arbitrary detention. The document also called for
national and international action to prevent such violations and
assist the victims.
See section II.B.
Convention on the Rights of
the Child, above.

Conclusion No. 47 also emphasized that all action taken on behalf
of refugee children must be guided by the principle of the “best
interests of the child.”
D.

UNHCR ExCom Conclusion No. 59
UN High Commissioner for
Refugees, Conclusion on
Refugee Children, 13 Oct.
1989. No. 59 (XL) - 1989.

In Conclusion No. 59 issued in 1989, the Executive Committee
reaffirmed and expanded upon the need for particular attention
to the needs of refugee children, particularly in regards to access
to education. It also drew special attention to the needs of
unaccompanied minors, emphasizing the need to develop legal
methods to protect them from irregular adoption and forced
recruitment into armed forces.
E.

UNHCR ExCom Conclusion No. 107

2017
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The Executive Committee issued Conclusion No. 107 con ed
hiv
6 ar
7268 should be
Children at Risk in 2007. It recognizes that. children
13s, No
ssion
prioritized in receiving refugee vprotection and assistance. It also
. Se
uez
calls for UNHCR, MembergStates, and others to identify children
odri
as-R
Br due
at heightened risking to risks in the wider protection
ed in
cit
environment and risks resulting from individual circumstances,
and to work to prevent such heightened risks.
F.

Refugees, Conclusion on
Children at Risk, 5 Oct.
2007. No. 107 (LVIII) –
2007.

UNHCR Policies and Guidelines
UNHCR has enacted policies and issued several sets of childrelated guidelines in recent years.
1.

Senior Adviser for Refugee Children
Reflecting an expanded effort to safeguard the wellbeing of
refugee children, in 1992 UNHCR established the position
of Senior Coordinator for Refugee Children, now known as
the Senior Adviser for Refugee Children. This action was a
significant step toward improving UNHCR’s protection of
and assistance to minors.

2.

Policy on Refugee Children
The UNHCR Policy on Refugee Children issued in 1993

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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UNHCR. Policy on
Refugee Children,

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EC/SCP/82 (August 6,
1993).

points out that children’s needs are different from adults’ due
to their developmental needs, their dependence, including in
legal matters, and their vulnerability to harm. Thus,
governmental actions relating to children must be “tailored to
the different needs and potentials of refugee children,” to
avoid the tendency to think of refugees as a uniform group.
3.

Refugee Children: Guidelines on Protection and Care
UNHCR. Refugee Children:
Guidelines on Protection
and Care (Geneva: 1994).

In 1994 UNHCR issued Refugee Children: Guidelines on
Protection and Care, incorporating international norms
relevant to the protection and care of refugee children. The
Guidelines adopt a human rights perspective using the
articles in the CRC to set UNHCR’s standards. For the
survival and development of children, UNHCR endorses a
“triangle of rights:” the “best interests” rule, a policy of nondiscrimination towards all refugee children, and ageappropriate participation of children in issues affecting their
lives.
4.

Guidelines on Policies and Procedures in Dealing with
Unaccompanied Children Seeking Asylum
d

UNHCR published in 1997 the Guidelines on 86 archive and
Policies
26
13-7 Children
Procedures in Dealing With Unaccompanied
o.
ns, N
Seeking Asylum. The purposeessio Guidelines is threefold:
S of the
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2017

UNHCR. Guidelines on
Policies and Procedures in
Dealing With
Unaccompanied Children
Seeking Asylum (1997).

in
to increase awareness of the special needs of
unaccompanied children and the rights reflected in the
CRC;

cited

b.

to highlight the importance of a comprehensive
approach to child refugee issues; and

c.

to stimulate internal discussion in each country on
how to develop principles and practices that will
ensure that the needs of unaccompanied children are
met.

The UNHCR Guidelines emphasize that all children are
“entitled to access to asylum procedures, regardless of their
age,” and that the asylum process should be prioritized and
expedited for children’s cases. UNHCR recommends that
adjudicators take into account “circumstances such as the
child’s stage of development, his/her possibly limited
knowledge of conditions in the country of origin, and their
significance to the legal concept of refugee status, as well
as his/her special vulnerability.” It also notes that children
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may face child-specific persecution, such as recruitment of
child soldiers, forced labor, trafficking of children for
prostitution, and female genital mutilation. Finally,
UNHCR recommends that where there is “doubt as to the
veracity of the account presented or the nature of the
relationship between caregiver and child,… the child
should be processed as an unaccompanied child.”
5.

UNHCR Guidelines on Determining the Best Interests of
the Child

UNHCR. Guidelines on
Determining the Best
Interests of the Child (May
2008).

The Best Interests Determination (BID) Guidelines set
forth the formal process that UNHCR has established to
determine the best interests of refugee children confronted
with major decisions regarding their care or durable
solutions, such as the possibility of voluntary repatriation,
local integration, or resettlement. UNHCR commits to
undertake a BID in three contexts: (1) identification of the
most durable solution for unaccompanied and separated
refugee children; (2) temporary care decisions for
unaccompanied and separated refugee children in certain
exceptional circumstances; and (3) decisions which may
017
involve separating a child against his or her will from March 2, 2
d on
parents.
hive
6 arc
G.

Canadian Guidelines
in
cited

z v.

ue
odrig

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ns, N

268

13-7

io

Sess

as-R

Bring

On September 30, 1996, the Canadian Immigration and Refugee
Board (IRB) issued the groundbreaking guidance Child Refugee
Claimants: Procedural and Evidentiary Issues, the first document
of its kind issued by a country operating a refugee determination
system. In its guidelines, the Government of Canada recognizes
that refugee claims of children pose a special challenge since they
represent a particularly vulnerable group. The Canadian
guidelines, acknowledging that children may not be able to
articulate their claims to refugee status in the same way as adults,
establish special procedures for adjudicating children’s claims.
The guidelines also adopt the best interests of the child as the
relevant standard for assessing procedures to be followed in a
child’s claim. The IRB developed these guidelines after
consultation with international, national, local, and legal
organizations working with refugee children.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Immigration and Refugee
Board, Canada. Guideline
3: Child Refugee
Claimants: Procedural and
Evidentiary Issues (Ottawa:
30 September 1996), 18
pp., hereinafter, Canadian
Guidelines.

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III. CHILD DEVELOPMENT
The needs of child asylum seekers are best understood if the applicant
is regarded as a child first and an asylum-seeker second. Child asylumseekers approach the task before them as children, and not necessarily
as individuals with legal matters before a State.
Most of the information in this section is taken from the Lutheran
Immigration and Refugee Service (LIRS) publication Working with
Refugee and Immigrant Children: Issues of Culture, Law &
Development.

A.

Jacqueline Bhabha and
Wendy A. Young.
“Through a Child’s Eyes:
Protecting the Most
Vulnerable Asylum
Seekers,” Interpreter
Releases (Vol. 75, No. 21,
1 June 1998) p. 760.
LIRS. Working with
Refugee and Immigrant
Children: Issues of Culture,
Law & Development (June
1998), 84 pp., hereinafter
LIRS.

Development
A child’s ability to participate in the asylum interview will vary
based on a number of factors in the child’s development.
1.

Factors in development
7

, 201

At each stage in development, numerous factors interact March 2 LIRS, pp. 6-7.
to
on
shape the child’s personality and abilities. Factorsived
rch
a
2686
13-7
influencing development are:
No.
,
a.
b.

v.
guez

ions

Sess

o age;
chronological dri
as-R
cited

ing

in Br

physical and emotional health;

c.
d.

societal status and cultural background;

e.

cognitive processes;

f.

educational experience;

g.

language ability; and

h.
2.

physical, psychological, and emotional development;

experiential and historical background.

Factors that accelerate or stunt development
Some children may seem to be much older or much
younger than their chronological age. A number of
environmental and experiential factors can stunt or
accelerate dramatically the development of a child. They

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include, but are not limited to:
LIRS, p. 7.

a.
b.

experience with forms of violence;

c.

lack of protection and caring by significant adults;

d.

nutritional deficits;

e.

physical disabilities; and

f.
B.

chaotic social conditions;

mental disabilities.

Preconceptions
Children will bring to the asylum interview a unique set of
preconceived notions that could hinder the officer’s attempts to
elicit information. Such preconceptions may include the ideas
that:
1.

All governments are corrupt.

h 2,

d

arc
on M

The child may be arriving from a country whererchive she
a he or
2686
13-7 or knowledge of
.
has already had extensive interactionowith
ns, N
a corrupt government. Such essio may assume that the
S a child
.
ez v
drigu
fraud, abuse ofaauthority, and mistreatment of the citizens
s-Ro
ing
he orcishein Br
ted witnessed in the country of origin is just as
pervasive in the United States.
2.

LIRS, p. 36.

He or she should feel guilty for fleeing.
It is not uncommon for any asylum-seeker to experience
“survivor’s guilt” for having fled to a country of asylum,
especially when family members were left behind.

4.

LIRS, p. 35.

Others still at home will be harmed.
Especially when a child comes from a country in which
informants and their family members are harmed, the child
may not understand that the U.S. government has no
interest in harming, or doing anything to bring about the
harm of, his or her relatives still in the country of origin.

3.

2017

LIRS, p. 36.

Others will be privy to the testimony.
Many young people do not understand that in the asylum
setting, confidentiality protections generally prevent

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USCIS from sharing information with others, without the
applicant’s consent. This misconception is most likely to
hinder an interview when an applicant feels shame as a
result of his or her mistreatment, most commonly in cases
of sexual abuse.
Asylum officers must earn the trust of the child applicant in
order to dispel these preconceptions and put the applicant at
ease.

See section V.B., General
Interview Considerations,
below.

IV. PROCEDURAL CONSIDERATIONS
Except where otherwise
The majority of children who appear before an asylum officer do so
cited, the information in
as a dependent of a parent who has filed an asylum application. The
this section derives from
Children’s Guidelines apply primarily to children under the age of
the Children’s Guidelines.
eighteen who apply for asylum independently by submitting a Form I589 in their own name, rather than as derivative applicants on their
parents’ applications. However, for the purposes of derivative
determinations, the Guidelines apply to all individuals under the age
of twenty-one. While the Guidelines are particularly relevant for
children who raise independent asylum claims, the procedural
sections may be useful for all cases involving children and young
017
adults. Although young people between the ages of eighteen and March 2, 2
n
ed o
twenty-one will be interviewed much in the same manneraashadults,
rc iv
86
-7 6
asylum officers should bear in mind that an applicant2whose claim is
o. 13
ns, N
based on events that occurred while v. Sessio age of eighteen may
under the
uez
exhibit a minor’s recollection drigthe past experiences and events.
o of
s-R

A.

cited

inga

in Br

Asylum Officers
All asylum officers are trained on child refugee issues in the
event that they are called upon to interview a child who seeks
asylum. It is in the child’s best interests to be interviewed by an
official who has specialized training in child refugee issues. To
the extent that personnel resources permit, Asylum Offices
should attempt to assign asylum officers with relevant
background or experience to interview children’s cases.

B.

Interview Scheduling
Asylum offices should make every effort to schedule siblings’
interviews with the same asylum officer and in the same time
period, to the extent such cases are identified in advance of the
interviews. In cases where siblings are interviewed by different
asylum officers, the officers should consult with one another
about the claims and, to the extent possible, should be reviewed
by the same supervisory asylum officer.

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C.

USCIS Initial Jurisdiction for Unaccompanied Alien
Children’s Asylum Cases
With the William Wilberforce Trafficking Victims Protection
Reauthorization Act (TVPRA) of 2008, Congress gave USCIS
initial jurisdiction over any asylum application filed by an
unaccompanied alien child. This law took effect on March 23,
2009. As a result, unaccompanied alien children (UACs) filing
for asylum who previously would have had their case heard by
an immigration judge in the first instance now receive an
affirmative interview with an asylum officer. In conducting the
interview of someone who appears to be a UAC and who is in
removal proceedings, the asylum officer should verify that the
applicant was a UAC at the time of filing such that USCIS has
jurisdiction over the claim.

D.

William Wilberforce
Trafficking Victims
Protection
Reauthorization Act of
2008 (TVPRA), P.L. 110457 (Dec. 23, 2008). See
Joseph E. Langlois,
USCIS Asylum Division.
Implementation of
Statutory Change
Providing USCIS with
Initial Jurisdiction over
Asylum Applications Filed
by Unaccompanied Alien
Children, Memorandum.
(Mar. 25, 2009). For a
definition of
“unaccompanied alien
child,” see section
IV.D.2., below.

Minor Principal and Unaccompanied Minor Field in RAPS
1.

In August 2007, the Asylum Division incorporated a new arch
nM
ed o
rchiv
mechanism in RAPS to capture data on minor6 principal
a
268
13-7
applicants, both accompanied andsunaccompanied. The
No.
,
ion
Ses
mechanism allows the AsylumsDivision to track applicants
z v.
e
drigu
who are unaccompanied minors and reminds asylum
s-Ro
inga
in Br
officersdthat modified procedures are in order when
cite
handling a minor principal applicant’s claim. The ability to
gather information on the adjudication of unaccompanied
minors’ applications assists the Asylum Division in
developing or refining policy with regard to these cases.

2.

Joseph E. Langlois, USCIS
17
Asylum Division. Updated
Procedures for Minor
Principal Applicant
Claims, Including Changes
to RAPS, Memorandum
(Aug. 14, 2007). See the
memo for more details
about the commands used
in RAPS to capture this
data.

2, 20

Definition of Minor Principal, Unaccompanied Minor, and
Unaccompanied Alien Child
a.

Minor Principal
A minor principal is a principal applicant who is
under eighteen years of age at the time of filing an
asylum application.

b.

Unaccompanied Minor
For purposes of making a determination in RAPS as
to whether the applicant is an unaccompanied minor,
an unaccompanied minor is a child who is under
eighteen years of age and who has no parent or legal

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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See Section 462 of the
Homeland Security Act of
2002, 6 U.S.C. §
279(g)(2) (defining the
term “unaccompanied

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guardian in the U.S. who is available to provide care
and physical custody. This definition encompasses
separated minors, e.g., those who are separated from
their parents or guardians, but who are in the informal
care and physical custody of other adults, including
family members. Note that a child who entered the
U.S. with a parent or other adult guardian but who
subsequently left the parent’s or guardian’s care
would be considered an unaccompanied minor.

alien child”).

For purposes of the unaccompanied minor definition,
guardianship refers to a formal (legal/judicial)
arrangement. If the parent is deceased and there is no
legal guardianship arrangement, the child would be
considered unaccompanied.
c.

Unaccompanied Alien Child
Section 462 of the

The Homeland Security Act of 2002 defines an
Homeland Security Act of
unaccompanied alien child (UAC) as a person under
2002, 6 U.S.C. §
18 years of age, who has no lawful immigration status
279(g)(2).
in the U.S., and who either has no parent or legal
7
, 201
guardian in the U.S. or has no parent or legal guardianrch 2
Ma
d on
in the U.S. who is available to provide carerchive
and
86 a
-726
physical custody. Other thansdefining an
o. 13
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unaccompanied alienv.childio a person who has no
Sess as
z
igue status in the U.S., the term
odr
lawful immigration
as-R
Bring
in
“unaccompanied minor” as adopted in the August
cited
2007 Asylum Division memo is the same as the term
“unaccompanied alien child.” The definition of a
UAC is important, as USCIS has initial jurisdiction
over asylum applications filed by UACs, even if the
UAC is in removal proceedings.
E.

Submission of Juvenile Cases to HQASM for Quality
Assurance Review
All asylum claims filed by principal applicants under the age of
eighteen at the time of filing must be submitted to the
Headquarters Asylum Division (HQASM) for quality assurance
review before they can be finalized. This requirement applies to
minor principal applicants in the purely affirmative asylum
context and to UAC minor principal applicants with pending
removal proceedings who are before USCIS by virtue of the
TVPRA’s initial jurisdiction provision.

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Joseph E. Langlois, USCIS
Asylum Division. Issuance
of Revised Quality
Assurance Referral Sheet
and Instructions on
Submission of Certain
Claims for Quality
Assurance Review,
Memorandum (Feb. 9,
2007).

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F.

Determining Capacity to Apply for Asylum
INA § 208(a)(1); 8 C.F.R. §
Statutorily, subject to the filing bars, any alien in the U.S.,
103.2(a)(2).
without regard to immigration status, has the right to apply for
asylum. Under certain circumstances, however, children may
lack the capacity to assert this right to apply for asylum. While
there is no age-based restriction to applying for asylum, USCIS
Bo Cooper, INS General
need not “process…applications if they reflect that the purported Counsel Elian Gonzalez,
Memorandum (Jan. 3,
applicants are so young that they necessarily lack the capacity to
2000).
understand what they are applying for or, failing that, that the
applications do not present an objective basis for ignoring the
parents’ wishes.” In the case involving Elian Gonzalez, the sixyear-old Cuban boy who applied for asylum against the wishes of
his father in Cuba, INS determined that he did not have the
capacity to seek asylum on his own behalf. Important to INS’s
Gonzalez v. Reno, 212
decision was the finding that Elian was not at risk of persecution or F.3d 1338 (11th Cir.
torture, that Elian’s father had Elian’s best interests in mind, and
2000).
that the father did not have conflicts of interest that would prevent
him from pursuing the child’s best interests. The Eleventh Circuit
upheld the INS policy, noting that line-drawing on the basis of
age is an adequate approach to determining who may
17
2, 20
individually file for asylum.
arch
nM

ed o

hiv
6 arc

268
In Polovchak v. Meese, a Seventh Circuit case -involving a
13 7
No.
s,
twelve-year-old boy’s grant of asylumncounter to his parents’
ssio
v. Se
z court evaluated the applicant’s
wishes to return to Russia,igue
dr the
s-Ro
inga individual rights as part of the court’s
capacity to assertrhis
in B
c ted
procedural idue process balancing test: “At the age of twelve,
Walter was presumably near the lower end of an age range in
which a minor may be mature enough to assert certain individual
rights that equal or override those of his parents; at age
seventeen (indeed, on the eve of his eighteenth birthday), Walter
is certainly at the high end of such a scale, and the question
whether he should have to subordinate his own political
commitments to his parents’ wishes looks very different. The
minor’s rights grow more compelling with age, particularly in
the factual context of this case.” While the court was not
evaluating capacity to apply for asylum, its findings on age and
capacity to assert individual rights are nonetheless instructive in
the asylum context.

Federal regulations governing asylum adjudications generally do
not permit the disclosure to third parties of information
contained in or pertaining to an asylum application without the
written consent of the applicant. However, in the case of young
children who lack the capacity to make immigration decisions,
the Asylum Officer will need to determine who has the legal
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Polovchak v. Meese, 774
F.2d 731, 736-37 (7th Cir.
1985); see also 8 CFR §
103.2(a)(2) (providing
that a parent or legal
guardian may sign an
application or petition of a
person under the age of
fourteen); 8 CFR §
236.3(f) (providing for
notice to parent of
juvenile’s application for
relief).

8 C.F.R. § 208.6.

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authority to speak for the child. Where a child lacks capacity
and a parent or legal guardian has the authority to speak for the
child, notification of the parent or legal guardian will not violate
the asylum confidentiality provisions in 8 CFR § 208.6.
When questions of the child’s capacity to apply for asylum arise,
the Asylum Office should contact HQASM.
G.

See Polovchak, 774 F.2d at
735 (noting “the
fundamental importance
of the parents’ interest in
the residence, nurture and
education of a minor
child, then twelve or
thirteen”).

Conflicts between the Child’s and Parents’ Interests
Where a child applies for asylum without the parents’
knowledge and/or consent, many complex issues are raised.
When there appears to be a conflict between a child’s and the
parents’ interests concerning the asylum application, the Asylum
Office should contact HQASM.

V.

INTERVIEW CONSIDERATIONS
Child asylum applicants may be less forthcoming than adults and may Except where otherwise
cited, the information in
hesitate to talk about past experiences in order not to relive their
this section derives from
trauma. The following procedures having been designed with
the Children’s Guidelines.
children’s behavior and cognitive ability in mind to help asylum
2017
officers interact more meaningfully with children during an asylumMarch 2,
n
ed o
interview.
rchiv
86 a
A.

-726
o. 13
ns, N
Presence of Trusted Adult at the ssio
Se Interview
z v.
igue
odr
as-R
Bring
It is usually eappropriate for a trusted adult to attend
in
cit d

an asylum
interview with the minor applicant in order to establish the
interview conditions most likely to elicit a full story. A child’s
lack of experience in talking with government officials can make
testifying difficult, particularly when discussing traumatic
events. A trusted adult is a support person who may help to
bridge the gap between the child’s culture and the environment
of a U.S. asylum interview. The function of the adult is not to
interfere with the interview process or to coach the child during
the interview, but to serve as a familiar and trusted source of
comfort. As appropriate, asylum officers may allow the adult to
provide clarification, but asylum officers should ensure that
those children able to speak for themselves are given an
opportunity to present the claim in their own words.
The policy of allowing a trusted adult to participate in this
process does not mean to suggest that the trusted adult serve as a
substitute for an attorney or an accredited representative, neither
is there a requirement that a trusted adult, attorney, or accredited
relative be present at the interview. The child may be
accompanied at the interview by both a trusted adult and an
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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See UNHCR. Refugee
Children: Guidelines on
Protection and Care
(Geneva: 1994) p. 102; and
lesson, Interviewing Part I:
Overview of
Nonadversarial Interview:
“Some applicants may
request that a relative or
friend be present at the
interview for ‘moral
support.’ There is no
prohibition against this and
the asylum officer, in his or
her discretion, may allow
such individual to remain
during the interview.”

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attorney or accredited representative.
When conducting an interview of a child in the presence of
another adult, the asylum officer should assess whether the child
is comfortable speaking freely in front of the adult. In order to
ascertain the child’s level of comfort with the adult, asylum
officers may initially bring the child into the interview room
alone, and ask if the child would like for the accompanying adult
to be present. This approach will generally work best with
adolescents. Where warranted, asylum officers may additionally
ask the child at the end of the interview if he or she has anything
to add in private. If at any point during the course of the
interview the asylum officer determines that the child is
uncomfortable or afraid of the adult, the asylum officer should
continue the interview without that person. Given concerns
regarding human trafficking, particularly in children, attention to
the nature of the relationship between the child and the adult is
particularly important.
As appropriate and with the consent of the child, asylum officers See Joseph E. Langlois,
are encouraged to interview the trusted adult, if any, in order to
USCIS Asylum Division.
Updated Procedures for
confirm his or her relationship to the child, any guardianship
7
, 201
rch 2 Minor Principal Applicant
arrangement, and the adult’s legal authority to speak on behalf of
Ma
d on
Claims, Including Changes
the child. The adult may also have information aboutrchive
parental
86 a
to RAPS, Memorandum.
726
knowledge of and consent to the asylum, application. The trusted
o. 13
ns N
essio
adult may also be able to provideSinformation on the child’s
z v.
igue the time of harm or interview
claim where the child’s odr at
s-R age
inga
prevents himdor Br from fully detailing events. Where
e in her
cit
inconsistencies arise between the applicant’s and the adult’s
testimony, an opportunity must be given to the child to reconcile
inconsistencies apparent at the interview. Note that it is not a
requirement that a witness or trusted adult be present at the
interview.
B.

Interview Questions Concerning Guardianship and Parental
Knowledge and Consent
If a child appears at the asylum interview without a parent or
guardian, asylum officers should inquire into the location of the
child’s parents, and whether the parents are aware of the child’s
whereabouts and that the child has applied for asylum.

See Joseph E. Langlois,
USCIS Asylum Division.
Updated Procedures for
Minor Principal Applicant
Claims, Including Changes
to RAPS, Memorandum.

Asylum officers should elicit information about issues of
guardianship and parental knowledge of and consent to the
application for asylum. The questions of guardianship may be
particularly important for unaccompanied minors because
whether or not there is a legal guardian informs the asylum
officer’s decision of whether to categorize the applicant as an
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unaccompanied minor. Additionally, the information elicited by
asylum officers is useful to HQASM in informing policy making
and in helping HQASM provide guidance on individual cases, as
necessary.
Below are questions and issues that asylum officers should take
into account when conducting an interview with a minor
principal applicant. These questions provide a general
framework for exploration of issues of guardianship and parental
knowledge and consent. Interview notes should reflect the
below-requested information. A minor principal applicant’s
inability to demonstrate a guardianship arrangement or parental
knowledge and consent does not foreclose the adjudication of the
application or a grant of asylum; rather, these questions are
important to HQASM in reviewing cases, gathering information,
and informing our policy on juvenile cases. If there is a concern
in regards to parental notification and confidentiality, or a
concern for the child’s welfare and/or safety, please contact
HQASM for further guidance.
1.

With whom is the child living in the U.S.?

2.

Did anyone accompany the child to the interview?

3.

Is there a guardianship arrangement?o.
s, N
v.
guez

d

hive

6 arc

268
13-7

h 2,

arc
on M

ion

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4.

If there is an adult odri
as-R caregiver but not a legal guardian, what
Bring
arrangements has the adult made to provide for the child?
ed in
cit

5.

Is there one or more living parent?

6.

C.

2017

Do the parents know that the child is applying for asylum
in the U.S.?

General Interview Considerations
1.

Conducting a non-adversarial interview
Although all interviews with asylum applicants are to be
conducted in a non-adversarial manner, it is crucial when
interviewing children that the tone of the interview allow
the child to testify comfortably and promote a full
discussion of the child’s past experiences.

8 C.F.R. § 208.9(b).

In many cases, girls and young women may be more
comfortable discussing their experiences with female
asylum officers, particularly in cases involving rape, sexual

See Phyllis Coven, INS
Office of International
Affairs. Considerations
For Asylum Officers

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abuse, prostitution, and female genital mutilation. To the
extent that personnel resources permit, asylum offices
should have female asylum officers interview such
applicants.
2.

Adjudicating Asylum
Claims From Women
(Gender Guidelines),
Memorandum. May 26,
1995), p. 5.

Working with an interpreter
Interpreters play a critical role in ensuring clear
communication between the child and asylum officer and
the actions of an interpreter can affect the interview as
much as those of an asylum officer. As in all interviews,
asylum officers should confirm that the child and the
interpreter fully understand each other. Asylum officers
should also confirm that the child understands the role of
the interpreter. This is particularly important in cases
where the interpreter does not have the child’s best interests
at heart, such as when the private interpreter is part of a
trafficking ring. In cases where the child appears to be
uncomfortable with the interpreter, or where the interpreter
does not appear to be interpreting correctly, asylum officers
should stop the interview and reschedule with a different
interpreter.

See lesson, Interviewing
Part VI: Working with an
Interpreter.

2017
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Marc
The identity of the interpreter is especially significant on
ed when
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86
children have been victims of sexual violence. aIn such
See Gender Guidelines,
-726
o. 13
situations, children may be veryioreluctant to share such
ns, N
5; and lesson,
ss
Se
z v.
information if the interpreter is of the opposite gender,
Interviewing Part VI:
igue
odr
especially ifriheas-Rshe is a parent, relative, or family friend.
Working with an
ng or
in B
ci effort should be made to make sure that the child
Interpreter.
Everyted

p.

applicant is comfortable testifying through the interpreter.
3.

Building rapport
The child may be reluctant to talk to strangers due to
embarrassment or past emotional trauma. Asylum officers
may have to build rapport with the child to elicit the child’s
claim and to enable the child to recount his or her fears
and/or past experiences. Where the child finds the asylum
officer friendly and supportive, the child is likely to give
fewer false details.
Asylum officers must be culturally sensitive to the fact that
asylum applicants are testifying in a foreign environment
and may have had experiences leading them to distrust
persons in authority. A fear of encounters with government
officials in countries of origin may carry over to countries
of reception. This fear may cause some children to be
initially timid or unable to fully tell their story.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

LIRS, p. 45.

UNHCR Handbook, para.
198.

LIRS, p. 38; Nancy W.

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Asylum officers may be able to overcome much of a child’s
timidity or nervousness with a brief rapport-building phase
during which time neutral topics are discussed, such as
general interests, family, pets, hobbies, and sports. Asylum
officers may wish to ask family members or the attorney
about the child’s interests before the interview to ease
conversation. This rapport-building phase also permits the
asylum officer to assess the child’s ability to answer
questions.

Perry and Larry L. Teply.
“Interviewing, Counseling,
and In-Court Examination
of Children: Practical
Approaches for Attorneys,”
Creighton Law Review
(vol. 18, 1985) pp. 13691426, reprinted in Jean Koh
Peters. Representing
Children in Child
Protective Proceedings:
Ethical and Practical
Dimensions
(Charlottesville, Virginia:
Lexis, 1997), pp. 584-585.
(hereafter Perry and
Teply).

Once the child appears comfortable, the asylum officer
should make a brief opening statement before beginning the See Annex I of this lesson
for an example of an
formal interview. Asylum officers can explain in very
opening statement to be
simple terms in the opening statement what will happen
used in interviews of
during the asylum interview and the roles that the asylum
children.
officer, applicant, interpreter, and/or attorney will play.
Knowing what to expect will help ease the child applicant’s 2,LIRS, pp. 45-46.
2017
h
Marc
anxiety.
n
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6 arc

268
13-7

.
The tone of the opening statementsis intended to build trust
, No
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and to assure the childuthat. the asylum officer will be
zv
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s to help understand the asylum claim. The
asking questions-Rod
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statementngives the child permission to tell the asylum
cited
officer when the child does not understand a question.
Children need to know that it is permissible for them to tell
adults when they either do not understand a question or do
not know an answer. Children also need to be reassured
that embarrassing or traumatic events from the past
generally will not be shared, without their prior consent,
with others, including family members, friends, or
individuals from their home country.

4.

See 8 C.F.R. § 208.6 on
disclosure to third parties.

“Reading” the applicant
During the interview the asylum officer must take the
initiative to determine whether the child understands the
process and the interview questions. The asylum officer
should watch for non-verbal cues, such as puzzled looks,
knitted eyebrows, downcast eyes, long pauses, and irrelevant
responses. While these behaviors may signal something
other than lack of comprehension, they may also signal that a
child is confused. In such circumstances, the asylum officer
should pause, and if no appropriate response is forthcoming,

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

LIRS, pp. 46-47.

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rephrase the question.
Correspondingly, the asylum officer should expect the child
to be attuned to the asylum officer’s body language.
Children rely on non-verbal cues much more than adults to
determine whether they can trust the person. The asylum
officer should be careful neither to appear judgmental nor to
appear to be talking down to the child.
5.

LIRS, p. 27. Perry and
Teply, p. 1380.

Explaining how to respond to questions
Children in some cultures are taught to listen to adults but not
to speak in their presence. Other children may have spent
time in school or other environments where providing
answers to questions is expected and responding with “I
don’t know” is discouraged.
LIRS, p. 50.

If necessary, an asylum officer may explain to the child how
to use the “I don’t know” response.
Example:

7

, 201

AO: If I ask you the question, ‘How many windows are n March 2
in
do
this building?’ and you don’t know the answer 6 arthate
to chiv
268
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question, you should say, ‘I don’t know.’3-Let’s practice that.
No.
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‘How many windows arezin. Sessibuilding?’
v this
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Child: I don’t as-Rodrig
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in Br

This approach helps to ensure that the child understands
when to provide an “I don’t know” response.
6.

Reassuring the applicant
If at any time during the course of the interview the child
begins to feel uncomfortable or embarrassed, the asylum
officer should offer verbal reassurances. The asylum officer
may empathize with the child by saying, “I know that it’s
difficult to talk about this, but it is important for me to hear
your story.” Additionally, a simple expression of interest
(e.g., “I see” or “uh-huh”) may be enough for the child to
continue.

Perry and Teply, p. 1381,
citing John Rich, MD.
Interviewing Children and
Adolescents (London:
MacMillan & Co., 1968),
p. 37.

The asylum officer may also shift the focus of the
questioning to a non-threatening subject until the child
regains his or her confidence. Reassurance, empathetic
support, carefully framed questions, encouragement, and
topic-shifting are crucial techniques for facilitating interviews
of children.
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

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7.

Taking breaks
Asylum officers should take the initiative in suggesting a
brief recess when necessary. Sometimes a child’s way of
coping with frustration or emotion is “to shut down during
the interview, to fall into silence, or respond with a series of
‘I don’t know’ and ‘I don’t remember’ responses.” Many
children may not take the initiative to request a recess if
needed. A young child, for example, may stop answering
questions or cry rather than interrupt the asylum officer with
a request to go to the bathroom or rest. The responsibility
may fall to the asylum officer to monitor the child’s needs.

8.

Symposium: Child Abuse,
Psychological Research On
Children As Witnesses:
Practical Implications
Forensic Interviews And
Courtroom Testimony, 28
PAC. L.J. 3 (1996), p. 70,
(hereafter Symposium).

Concluding the interview
As the interview draws to a close, the asylum officer should
return to a discussion of the neutral topics with which the
interview began. This approach will help to restore the
UNHCR. “Interviewing
child’s sense of security at the conclusion of the interview.
Children,” in Interviewing
As with all cases, the asylum officer should ask the child if he Applicants for Refugee
Status (1995), p. 48.
or she has any final questions, and inform the child of the
7
, 201
rch 2
next steps in the application process.
Ma
on

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.
Child-Sensitive Questioning and Listening Techniques
s, No
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Children may not understand questions and statements about their
s-Ro
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past because d in Br cognitive and conceptual skills are not
their
cite
sufficiently developed. The asylum officer’s questions during the
interview should be tailored to the child’s age, stage of language
development, background, and level of sophistication. A child’s
mental development and maturity are important considerations
when determining whether the child has satisfied his or her burden
to establish that he or she meets the definition of a refugee. In
order to communicate effectively with a child asylum applicant, an
asylum officer must ensure that both the officer and the child
understand one another.

UNHCR Handbook, para.
214.

The asylum officer should take care to evaluate the child’s words
from the child’s point of view. Most children cannot give adultlike accounts of their experiences and memories, and asylum
officers should be conscientious of age-related or culturally-related
reasons for a child’s choice of words.
Example: The phrase “staying awake late” may indicate after 10
p.m. or later to the asylum officer, while the phrase could mean
early evening for a child.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Perry and Teply, p. 1383.

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Children’s perceptions of death can cloud their testimony
concerning such matters. Children may not know what happened
or may feel betrayed by an adult who has died, and some may not
understand the permanence of death. Even older children may not
fully appreciate the finality of death until months or years after the
event.
Example: Instead of saying that a relative died or was killed, a
child may state that the individual “went away” or “disappeared,”
implying that the individual may return.

Perry and Teply, p. 1419,
citing R. Kastenbaum.
“The Child’s
Understanding of Death:
How Does it Develop?”
Explaining Death to
Children (E. Grollam, ed.
1967), p. 98.

Proper questioning and listening techniques will result in a more
thorough interview that allows the case assessment to be more
complete and accurate. The following techniques should help the
asylum officer elicit more thorough information.
1.

General rules
Asylum officers should endeavor to:
a.

Symposium, p. 40.

use short, clear, age-appropriate questions.

17

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a
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Example: “What happened?” as opposed rto i“What
h ve
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event followed the arrest?” No. 13-

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avoid using-Rodri or compound questions.
long
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in Br

Example: “What time of year did it happen?” and
“What time of day did it happen?” as opposed to
“What time of year and what time of day did it
happen?”

c.

use one or two syllable words in questions and avoid
using three or four syllable words
Example: “Who was the person?” as opposed to
“Identify the individual.”

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Ann Graffam Walker,
Handbook on Questioning
Children: A Linguistic
Perspective (Washington,
DC: ABA Center on
Children and the Law,
1994), pp. 95-98 reprinted
in Lutheran Immigration
and Refugee Service.
Working with Refugee and
Immigrant Children: Issues
of Culture, Law &
Development (June 1998),
p. 63. (hereafter Walker);
and Symposium, p. 40.
Symposium, p. 40 (note that
this technique is generally
more important when
conducting the interview in
English without an
interpreter).

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d.

Symposium, p. 40.

avoid complex verb constructions.
Example: “Might it have been the case….?”

e.

f.

Walker, reprinted in LIRS,
p. 63; Symposium, p. 40.

ask the child to define or explain a term or phrase in
the question posed in order to check the child’s
understanding.
ask the child to define or explain the terms or phrases
that he or she uses in answers, then use those terms.
Example: If a child says that his father
“disappeared,” ask him what he means by
“disappeared,” and then use that term in questions
involving that event.

g.

Walker, reprinted in LIRS
p. 63.

use easy words over complex ones.
Example: “Show,” “tell me about...,” or “said”
instead of “depict,” “describe,” or “indicate.”

h.

tolerate pauses, even if long.

i.

ask the child to describe the concrete and archive
observable,
2686
13-7
not the hypothetical or abstract. o.
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v.
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Symposium, p. 40.

ion

Sess

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use visualizable, instead of categorical, terms.
Rod
gascited

Perry and Teply, p. 1380.
7

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Symposium, p. 40.

in
in Br

Example: Use “gun,” not “weapons.”

k.

avoid the use of legalistic terms in questions, such as
“persecution.”

Symposium, p. 40.

Example: Ask, “Were you hurt?” instead of “Were
you persecuted?”
Example: Asylum can be explained as “a way to stay
in the U.S. if there are people who hurt or want to hurt
[you] back home and [you are] afraid of returning.”

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Christopher Nugent and
Steven Schulman, Giving
Voice to the Vulnerable:
On Representing Detained
Immigrant and Refugee
Children, 78 No. 39
INTERPRETER
RELEASES 1569, 1575
(2001).

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l.

avoid using idioms.
Idioms are phrases that mean something other than
what the words actually say. Such phrases could be
difficult for both the interpreter and the child applicant
to understand.
Example: Ask, “Do you understand?” not “Is this
over your head?”

m.

use the active voice, instead of passive, when asking
a question.

Symposium, p. 40.

Example: Ask, “Did the man hit your father?”
instead of “Was your father hit by the man?”
n.

Symposium, p. 40.

avoid front-loading questions.
Front-loading a question places a number of
qualifying phrases before asking the crucial part of the
question.

Example: “When you were in the house, on Sundayarch 2,
on M
the third, and the man with the gun entered,chivedthe
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man say…?”
13-7
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question
cited

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LIRS, p. 47.

ing
in Br

Example: The question, “Was your mother killed
when you were 12?” should be avoided. The question
asks to confirm that the mother was killed and about
the child’s age at the same time.

p.

avoid leading questions.
Research reveals that children may be more highly
suggestible than adults and are more likely to answer
according to what they think the interviewer wants to
hear. Leading questions may influence them to
respond inaccurately.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

LIRS, p. 26, and Perry and
Teply, pp. 1393-1396.

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q.

use open-ended questions to encourage narrative
responses.
Children’s spontaneous answers, although typically
less detailed than those elicited by specific
questioning, can be helpful in understanding the
child’s background. Try not to interrupt the child in
the middle of a narrative response.

r.

LIRS, p. 47.

explain any repetition of questions.
Make clear to the child that he or she should not
change or embellish earlier answers. Explain that you
are asking repeated questions to make sure you
understand the story correctly.
“Repeated questions are often interpreted (by adults as
well as children) to mean that the first answer was
regarded as a lie or wasn’t the answer that was
desired.”

s.

Walker, reprinted in LIRS,
p. 64.
Symposium, p. 23.

Walker, reprinted in LIRS,
p. 64.

Symposium, p. 41.
never coerce a child into answering a question during
7
, 201
rch 2
the interview.
Ma
on
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6 arc

268
13-7

Coercion has no place in anys,asylum interview. For
o.
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example, an asylum v. Sessio should never tell a child
officer
ez
d igu
that she cannot rleave the interview until she answers
s-Ro
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the iasylum officer’s questions.
cited
t.

2.

accept that many children will not be immediately
forthcoming about events that have caused great pain.

Details
Children may not know the specific details or circumstances
that led to their departure from their home countries.
Children may also have limited knowledge of conditions in
the home country, as well as their own vulnerability in that
country.
For both developmental and cultural reasons, children cannot
be expected to present testimony with the same degree of
precision as adults. More probing and creative questions are
required.

Canadian Guidelines, p. 8.

Example: The child may not know whether any family
members belonged to a political party. The asylum officer
should probe further and ask the child whether his or her
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

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parents attended any meetings and when the meetings were
held. The asylum officer should also make an inquiry into
the location of the meetings, other people who attended the
meetings, and whether the people had any problems. The
child’s knowledge of these matters may support a conclusion
regarding the family’s political association, despite the fact
that the child may not know the details of the association.
3.

Measurements of time and distance
Children may try to answer questions regarding
measurements of distance or time without the experience to
do so with any degree of accuracy. Asylum officers must
make an effort to ascertain the child’s quantitative reasoning
ability.
Example: The asylum officer should determine the child’s
ability to count before asking how many times something
happened.

Symposium, p. 41.

Even older children may not have mastered many of the
concepts relating to conventional systems of measurement for
2017
h 2,
telling time (minutes, hours, calendar dates).
Marc
on
d

hive

6 arc

268
13-7

Not only is imprecise time and date ,recollection a common
o.
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problem for children owing. toessio cognitive abilities, it can
S their
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also be a product -of drig culture. The western mind typically
s Ro their
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measuresin Br linearly, in terms of successive – and precise time
cited
named days, months, and years. Many cultures, however,
note events not by specific date but by reference to cyclical
(rainy season, planting season, etc.) or relational
(earthquakes, typhoons, religious celebrations, etc.) events.

See lesson, Interviewing
Part IV: Inter-Cultural
Communication and Other
Factors That May Impede
Communication at an
Asylum Interview.

Example: In response to the question, “When were you
hurt?” it may not be uncommon for a child to state, “During
harvest season two seasons ago” or “shortly after the
hurricane.” These answers may appear vague and may not
conform to linear notions of precise time and named dates,
but they may be the best and most honest replies the child can
offer.
Even in those cultures where time is measured by a calendar,
it may not comport to the Gregorian calendar used in the
western world.
Example: Many Guatemalan Indians still use the Mayan
calendar of 20-day months.

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SEPTEMBER 1, 2009

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Example: In certain Asian cultures, a baby is considered to
be “1” on his or her date of birth thereby causing, to the
western mind at least, a 1-year discrepancy between the
child’s age and date of birth.
Example: In many Latin cultures, 2 weeks is often “15
days” because the first and last days are counted.
Example: Certain Asian cultures count the first day or year,
adding 1 day or year to the time of the event.
4.

“I don’t know” responses
In certain cultures, “I don’t know” is used when an individual
has no absolute knowledge but has an opinion about the truth
of the matter in question.
Example: A child may respond “I don’t know” when asked
who killed his or her parents, but upon further inquiry may
state that everyone in his or her home village believes that it
was government forces. Asylum officers should generally
probe further regarding these opinions. The child’s
7
, 201
awareness of community opinion may provide information arch 2
M
d on
about the issue in question even though the childamaye
rchiv
86
726
. 13initially state “I don’t know.”
s, No

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Sess

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Credibility Considerations During the Interview
Rod
gascited

in

in Br

Sensitivity to cultural and personal experiences is required of all
asylum officers irrespective of the applicant’s age. This becomes
critical when examining testimony presented for credibility. The
task of making an appropriate asylum decision when interviewing
children, including making a credibility determination, requires
that asylum officers be aware of the following issues involving the
testimony of children.
1.

See lessons, Interviewing
Part IV: Inter-Cultural
Communication…; and
Credibility.

Demeanor
The term “demeanor” refers to how a person handles himself
or herself physically – for example, maintaining eye contact,
shifts in posture, and hesitations in speech. A child may
appear uncooperative for reasons having nothing to do with
the reliability of his or her testimony.
Example: Different cultures view expressions of emotion
differently. Though an asylum officer raised in the United
States might question the credibility of a child who, without
crying or expressing emotion, is able to retell how his or her

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parents were killed in front of him, it could be that the child
was raised in a culture that deems improper any expression of
emotion in front of an authority figure.
2.

Trauma
Asylum officers should be careful when interpreting certain
emotional reactions or psychiatric symptoms as indicators of
credibility. Children who have been subjected to extreme
abuse may be psychologically traumatized. Lengthy
confinement in refugee camps, repeated relocation, or
separation from family can also greatly impact the
psychological well-being of children. Children who are
separated from their families due to war or other refugeeproducing circumstances are placed at even greater
psychological risk than those children who remain in the care
of parents or relatives.
See lesson, Interviewing
Trauma can be suffered by any applicant, regardless of age,
Part V: Interviewing
and may have a significant impact on the ability of an
Survivors: Physical Abuse,
applicant to present testimony. Symptoms of trauma can
Torture, and Traumainclude depression, indecisiveness, indifference, poor
Related Conditions.
017
concentration, avoidance, or disassociation (emotionally March 2, 2
n
ed o
separating oneself from an event). A child may appear numb
rchiv
86 a
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or show emotional passivity when recounting past events of
o. 13
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mistreatment. A child may .give imatter-of-fact recitations of
Sess
zv
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serious instances -ofodr
mistreatment. Trauma may also cause
as R
Br or
memory lossing distortion, and may cause applicants to block
in
cited
certain experiences from their minds in order not to relive
their horror by retelling what happened. Inappropriate
laughter or long pauses before answering can also be a sign
of trauma or embarrassment. These symptoms can be
mistaken as indicators of fabrication or insincerity, so it is
important for asylum officers to be aware of how trauma can
affect an applicant’s behavior.

3.

Age and developmental considerations
In reviewing a child’s testimony, the asylum officer should
consider the following:

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a.

b.

the child’s age and development at the time of the
retelling.

c.

4.

the child’s age and development at the time of the
events.

the child’s ability to recall facts and communicate
them.

Other considerations
The asylum officer may encounter gaps or inconsistencies in
the child’s testimony. The child may be unable to present
testimony concerning every fact in support of the claim, not
because of a lack of credibility, but owing to age, gender,
cultural background, or other circumstances.

See lesson, Credibility; see
also Canadian Guidelines,
p. 12; Bhabha and Young.

Officers should keep the following in mind:
a.

the impact of the lapse of time between the events and
the retelling.
7

, 201

Any individual may have trouble remembering eventsrch 2
n Ma
ed o
that took place many years earlier. However,ivchildren
rch
a
2686
1
who may have been very youngoat 3-7 time of an
N . the
,
ions
incident will have greatersdifficulty in recalling such
Ses
z v.
ue
events. gas-Rodrig
b.

c.

cited

in

in Br

the needs of children with special mental or emotional
issues.

the limited knowledge that children may have of the
circumstances surrounding events.
Example: A child may not know the political views of
his or her family, despite the fact that his parents were
among the most visible individuals in the opposition
party. When asked follow-up questions, the asylum
officer learns that the applicant was seven years old
when his parents were assassinated and the relatives
who raised him were reluctant to share any information
about his parents’ activities.

d.

the role of others in preparing children for interview.
Some children may have been coached by a human
trafficker or an ill-informed adult to tell a particular
story, which the child repeats at the interview in order

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not to anger the adult. The fact that a child begins to tell
a fabricated story at the interview should not foreclose
further inquiry, and the asylum officer should undertake
a careful and probing examination of the underlying
merits of the child’s case. Quite often a child does not
intend to deceive when making a fabrication or
exaggeration; rather the statement may serve another
purpose for the child such as to avoid anticipated
punishment, to be obedient to the perceived authority
figure (perhaps the attorney or the asylum officer), or to
please others.

LIRS, p. 51.

Given the above-noted considerations of issues that may arise in
children’s asylum cases, all efforts should be made during the
interview to present the minor applicant with adverse
information and to give the applicant an opportunity to provide
an explanation. Where adverse information is discovered after
the interview, the asylum office should consider scheduling a reinterview in order to give the minor applicant an opportunity to
address the issue.
F.

Evidence

h 2,

d

arc
on M

In evaluating the evidence submitted to support the 86 archive of a
application
26
13-7 account the
child seeking asylum, adjudicators should No. into
, take
ions
child’s ability to express his orzher recollections and fears, and
Sess
v.
ue
should recognize that s-Risdgenerally unrealistic to expect a child to
it o rig
a
Bring
testify withittheinprecision expected of an adult. The UNHCR
c ed
Handbook advises that children’s testimony should be given a
liberal “benefit of the doubt” with respect to evaluating a child’s
alleged fear of persecution. In the concurring opinion to Matter of
S-M-J-, “the benefit of the doubt” principle in asylum
adjudications is described thus:
…while the burden of proof is borne by the asylum
applicant, our law does not include a presumption that an
applicant is unbelievable. If as adjudicators we
intentionally or subjectively approach an asylum applicant
and presume an individual to be a liar rather than a truth
teller, we violate not only our duty to be impartial, but we
abrogate the statute and regulations which govern our
adjudications.
A child, like an adult, may rely solely on testimony to meet his
or her burden of proof when that “testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate
that the applicant is a refugee.” Certain elements of a child’s
claim, however, such as easily verifiable facts that are central to
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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2017

UNHCR Handbook, para.
219.

Matter of S-M-J-, 21 I&N
Dec. 722, at 739 (BIA 1997)
(Rosenberg, L., concurring).

INA § 208(b)(1)(B)(ii).

INA § 208(b)(1)(B)(ii); see
Matter of S-M-J-, 21 I&N

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Dec. at 725.

the child’s claim, may require corroborating evidence. A child,
through his or her advocate or support person, is expected to
either produce such documentation or offer a reasonable
explanation as to why those documents cannot be obtained.
What is reasonable will depend on the child’s individual
circumstances, including whether or not the child is represented.
Additionally, a child who has been in contact with his or her
family may have greater access to documentation than a child
who has had no contact with family members.

See lesson, Country
Conditions Research and
the Resource Information
Center (RIC); Matter of SM-J-, 21 I&N Dec. at 726.

Given the difficulties associated with evaluating a child’s claim,
asylum officers should carefully review relevant country
conditions information. While the onus is on the child, through
his or her advocate or support person, to produce relevant
supporting material, asylum officers should also supplement the
record as necessary to ensure a full analysis of the claim.
Apart from the child’s verbal testimony, the asylum officer may
consider other evidence where available, including:
1.

2.

Testimony or affidavits from family members or members
of the child’s community.
d

h 2,

arc
on M

2017

Evidence from medical personnel, teachers, social ive
arch workers,
2686
13-7
community workers, child psychologists, and others who
o.
ns, N
have dealt with the child. v. Sessio
z
e

drigu

s-Ro

a
Bring

in
Example: A report from a child psychologist who has
cited
interviewed the child may indicate that the child suffers
from post-traumatic stress, a conclusion that could support
the asylum officer’s determination regarding past or future
persecution.

3.

Documentary evidence of persons similarly situated to the
child (or his or her group), physical evidence, and general
country conditions information.

VI. LEGAL ANALYSIS OF CLAIMS
A.

Introduction
This section will focus on the particular legal issues an asylum
officer may encounter when adjudicating the claim of a child who
has filed his or her own asylum application. This section does not
create new law or alter existing law, nor does it attempt to address
all the legal issues that may arise in adjudicating a child’s asylum
claim. Instead, it identifies particular issues relevant to children
that an asylum officer may encounter and places those issues

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Except where otherwise
cited, the information in
this section derives from
section III., Legal Analysis
of Claims, in the Children’s
Guidelines.

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within the context of United States law and UNHCR guidance.
Unlike the child who is a derivative applicant under the parent’s
application, the child who has filed a separate asylum
application must recount his or her own story, frequently without
the support of familiar adults. The child may not even fully
understand why or how the events leading to his or her arrival in
the United States came about.
In order to be granted asylum in the U.S., the child applicant must
establish that he or she meets the definition of a refugee contained
in the Immigration and Nationality Act, irrespective of age. The
UNHCR Handbook equally states, “[t]he same definition of a
refugee applies to all individuals, regardless of their age.”

INA §§ 101(a)(42)(A);
208(a)(2); UNHCR
Handbook, para. 213.

Consequently, the best interests principle, while useful for
procedural and interview considerations, does not replace or
change the refugee definition in determining substantive eligibility.
See section V.F., Evidence,
While the burden of proof remains on the child to establish his or
for more on the child’s
her claim for asylum, the asylum officer must consider the effects
burden of proof; UNHCR,
of the applicant’s age, maturity, ability to recall events, potentially
2017
2,Guidelines on Policies and
h
limited knowledge of events giving rise to the claim, and
Marc Procedures in Dealing with
d on
potentially limited knowledge of the asylum process6when e
rchiv
Unaccompanied Children
8 a
726
assessing the minor applicant’s eligibility. NThe -asylum officer
o. 13
Seeking Asylum (Geneva:
ns,
should also attempt to gather as v. Sessio
much objective evidence as
February 1997), p. 10.
uez
odrig
possible to evaluategtheRchild’s claim, to compensate for cases
sin a
where the cited in Br subjective fear or accounting of past events
applicant’s
is limited. Given the non-adversarial nature of the affirmative
asylum adjudication and the special considerations associated with
adjudicating a child’s claim, a close working relationship with the
child’s representative and support person may be necessary to
ensure that the child’s claim is fully explored.

B.

Persecution (Determining Whether the Harm Rises to the
Level of “Persecution”)
As in all asylum cases, the asylum officer must assess whether the
harm that the child fears or has suffered is serious enough to
constitute “persecution” as that term is understood under the
relevant domestic and international law.
1.

See lesson, Eligibility Part
I: Definition of Refugee;
Definition of Persecution;
Eligibility Based on Past
Persecution.

Harm that rises to the level of persecution
Given the “variations in the psychological make-up of
individuals and in the circumstances of each case,
interpretations of what amounts to persecution are bound to

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SEPTEMBER 1, 2009

UNHCR Handbook, para.
52; see also Bhabha and
Young, pp. 761-62.

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vary.” The harm a child fears or has suffered may still
qualify as persecution despite appearing to be relatively less
than that necessary for an adult to establish persecution. This
is because children, dependent on others for their care, are
prone to be more severely and potentially permanently
affected by trauma than adults, particularly when their
caretaker is harmed.
Several circuit courts have recognized that events that
occur when the applicant is a child, particularly when the
events cause serious harm to the child’s family, can
constitute persecution.

See Marina Ajdukovic and
Dean Ajdukovic,
Psychological Well-Being
of Refugee Children, 7
CHILD ABUSE AND
NEGLECT 843 (1993);
Betty Pfefferbaum,
Posttraumatic Stress
Disorder in Children: A
Review of the Past 10
Years, J. AM. ACAD.
CHILD ADOLESC.
PSYCHIATRY, 36:11, at
1504-05.

In Jorge-Tzoc v. Gonzales, the Court of Appeals for the
Second Circuit noted, “Jorge-Tzoc was a child at the time
of the massacres and thus necessarily dependent on both his
family and his community...This combination of
circumstances [displacement - initially internal, resulting
economic hardship, and viewing the bullet-ridden body of
his cousin] could well constitute persecution to a small
child totally dependent on his family and community.”

Jorge-Tzoc v. Gonzales,
435 F.3d 146, 150 (2d Cir.
2006).

7

, 201

Jorge-Tzoc’s family and other families were targeted by March 2
the
d on
Guatemalan army’s campaign against Mayan 6 archive
Indians.
268
13-7
When he was seven years old, Jorge-Tzoc’s sister, her
No.
ns,
husband, and her mother-in-lawiowere fatally shot by
Sess
z v.
e
dr u
Guatemalan soldiers.igWhile Jorge-Tzoc did not witness
s-Ro
inga
in Br
any murders, he saw many corpses, including the bulletcited
ridden body of his cousin lying on the ground. The army’s
campaign resulted in his father selling their land and the
family’s relocation to a one-room home in Quiche where
they struggled to survive. When the family returned to the
village after a year away, they found that the house was full
of bullet holes and the family’s animals were
unrecoverable.
The Seventh Circuit held in Kholyavskiy v. Mukasey that
the adjudicator should have considered the “cumulative
significance” of events to the applicant that occurred when
he was between the ages of eight and thirteen. The
applicant was subjected to regular “discrimination and
harassment [that] pervaded his neighborhood” and his
school. The harm included being regularly mocked and
urinated on by other school children for being Jewish,
being forced by his teachers to stand up and identify
himself as a Jew on a quarterly basis, and being called slurs
and being physically abused in his neighborhood.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Kholyavskiy v. Mukasey,
540 F.3d 555, 571 (7th Cir.
2008).

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Additionally, the Ninth Circuit held in Hernandez-Ortiz v.
Gonzales, “[A] child’s reaction to injuries to his family is
different from an adult’s. The child is part of the family,
the wound to the family is personal, the trauma apt to be
lasting...[I]njuries to a family must be considered in an
asylum case where the events that form the basis of the past
persecution claim were perceived when the petitioner was a
child.”

Hernandez-Ortiz v.
Gonzales, 496 F.3d 1042
(9th Cir. 2007).

Hernandez-Ortiz involved two Mayan Indian brothers from
Guatemala who fled to Mexico in 1982 at the ages of seven
and nine due to the Guatemalan army’s arrival in their
village, the beating of their father by soldiers in front of
their mother, and the flight of their brother who was later
killed by the army on suspicion of being a guerilla
sympathizer.
In a concurring opinion to Kahssai v. INS, Judge Reinhardt of Kahssai v INS, 16 F.3d
323, 329 (9th Cir. 1994)
the Ninth Circuit noted that the effects of losing one’s family
(Reinhardt, J., concurring
as a child can constitute serious harm. “The fact that she did
opinion).
not suffer physical harm is not determinative of her claim of
persecution: there are other equally serious forms of injury
7
, 201
that result from persecution. For example, when a young girlch 2
Mar
d on
loses her father, mother and brother-sees her family ive
rch
86 a
-726
effectively destroyed-she plainly suffers1severe emotional
o. 3
ns, N
and developmental injury.” . Sessio
zv
e

drigu

s-Ro

a
Bring

Whileted in should be taken into account in making the
age
ci
persecution determination, not all harm to a child, including
physical mistreatment and detention, constitutes persecution.
In Mei Dan Liu v. Ashcroft, the Seventh Circuit upheld a
finding by the BIA that harm Liu experienced at the age of
sixteen did not constitute persecution. Liu, a Chinese
national, had been forcibly taken to the Village Committee
Office and interrogated by police and pressured to confess
involvement in Falun Gong. On two occasions, police and
guards pulled her hair, causing her to cry, and pushed her to
the ground. She was detained for two days. The police
reported Liu’s arrest to her school and she was expelled.
One month later, the police searched Liu’s home and
questioned her and her mother, pushing her mother to the
floor.
In holding that the evidence did not compel a finding that
Liu suffered harm rising to the level of persecution, the
court stated, “age can be a critical factor in the adjudication
of asylum claims and may bear heavily on the question of
whether an applicant was persecuted or whether she holds a
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Mei Dan Liu v. Ashcroft,
380 F.3d 307, 314 (7th
Cir. 2004); Santosa v.
Mukasey, 528 F.3d 88, 92
(1st Cir. 2008) (upholding
the BIA’s conclusion that
Santosa did not establish
past persecution in part
because he suffered only
“isolated bullying” as a
child); cf. Xue Yun Zhang
v. Gonzales, 408 F.3d
1239 (9th Cir. 2005)
(suggesting that the
hardships suffered by
fourteen year old
applicant, including
economic deprivation
resulting from fines
against her parents, lack
of educational

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well-founded fear of future persecution…There may be
situations where children should be considered victims of
persecution though they have suffered less harm than
would be required for an adult. But this is not such a case.
Though a minor, Mei Dan was near the age of majority –
she was sixteen – at the time the events took place.
Whatever slight calibration this may warrant in our analysis
is insufficient to transform her experiences with the
Chinese authorities from harassment to persecution.”
2.

opportunities, and trauma
from witnessing her
father’s forcible removal
from the home, could be
sufficient to constitute
past persecution).

Types of harm that may befall children
The types of harm that may befall children are varied. In
Bhabha and Young, pp.
addition to the many forms of persecution adults may suffer,
760-61.
children may be particularly vulnerable to sexual assault,
forced marriage, forced prostitution, forced labor, severe
parental abuse, and other forms of human rights violations
such as the deprivation of food and medical treatment.
Cultural practices, such as female genital mutilation (FGM),
may constitute persecution. When considering whether a
cultural practice will amount to persecution, not only must
the adjudicator consider whether the harm is sufficiently
7
, 201
serious to rise to the level of persecution, but also whetherMarch 2
d on
the applicant subjectively experienced or wouldrchive
experience
86 a
26
the procedure as serious harm. For, No. 13-7 if an
example,
ns
s
individual applicant welcomed,io would welcome, FGM
. Ses or
ez v
iguright, then it is not persecution to
as an accepted as-Rodr
cultural
Bring
that applicant. Existing case law does not definitively
ed in
cit
address how to determine whether FGM imposed in the
past on a young child, who did not have the capacity to
welcome or reject the practice, constitutes past persecution.
However, since FGM is clearly serious harm objectively,
the asylum officer should consider FGM under such
circumstances as persecution unless the evidence
establishes that the child did not experience it as serious
harm. An adult applicant’s testimony about her own
subjective experience as a young child should be given
significant weight. If, for example, an adult applicant
testifies that she underwent FGM as a child but does not
consider it to have been serious harm, then it generally
would not be considered persecution. Alternatively, an
adult applicant’s testimony that she considers the FGM she
underwent as a child to be serious harm generally would
suffice to establish her subjective experience of
persecution.
Fundamental rights of children listed in the CRC that may
rise to the level of persecution if violated include the rights to

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Convention on the Rights of
the Child.

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be registered with authorities upon birth and acquire a
nationality (Art. 7.1), to remain with one’s family (Art. 9.1),
to receive an education (Art. 28), and to be protected from
economic exploitation (Art. 32). The impact of these harms
on the child must be explored in order to determine whether
the violations, considered individually or cumulatively,
amount to persecution.
3.

Identification of the Persecutor – private versus public
actors
The claims of child asylum seekers may often involve forms
of harm that have not traditionally been associated with
government actors. Harms such as child abuse, forced labor,
or criminal exploitation of children are often inflicted by nonstate actors. Where a nexus to a protected ground can be
established, the applicant must demonstrate both that the
private persecutor has the requisite motivation to persecute
and that the government is unable or unwilling to protect the
child from the alleged persecutor.

See Matter of V-T-S-, 21
I&N Dec. 792 (BIA 1997);
Matter of Kasinga, 21 I&N
Dec. 357 (BIA 1996);
Matter of Villalta, 20 I&N
Dec. 142 (BIA 1990); see
also lesson, Eligibility I:
Definition of Past
Persecution…, Section
VI.A., Identifying a
The fact that a child did not seek protection in his or her
7
, 201
rch 2 Persecutor.
country of origin does not necessarily undermine his or her
Ma
d on

case. The asylum officer must explore what,86 aany,emeans
if rchiv
726
the child had of seeking protection., No. 13Depending on the age
ns
and maturity of the child, v. Sessishe may be able to
he or o
z
rigue
contribute somespersonal knowledge of the government’s
-Rod
inga
abilitytetoin Br protection, but it is far more likely that the
offer
ci d
asylum officer will have to rely on objective evidence of
government laws and enforcement. Special attention
should be paid to the child’s ability to affirmatively seek
protection and government efforts to address criminal
activities relating to children.
C.

See lesson, Eligibility Part
II: Well-Founded Fear.

Well-founded Fear of Future Persecution
1.

General Considerations
Child-specific issues also arise in determining whether a
child has a well-founded fear of persecution. A well-founded
fear of persecution involves both subjective and objective
elements, meaning that an applicant must have a genuine fear
of persecution and that fear must be objectively reasonable.
For child asylum seekers, however, the balance between
subjective fear and objective circumstances may be more
difficult for an adjudicator to assess. The UNHCR Handbook
suggests that children under the age of sixteen may lack the
maturity to form a well-founded fear of persecution, thus

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Matter of Acosta, 19 I&N
Dec. 211, 224 (BIA 1985);
Matter of Mogharrabi, 19
I&N Dec.439, 446 (BIA
1987); see also lesson,
Eligibility II: WellFounded Fear of
Persecution.
UNHCR Handbook, para.
215.

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requiring the adjudicator to give more weight to objective
factors. “Minors under 16 years of age...may have fear and a
will of their own, but these may not have the same
significance as in the case of an adult.” All asylum officers
must evaluate the ability of a child to provide information “in
the light of his [or her] personal, family and cultural
background.”
The Sixth Circuit, in Abay v. Ashcroft, acknowledged the
Children’s Guidelines’ reference to the UNHCR Handbook
on the subject of a child’s subjective fear. In Abay, the
Sixth Circuit court overturned an Immigration Judge’s
finding that the nine-year-old applicant expressed only a
“general ambiguous fear,” noting that young children may
be incapable of articulating fear to the same degree as
adults.

UNHCR Handbook, para.
216.

Abay v. Ashcroft, 368
F.3d 634, 640 (6th Cir.
2004).

Cruz-Diaz v. INS, 86 F.3d
330, 331 (4th Cir. 1996)
On the other hand, a child may express a subjective fear
(per curiam).
without an objective basis. In Cruz-Diaz v. INS, the Fourth
Circuit noted that the seventeen-year-old petitioner who had
entered the U.S. two years prior had a subjective fear of
persecution but had not established an objectively
7
, 201
reasonable fear with a nexus to one of the protected on March 2
ed
grounds.
rchiv
86 a
-726

o. 13

2.

Personal circumstances

uez

drig
s-Ro

s, N
ssion

v. Se

inga
in Br
officers

Asylumd
should examine the circumstances of the
cite
parents and other family members, including their situation in
the child’s country of origin.
a.

UNHCR Handbook, para.
218.

family as similarly situated
Asylum officers may be able look to the child’s family
as individuals similarly situated to the applicant. A
well-founded fear of persecution may be supported by
mistreatment of a child’s family in the home country.
The First Circuit Court of Appeals concluded that
evidence of mistreatment of one’s family is probative of
a threat to the applicant. Conversely, if the child’s
family does not relocate and is not harmed, the
likelihood of an objectively reasonable fear may be
reduced. The failure to relocate may nonetheless be
overcome when it is due to a parent’s conflict of interest
rather than a decreased threat to the child. Where there
appears to be a conflict of interest between the child and
the parents, the asylum officer “will have to come to a
decision as to the well-foundedness of the minor’s fear

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

Ananeh-Firempong v. INS,
766 F.2d 621, 626 (1st Cir.
1985); see also UNHCR
Handbook, para. 43; Matter
of A-E-M-, 21 I&N Dec.
1157 (BIA 1998).
Bhabha and Young, at 764.

UNHCR Handbook, para.
219.

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on the basis of all the known circumstances, which may
call for a liberal application of the benefit of the doubt.”
b.

the family’s intentions
If the child was sent abroad by his or her parents or
family members, the circumstances of that departure are
relevant to the child’s asylum application. “If there is
reason to believe that the parents wish their child to be
outside the country of origin on grounds of wellfounded fear of persecution...,” that may suggest that
the child has such a fear as well. On the other hand, a
family’s actions toward a child – abandonment,
neglect, or selling a child into slavery – may support a
child’s fear of persecution at the hands of relatives.

c.

UNHCR Handbook, para
218.

the child’s arrival
The circumstances of a child’s arrival in the United
See 8 C.F.R. §
States may provide clues as to whether the child has a
208.13(b)(2); UNHCR
well-founded fear of persecution. If the child arrives in
Handbook, para. 217.
the company of other asylum seekers who have been
found to have a well-founded fear of persecution, this rch 2, 2017
n Ma
may, depending on the circumstances, help tohestablish
ed o
rc iv
that the child’s fear is well-founded.3-72686 a
1

3.

Internal Relocation driguez

.

, No

ions

ss
v. Se

o

as-R

ing
in Br

cited
generally

It is
not reasonable to expect a child to internally
relocate by himself or herself; however, asylum officers
should examine whether circumstances show that internal
relocation would be reasonable.

D.

Cf. Lepe-Guitron v. INS, 16
F.3d 1021, 1025 (9th Cir.
1994) (finding that
petitioner’s 7-year period of
lawful unrelinquished
domicile, for purposes of a
discretionary waiver of
deportation, began on the
date his parents attained
permanent resident status,
as he was a child at the
time).

Nexus to a Protected Characteristic
Regardless of the nature or degree of harm the child fears or has
suffered, that harm must be tied to one of the protected grounds
contained in the definition of a refugee. Children, like adults, may
raise one or more protected grounds as the basis for an asylum
claim. The asylum officer must explore all possible grounds for
asylum and should take into account the age and relative maturity
of the child in assessing the child’s ability to articulate his or her
claims.

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The Children’s Guidelines look briefly at the protected grounds
in general and then turn to an analysis of membership in a
particular social group, because claims based on this ground are
frequently novel and analytically complicated.
1.

Burden of proof
The burden falls to the child to establish that he or she
belongs, or is perceived to belong, to the protected group on
account of which he or she has suffered or fears suffering
persecution. Because children may lack, or have limited
access to, the necessary documents to establish their identity
with respect to one of the protected grounds, the asylum
officer may have to rely solely on testimony of the child to
establish these elements.
See Matter of S-M-J-, 21

Although the Board has issued several opinions that
I&N Dec. 722 (BIA 1997);
emphasize an applicant’s burden to produce all accessible
Matter of Dass, 20 I&N
documents, testimony alone can be sufficient to establish a
Dec. 120 (BIA 1989).
INA § 208(b)(1)(B)(ii); 8
claim where the applicant credibly testifies that he or she is
C.F.R. § 208.13(a); see
unable to procure documents. This distinction may be
also section VI.F.
particularly important in analyzing a child’s claim,
2017
2,Evidence, below and lesson
h
particularly if the child has no legal representation.
Marc Eligibility IV: Burden of
on
o.
ns, N

2.

d

hive

6 arc

268
13-7

Proof and Evidence.

ssio

Inability to articulateigunexuseto a protected characteristic
a ez v. S
odr

as-R

ing
in Br

Analyzing whether the applicant has established a nexus to a
cited
protected characteristic in an asylum claim made by a child
may be particularly difficult because a child may express fear
or have experienced harm without understanding the
persecutor’s intent. A child’s incomplete understanding of
the situation does not necessarily mean that a nexus between
the harm and a protected ground does not exist.
Because more than one factor may motivate a persecutor to
inflict harm, an applicant is not required to establish that the
persecutor is motivated solely by a desire to overcome the
protected characteristic. When the child is unable to identify
all relevant motives, a nexus can still be found if the
objective circumstances support the child’s claim that at least
one central reason for the past or future persecution is a
protected ground.
3.

Matter of Fuentes, 19 I&N
Dec. 658, 662 (BIA 1988).
INA § 208(b)(1)(B)(i);
Matter of J-B-N- & S-M-,
24 I&N Dec. 208 (BIA
2007); Matter of S-P-, 21
I&N Dec. 486 (BIA 1996).

No requirement for punitive intent
The inherent vulnerability of children often places them at
the mercy of adults who may inflict harm without viewing it

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as such, sometimes to such a degree of severity that it may
constitute persecution. The Board of Immigration Appeals
has held that a punitive or malignant intent is not required for
harm to constitute persecution on the basis of a protected
ground. A persecutor may believe that he or she is helping
the applicant by attempting to overcome the protected
characteristic.

Matter of Kasinga, 21 I&N
357 (1996); Pitcherskaia v.
INS, 118 F.3d 641 (9th Cir.
1997).

Consequently, it is possible that a child’s claimed harm may
arise from a culturally accepted practice within his or her
community. In such cases, an adjudicator must look
carefully at both the degree of harm and whether any of the
reasons for inflicting the harm involve a protected ground.
4.

Inability to articulate a political opinion
When a child claims persecution or a well-founded fear of
persecution on the basis of political opinion, the age and
maturity of the child must be taken into account. A young
child may have difficulty articulating a political opinion.
Because the level of children’s political activity varies widely
among countries, however, asylum officers should not
7
, 201
assume that age alone prevents a child from holding politicalrch 2
Ma
n
ed o
opinions for which he or she may have been or6willhibe
rc v
8 a
726
. 13persecuted.
s, No
v.
guez

ion

Sess

In Civil v. INS, as-Rodri Circuit affirmed the Board’s holding
the First
ing
that the d in Br applicant failed to establish a well-founded
e young
cit
fear of persecution based on either political opinion or
membership in a social group consisting of “Haitian youth
who possess pro-Aristide political views.” Although the
court found sufficient grounds to affirm the underlying
decision, it criticized the Immigration Judge’s conclusion that
“it is almost inconceivable to believe that the Ton Ton
Macoutes could be fearful of the conversations of 15-yearold children,” noting that the evidence submitted by the
petitioner cast serious doubts on the presumption that youth
“are unlikely targets of political violence in Haiti.”
Similarly, in Salaam v. INS, the Ninth Circuit overturned a
BIA ruling of adverse credibility where the BIA held it was
implausible that the petitioner had been vice president of a
branch of an opposition movement at the age of eighteen.
It may also be possible for a child’s claim to be based on
imputed political opinion. The adjudicator should carefully
review the family history of the child and should explore as
much as possible the child’s understanding of his or her
family’s activities to determine whether the child may face
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Civil v. INS, 140 F.3d 52
(1st Cir. 1998).

Salaam v. INS, 229 F.3d
1234 (9th Cir. 2000) (per
curiam).

Matter of S-P-, 21 I&N Dec.
486 (BIA 1996); see
Garcia-Martinez v.
Ashcroft, 371 F.3d 1066,
1076 (9th Cir. 2004)
(evidence that every family

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persecution based on the imputed political beliefs of family
members or some other group with which the child is
identified.

5.

in a Guatemalan village
lost a male member to the
guerrillas and that the
military raped a woman
every eight to fifteen days,
based on the mistaken
belief that the villagers had
voluntarily joined the
guerrillas, compelled a
finding that the applicant’s
rape by soldiers was on
account of a political
opinion imputed to her).

Membership in a particular social group
In order to establish eligibility for asylum based on
membership in a particular social group, an applicant must
Matter of C-A-, 23 I&N
establish that the group constitutes a particular social group
Dec. 951 (BIA 2006);
within the meaning of the refugee definition; that the
Matter of Acosta, 19 I&N
applicant is a member or is perceived to be a member of that
Dec. 211, 233 (BIA 1985).
group; and that the persecutor was or will be motivated to
Note: Because caselaw on
target the applicant on account of that membership or
particular social group
perceived membership in the particular social group. There
continues to evolve, it will
is a two-prong test for evaluating whether a group constitutes h 2,not1be discussed in this
20 7
rc
Ma
a particular social group. First, the group must comprise
d on
lesson. See lesson, Nexus,
hive
8 characteristic
individuals who share a common, immutable 6 arc
section VI, Membership in
726
13– such as sex, color, kinship ties,nor No. experience – that
s, past
a Particular Social Group,
ssio
v Se
including the subsection on
members cannot change zor. a characteristic that is so
e
drigu
age as a characteristic.
s-Romember’s identity or conscience that he
fundamentalingathe
to
Br
ed in
ci
or shet should not be required to change it. Second, the
group must be recognizable and distinct in the society.
Issues of social group that are likely to arise in a child’s
asylum claim include social groups defined by family
membership, social groups defined in whole or in part by
age, and social groups defined in whole or in part by gender.
The question of whether the group with which the child
applicant identifies himself or herself can be considered a
particular social group for the purpose of asylum eligibility
will be analyzed in the same manner as with adults.

E.

Child-Specific Considerations Concerning Bars to Applying
for or Eligibility for Asylum
1.

One-Year Filing Deadline
The TVPRA amended the INA to state that the one-year
filing deadline does not apply to unaccompanied alien
children. As of the TVPRA’s effective date of March 23,
2009, when an asylum officer determines that a minor

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

See INA § 208(a)(2)(E);
TVPRA, P.L. 110-457, §
235(d)(7)(A). For more
details, see lesson, One-

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principal applicant is unaccompanied, the asylum officer
should forego the one-year filing deadline analysis and
conclude that the one-year filing deadline does not apply.
The one-year filing deadline continues to be applicable for
accompanied minor principal applicants (those with a
parent or legal guardian) and for adult principal applicants.
Additionally, as the unaccompanied alien child definition
includes the element that the child not have lawful
immigration status, the one-year filing deadline must still
be analyzed for in-status unaccompanied minors.

Year Filing Deadline.

See section IV.D.2.,
Definition of Minor
Principal,
Unaccompanied Minor,
and Unaccompanied Alien
Child, above.

Accompanied minors and in-status unaccompanied minors
may qualify for the extraordinary circumstances exception
8 C.F.R. § 208.4(a)(5).
to the one-year filing deadline based on legal disability.
While unaccompanied minors are specifically listed in the
regulations as an example of a category of asylum
applicants that is viewed as having a legal disability that
constitutes an extraordinary circumstance for the purposes
of the one-year filing deadline, the circumstances that may
constitute an extraordinary circumstance are not limited to
the examples listed in the regulations. The same logic
underlying the legal disability ground listed in the
7
, 201
regulations also is relevant to accompanied minors: minors,ch 2
Mar
n
ed o
whether accompanied or not, are generally dependent on
rchiv
86 a
-726
adults for their care and cannot bes,expected to navigate
o. 13
n N
adjudicatory systems in z v. Sessio manner as adults.
the same
e

drigu

s-Ro

a
Bring

in
As long as an accompanied minor applicant applies for
cited
asylum while still a minor (while the legal disability is in
effect), the applicant should be found to have filed within a
reasonable period of time.

In Matter of Y-C-, petitioner, an unaccompanied fifteen
year old, attempted to file an asylum application with an
Immigration Judge five months after being released from
over a year in immigration custody. The Immigration
Judge refused to accept the application, but the petitioner
successfully filed a second application within one year of
being released from custody. The BIA found that the
petitioner had established extraordinary circumstances
because “he did not, through his own action or inaction,
intentionally create these circumstances, which were
directly related to his failure to meet the filing deadline.”
Note that this case was decided before the TVPRA’s
amendment to the INA to exclude unaccompanied minors
from the one-year filing deadline took effect.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Matter of Y-C-, 23 I&N
Dec. 286, 288 (BIA
2002).

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2.

Safe Third Country
As of March 23, 2009, the provision in the INA that allows
an individual to be barred from applying for asylum based
on a safe third country agreement cannot be applied to an
unaccompanied alien child. The Safe Third Country
Agreement between the U.S. and Canada, currently the
only safe third country agreement between the U.S. and
another country, already has an exception for
unaccompanied minors. Even if future safe third country
agreements are created, INA § 208(a)(2)(E), as created by
the TVPRA, does not permit a safe third country agreement
to apply to unaccompanied alien children.

See INA § 208(a)(2)(E);
TVPRA, P.L. 110-457, §
235(d)(7)(A). See also
INA § 208(a)(2)(A);
lesson, Safe Third Country
Threshold Screening.

3.

8 CFR § 208.15; Matter of
Ng, 12 I&N Dec 411 (BIA
1967) (holding that a
In interpreting whether a child is firmly resettled under 8
CFR § 208.15, asylum officers should consider that a child’s minor was firmly resettled
status in a third country will generally be the same as his or in Hong Kong because he
her parent’s. The BIA has long held that a parent’s status is was part of a family that
resettled in Hong Kong);
imputed to his or her children. The Ninth Circuit looks to
Matter of Hung, 12 I&N
2017
“whether the minor’s parents have firmly resettled in a arch 2,Dec. 178 (BIA 1967)
M
d on
foreign country before coming to the United States,eand then (holding that because
rchiv
86 a
derivatively attribute[s] the parents’ status 2to the minor.”
-7 6
parents were not firmly
o. 13
ns, N
ssio
resettled in Hong Kong,
v. Se
uez
the minor child also was
odrig
as-R
not firmly resettled
Bring
in
cited
there);Vang v. INS, 146
F.3d 1114, 1116 (9th Cir.
1998) (holding that the
parents’ status is
attributed to the minor
when determining
whether the minor has
firmly resettled in another
country).

4.

Serious Nonpolitical Crime

Firm Resettlement

The Child Soldiers Accountability Act of 2008 (CSAA),
which was signed into law and became effective on
October 3, 2008, creates both criminal and immigration
prohibitions on the recruitment or use of child soldiers.
Specifically, the CSAA establishes a ground of
inadmissibility at section 212(a)(3)(G) of the INA and a
ground of removability at section 237(a)(4)(F) of the INA.
These parallel grounds set forth that “[a]ny alien who has
engaged in the recruitment or use of child soldiers in
violation of section 2442 of title 18, United States Code” is
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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Child Soldiers
Accountability Act of
2008 (CSAA), P.L. 110340 (Oct. 3, 2008). See
also Lori Scialabba and
Donald Neufeld, USCIS.
Initial Information
Concerning the Child
Soldiers Accountability
Act, Public Law No. 110340, Memorandum to

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inadmissible and is removable.
The statute also requires that DHS and DOJ promulgate
regulations establishing that an alien who is subject to these
grounds of inadmissibility or removability “shall be
considered an alien with respect to whom there are serious
reasons to believe that the alien committed a serious
nonpolitical crime,” and is therefore ineligible for asylum
pursuant to INA section 208(b)(2)(A)(iii). The regulations
are pending publication. In the interim, the Congressional
intent in enacting the CSAA, as well as the nature of the
serious crime of the use of child soldiers, should be
considered in determining whether an applicant is subject
to the serious nonpolitical crime bar. Note that the statute
does not exempt children from the applicability of this
ground.

Field Leadership
(Washington, DC: 31
December 2008).
CSAA, sec. 2(b)-(c).
CSAA, sec. 2(d)(1). See
also lesson, Mandatory
Bars to Asylum and
Discretion.

VII. DERIVATIVE ASYLUM STATUS FOR CHILDREN
A.

Derivative Status versus Independent Status
Under DHS regulations, the child of an asylee is usually afforded
8 C.F.R. § 208.21(a). See
2017
the same status as his or her parent as a child accompanying or March 2,also Lepe-Guitron v. INS,
d on
16 F.3d 1021, 1025 (9th
following to join the principal applicant.
hive
6 arc
o.
ns, N

268

13-7

While derivative status is statutorily ssio
. Se available to children and
ez v
spouses, there is no statutoryuor regulatory right of parents to be
odrig
as-R
Bring
eligible for iderivative status in the asylum context. The asylum
ed in
ct
applicant must establish eligibility in his or her own right.
B.

Cir. 1994); Vang v. INS,
146 F.3d 1114 (9th Cir.
1998).

Matter of A-K-, 24 I&N
Dec. 275 (BIA 2007).

Children Who Turn 21 Years of Age Before the Asylum
Interview
Under the INA, as amended by the Child Status Protection Act of
2002 (CSPA), on or after August 6, 2002, an unmarried child of a
principal applicant granted asylum may receive a derivative grant
of asylum so long as the child was under twenty-one years of age
at the time of filing the asylum application. Therefore, children
who turn twenty-one years of age after the date of filing, but
before the adjudication are still considered eligible for derivative
asylum status.
Note that there is no requirement that the child have been included
as a dependent on the principal applicant’s asylum application at
the time of filing, only that the child be included prior to the
adjudication.

INA § 208(b)(3) as
amended by the Child Status
Protection Act of 2002, P.L.
107-208. See also Joseph
E. Langlois, Director,
Asylum Division, Office of
International Affairs. H.R.
1209 – Child Status
Protection Act,
Memorandum to Asylum
Office Directors, et al.
(Washington, DC: 7
August 2002), 2 pp., plus
attachment.

If, however, an individual turned twenty-one prior to August 6,
William Yates, USCIS
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2002, he or she is not eligible for continued classification as a
child unless the asylum application was pending on August 6,
2002.

C.

Associate Director for
Operations. The Child
Status Protection Act –
Children of Asylees and
Refugees, Memorandum to
Regional Directors, et al.
(Washington, DC: 17
August 2004), pp.1-2;
Michael Petrucelli, BCIS
Deputy Director and Chief
of Staff. Processing
Derivative Refugees and
Asylees under the Child
Status Protection Act,
Memorandum to Overseas
District Directors
(Washington, DC: 23 July
2003).

Children Who Turn 21 Years of Age Before Adjustment
INA § 209(b)(3) as
The CSPA also amends INA section 209(b)(3) to allow
amended by the Child Status
dependents who are the subjects of pending adjustment petitions
Protection Act of 2002, P.L.
who turn twenty-one on or after August 6, 2002, to continue to be
107-208.
017
classified as children for adjustment purposes (in order not to needrch 2, 2
Ma
on
to file an independent petition).
ived
arch
o.
ns, N

2686

13-7

io
As noted above, if an individual. turned twenty-one prior to
Sess
ez v
igunot eligible for continued
August 6, 2002, he or -sheris
od
as R
classification asBring
a child unless an application was pending with
in
cited
then-INS on August 6, 2002. While the Domestic Operations
Directorate of USCIS recently issued revised guidance on the
CSPA for family and employment-based petitions, which
eliminated the requirement for a pending application on the
CSPA effective date, this guidance memo does not apply to
applications for children of asylees and refugees. As a result, a
dependent who turned twenty-one years of age and whose
principal’s adjustment petition was adjudicated prior to the
enactment of the CSPA lost his or her ability to adjust as a
dependent of the principal applicant. While he or she did not lose
the asylum status already granted,, the former derivative does not
gain the ability to adjust to legal permanent resident status as a
principal applicant. In such situations, a nunc pro tunc (retroactive
approval) procedure is permitted, although the need for such an
adjudication will become increasingly rare as more time passes.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

See William Yates, USCIS
Operations. The Child
Status Protection Act –
Children of Asylees and
Refugees, Memorandum;
Michael Petrucelli, BCIS.
Processing Derivative
Refugees and Asylees
under the Child Status
Protection Act,
Memorandum.
See Donald Neufeld,
Acting Associate Director,
USCIS Domestic
Operations. Revised
Guidance for the Child
Status Protection Act
(CSPA) AFM Update:
Chapter 21.2(e),
Memorandum (Apr. 2008).
See USCIS Asylum
Division, Affirmative
Asylum Procedures
Manual; “INS Discusses
Adjustment of Status Issues
For Children of Asylees,”
69 Interpreter Releases 847

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(1992).

VIII.

OTHER IMMIGRATION STATUSES AVAILABLE TO
CHILDREN
A.

Special Immigrant Juvenile Status
Special Immigrant Juvenile (SIJ) status provides legal permanent
INA § 101(a)(27)(J).
residency under certain conditions to unmarried alien children
present in the U.S. who are under 21 years of age. First, a
juvenile must be declared dependent on a state juvenile court or
legally committed to, or placed under the custody of, an agency
or department of a state, and the juvenile court must find the
child’s reunification with one or both of his or her parents not
viable “due to abuse, neglect, or abandonment” and must
determine that “it would not be in the alien’s best interest to be
returned to the alien’s or parent’s previous country of nationality
or country of last habitual residence.” Second, the Department
of Homeland Security must consent to the grant of SIJ status. In
cases where the child is in the custody of Health and Human
Services (HHS), the Secretary of HHS must specifically consent
to juvenile court jurisdiction to determine the custody status or
placement of an alien. Because SIJ status is designed to protect rch 2, 2017
a
children abandoned, neglected, or abused by their parents d on M
e or
rchiv
a
guardians, the child may never sponsor his or3her6natural or
2 86
1 -7
No.
ns,
adoptive parents for any family immigration status.
essio
uez

drig
s-Ro

v. S

inga
B. Victims of Trafficking or Criminal Activity
in Br
cited

The T visa is available to aliens present in the U.S. who have
been the victims of a severe form of trafficking in persons,
who are physically present in the U.S. on account of such
trafficking, and who “would suffer extreme hardship
involving unusual and severe harm upon removal.” Aliens
must comply with governmental requests for assistance in
investigation or prosecuting the acts of trafficking, though
persons under the age of 18 are exempt from this obligation.
After three years of continuous presence from the date of
admission as a nonimmigrant, the T visa holder may adjust
status.
The U visa is available to aliens who have “suffered substantial
physical or mental abuse as a result of having been a victim” of
qualifying criminal activity, which violated U.S. law or occurred
in the U.S. The person must possess information related to the
criminal activity and aid or be likely to aid in the investigation or
prosecution of the criminal activity. Where the person is under
16 years of age, a parent, guardian, or next friend may possess
information and aid in the investigation or prosecution, in the
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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INA § 101(a)(15)(T)(i).

INA § 101(a)(15)(U)(i).
See USCIS Adjudicator’s
Field Manual, chapter 39,
for further details.

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place of the child under 16. A U visa holder may adjust status
after three years of continuous presence from the date of
admission as a nonimmigrant.
IX.

SUMMARY
A.

International Guidance
Considering that the issue of children asylum-seekers is
relatively new in U.S. immigration law, asylum officers may
have to look to international law for guidance when binding U.S.
caselaw does not speak to the relevant issue. International
instruments such as the Universal Declaration of Human Rights,
the Convention on the Rights of the Child, and several UNHCR
Executive Committee Conclusions and UNHCR published
policies provide insight regarding how to handle asylum claims
presented by children. Most importantly, these documents
highlight the need for particular attention to issues involving
refugee minors.

B.

Child Development
017

Asylum officers interviewing children must recognize that a March 2, 2
n
ed o
child’s stage of development can affect the asylum6interview –
rchiv
8 a
7 6
both in tone and content. Children who are. in -a2younger stage of
o 13
ns, N
io
development may not be able to. recall facts or analyze issues as
Sess
zv
igue or adults. Furthermore, children’s
well as more mature children
odr
as-R
perceptionsteofin Brinworld will not conform to those of most adults
the g
ci d
and could create an obstacle to a smooth interview.
C.

Procedural Considerations
In order to address the unique situation of child asylum-seekers,
asylum officers must make adjustments to their interviews and
interview style to facilitate the process. Procedural adjustments
made at the asylum office include allowing the child to be
interviewed by an officer with relevant experience and
scheduling the interviews of family members – especially
siblings – as close in time as possible.
Other procedural considerations necessary in children’s cases
include determining whether or not the minor applicant is
unaccompanied and answering the unaccompanied minor field in
RAPS, sending all juvenile cases to HQASM for quality
assurance review, determining a minor’s capacity to apply for
asylum, and evaluating any conflicts between a minor’s and
parents’ interests in the asylum application.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
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ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

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D.

Interviewing Considerations
In order to create a child-friendly atmosphere, asylum officers
must attempt to build a rapport with the child, “read” the child
applicant for any sign of anxiety, and guide the child through the
interview process. Questions should be posed with the child’s
mental development and maturity in mind. Whenever possible,
officers must accommodate child applicants who would like a
trusted adult to be present during the interview. Asylum officers
should ask questions concerning the child’s guardianship and
parental consent to and knowledge of the asylum application.
While these questions usually do not affect substantive
eligibility, they are nonetheless important for evaluating the
child’s care and custody situation.
Because children are less likely than adults to be able to
articulate their claim and obtain supporting documents, asylum
officers may be required to consider more sources of information
to evaluate the objective merit of the claim. This includes taking
testimony from other individuals, looking to documentary
evidence of individuals similarly situated to the applicant, and
taking into account the amount of information that a child of that
2017
h 2,
age can be expected to know and recall.
Marc
on
d

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6 arc

268
13-7

Children, as adults, are not required to provide corroborating
o.
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evidence and may rely solely z v. Sessio
on testimony when the testimony
ue
is credible. However,-Rodrig
s children cannot be expected to present
inga
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testimonycwithn the same degree of consistency or coherency as
ited
adults, and asylum officers must consider children’s
development levels and emotional states when evaluating their
testimony. The lack of supporting documents and inability of a
child to articulate clearly a claim to asylum demand that asylum
officers thoroughly research conditions in the countries of origin
and first asylum when evaluating a child’s case.
E.

Legal Analysis
The definition of a refugee contained in the INA applies to all
individuals regardless of their age. Although children do not
enjoy a lessened standard for asylum eligibility, there are
considerations that must be made when analyzing children’s
claims. First, the harm that a child suffered or fears may rise to
the level of persecution even when the same harm claimed by an
adult would not be considered persecution. Second, though the
child may be able to express a subjective fear of persecution, he
or she might not be able to articulate the objective reasons for
that fear. Third, an examination into the circumstances in which
a child finds himself or herself – how he or she came to the U.S.,

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

52

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Participant Workbook

the location of his or her relatives, or the harm that has befallen
his or her parents, for example – may reveal facts that support
the child’s asylum claim.
A child’s inability to understand all of the circumstances
surrounding his or her flight creates difficulty in analyzing the
nexus of the harm or fear of harm to a protected ground.
Officers must pay close attention to the objective facts
surrounding the child’s claim to determine if there is a nexus
regardless of the child’s ability to articulate one. Many claims
raised by children will be on account of membership in a
particular social group. The body of caselaw that discusses the
issue of particular social group applies to children just as it does
to adults.
Other legal issues that may involve child-specific considerations
include the application of some of the bars to asylum. As of
March 23, 2009, the one-year filing deadline does not apply to
unaccompanied alien children. Minors accompanied by a parent
or legal guardian must still comply with the one-year filing
deadline, though they may qualify for an extraordinary
circumstance exception based on legal disability. Similarly, as
7
, 201
of March 23, 2009, any safe third country agreement cannot n March 2
do
apply to unaccompanied alien children. In regards6torchive
firm
8 a
26
resettlement, a parent’s status is generally o. 13-7 to the parent.
imputed
ns, N
Finally, in regards to the serious. Sessio
v nonpolitical crime bar, the
uez
odrig
Child Soldiers Accountability Act of 2008 set forth that any
as-R
Bring
alien whocengaged in the recruitment or use of child soldiers is
ed in
it
considered barred for having committed a serious nonpolitical
crime.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

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ANNEX I
SAMPLE OPENING STATEMENT FOR CHILDREN1
I am glad that you are here today, and that your friend Mr. (Ms.) [name of support person, if any] is
here with you. Do you know what we are going to do today? We are going to talk about why you left
[name of country of origin], and why you may not want to go back there. As we talk, you and I both
have jobs to do. My job is to understand what happened to you. But I need your help. Your job is to
help me to understand by telling me as much as you can remember – even the little things.
I will be asking you some questions today. Some questions will be easy for you to answer. But you
may not understand other questions. It is OK if you do not understand a question. Just tell me that you
do not understand and I will ask the question differently. But please do not guess at an answer or make
an answer up.
If you do not know the answer to the question, that is OK too. Just tell me that you don’t know the
answer. No one can remember everything. There are no “right” or “wrong” answers to any of my
questions.
As we talk today, I will write down what we say because what you tell me is important. Do not get
nervous about my taking notes. Later, if I forget what we said, I can look it up.
7

, 201

2
arch
I understand that you may be nervous or scared to tell me about what happened to you. I will not tell
on M
ived
anyone in [name of country of origin] about what you tell me6today. Also, none of your friends or
arch
7268
. 13family here in the United States will know anythingNabout what you tell me, unless you write a special
, o
ions
ssthem.
letter that allows me to share information vwith
Se
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e

drigu

s-Ro

a
Bring

in
Before we start, do youdhave any questions that you would like to ask me? Or is there anything that
cite
you want to tell me? If you think of something while we are talking, let me know. If you have to go to
the bathroom or want to stop for a while, also let me know.

1

The sample Opening Statement is intended for young children, and may be modified for older children, depending on their
developmental stage and level of sophistication.
US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION
SEPTEMBER 1, 2009

ASYLUM OFFICER BASIC TRAINING COURSE
GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS

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Distr.
GENERAL
HCR/GIP/09/08
Date: 22 December 2009
Original: ENGLISH

GUIDELINES ON INTERNATIONAL PROTECTION:
Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or
1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute
of the Office of the United Nations High Commissioner for Refugees, 1in conjunction
0 7
with Article 35 of the 1951 Convention relating to the Status ofMarch 2, 2 and Article II
Refugees
n
ed o
of its 1967 Protocol. These Guidelines complementhivthe UNHCR Handbook on
rc
86 a
726Status under the 1951 Convention
Procedures and Criteria for Determining Refugee
o. 13
ns, N
and the 1967 Protocol relating to the sStatus of Refugees (Reedited, Geneva, January
e sio
v. S
1992).
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cited
Guidelines

as-R
Bring

These
are intended to provide legal interpretative guidance for
governments, legal practitioners, decision makers and the judiciary, as well as UNHCR
staff carrying out refugee status determination in the field.

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Table of Contents

I.
II.
III.

IV.

INTRODUCTION ................................................................................................... 3
DEFINITIONAL ISSUES ....................................................................................... 5
SUBSTANTIVE ANALYSIS .................................................................................. 6
a)
Well-founded fear of persecution ............................................................. 6
Child-specific rights ...................................................................................... 8
Child-related manifestations of persecution ................................................. 8
Child-specific forms of persecution .............................................................. 9
b)
Agents of persecution ............................................................................. 16
c)
The 1951 Convention grounds................................................................ 17
Race and nationality or ethnicity ................................................................ 17
Religion ...................................................................................................... 17
Political opinion .......................................................................................... 18
Membership of a particular social group .................................................... 18
d)
Internal “flight” or “relocation” alternative ........................................... 20
e)
The application of exclusion clauses to children ................................. 22
PROCEDURAL AND EVIDENTIARY ISSUES ................................................... 25

cited

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2686
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2017

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Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention
and/or 1967 Protocol relating to the Status of Refugees

I.

INTRODUCTION

1.
These Guidelines offer substantive and procedural guidance on carrying out
refugee status determination in a child-sensitive manner. They highlight the specific
rights and protection needs of children in asylum procedures. Although the definition of
a refugee contained in Article 1(A)2 of the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol (hereafter “1951 Convention” and “1967 Protocol”)
applies to all individuals regardless of their age, it has traditionally been interpreted in
light of adult experiences. This has meant that many refugee claims made by children
have been assessed incorrectly or overlooked altogether. 1
2.
The specific circumstances facing child asylum-seekers as individuals with
independent claims to refugee status are not generally well understood. Children may
be perceived as part of a family unit rather than as individuals with their own rights and
interests. This is explained partly by the subordinate roles, positions and status children
still hold in many societies worldwide. The accounts of children are more likely to be
examined individually when the children are unaccompanied than when they are
accompanied by their families. Even so, their unique experiences of persecution, due
to factors such as their age, their level of maturity and development and their
2017
dependency on adults have not always been taken into account.rch 2,
Children may not be
n Ma
o
able to articulate their claims to refugee status in arthe ed
hiv same way as adults and,
6 c
7268
therefore, may require special assistance to do13o. so.
s, N
ssion
v. Se
3.
Global awarenessRodriguez violence, abuse and discrimination experienced by
about
aschildren is growing, 2 inas is reflected in the development of international and regional
Br g
in
cited

human rights standards. While these developments have yet to be fully incorporated
into refugee status determination processes, many national asylum authorities are
increasingly acknowledging that children may have refugee claims in their own right. In
Conclusion on Children at Risk (2007), UNHCR’s Executive Committee underlines the
need for children to be recognized as “active subjects of rights” consistent with
international law. The Executive Committee also recognized that children may
experience child-specific forms and manifestations of persecution. 3
4.
Adopting a child-sensitive interpretation of the 1951 Convention does not mean,
of course, that child asylum-seekers are automatically entitled to refugee status. The

1

2

3

UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum, Geneva, 1997 (hereafter “UNHCR, Guidelines on Unaccompanied Children Seeking Asylum”),
http://www.unhcr.org/refworld/docid/3ae6b3360.html, in particular Part 8.
See, for instance, UN General Assembly, Rights of the Child: Note by the Secretary-General, A/61/299,
29
Aug.
2006
(hereafter
“UN
study
on
violence
against
children”)
http://www.unhcr.org/refworld/docid/453780fe0.html; UN Commission on the Status of Women, The
elimination of all forms of discrimination and violence against the girl child, E/CN.6/2007/2, 12 Dec.
2006, http://www.unhcr.org/refworld/docid/46c5b30c0.html; UN General Assembly, Impact of armed
conflict on children: Note by the Secretary-General (the “Machel Study”), A/51/306, 26 Aug. 1996,
http://www.unhcr.org/refworld/docid/3b00f2d30.html, and the strategic review marking the 10 year
anniversary of the Machel Study, UN General Assembly, Report of the Special Representative of the
Secretary-General
for
Children
and
Armed
Conflict,
A/62/228,
13
Aug.
2007,
http://www.unhcr.org/refworld/docid/47316f602.html.
ExCom, Conclusion on Children at Risk, 5 Oct. 2007, No. 107 (LVIII) - 2007, (hereafter “ExCom,
Conclusion No. 107”), http://www.unhcr.org/refworld/docid/471897232.html, para. (b)(x)(viii).

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child applicant must establish that s/he has a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political
opinion. As with gender, age is relevant to the entire refugee definition. 4 As noted by
the UN Committee on the Rights of the Child, the refugee definition:
… must be interpreted in an age and gender-sensitive manner, taking into
account the particular motives for, and forms and manifestations of, persecution
experienced by children. Persecution of kin; under-age recruitment; trafficking
of children for prostitution; and sexual exploitation or subjection to female
genital mutilation, are some of the child-specific forms and manifestations of
persecution which may justify the granting of refugee status if such acts are
related to one of the 1951 Refugee Convention grounds. States should,
therefore, give utmost attention to such child-specific forms and manifestations
of persecution as well as gender-based violence in national refugee statusdetermination procedures. 5
Alongside age, factors such as rights specific to children, a child’s stage of
development, knowledge and/or memory of conditions in the country of origin, and
vulnerability, also need to be considered to ensure an appropriate application of the
eligibility criteria for refugee status. 6
5.
A child-sensitive application of the refugee definition would be consistent with
the 1989 Convention on the Rights of the Child (hereafter “the CRC”). 7 The Committee
on the Rights of the Child has identified the following four Articles of the CRC as
general principles for its implementation: 8 Article 2: the obligation of , States to respect
17
2 20
and ensure the rights set forth in the Convention to each child arch
n M within their jurisdiction
ed o
the chiv
without discrimination of any kind; 9 Article 3 (1): 686 arbest interests of the child as a
10
72
. children; Article 6: the child’s inherent
primary consideration in all actions concerning13s, No
ssion
right to life and States parties’ obligation to ensure to the maximum extent possible the
v. Se 11
z
r ue
survival and development oofigthe child; and Article 12: the child’s right to express
R d
gasin
his/her views freelyBregarding “all matters affecting the child”, and that those views be
in r
cited 12
given due weight. These principles inform both the substantive and the procedural
4

5

6
7

8

9
10

11
12

UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution Within the context
of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7
May
2002
(hereafter
“UNHCR,
Guidelines
on
Gender-Related
Persecution”),
http://www.unhcr.org/refworld/docid/3d36f1c64.html, paras. 2, 4.
UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, Sep. 2005
(hereafter “CRC, General Comment No. 6”), http://www.unhcr.org/refworld/docid/42dd174b4.html,
para. 74.
UNHCR, Guidelines on Unaccompanied Children Seeking Asylum, op cit., page 10.
With a near universal ratification, the CRC is the most widely ratified human rights treaty, available at
http://www.unhcr.org/refworld/docid/3ae6b38f0.html. The rights contained therein apply to all children
within the jurisdiction of the State. For a detailed analysis of the provisions of the CRC, see UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, fully revised third edition, Sep.
2007
(hereafter
“UNICEF,
Implementation
Handbook”).
It
can
be
ordered
at
http://www.unicef.org/publications/index_43110.html.
CRC, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the
Rights of the Child (Arts. 4, 42 and 44, Para. 6), CRC/GC/2003/5, 3 Oct. 2003 (hereafter “CRC,
General Comment No. 5”), http://www.unhcr.org/refworld/docid/4538834f11.html, para. 12.
CRC, General Comment No. 6, para. 18.
Ibid, paras. 19–22. See also ExCom Conclusion No. 107, para. (b)(5), and, on how to conduct “best
interests” assessments and determinations, UNHCR, Guidelines on Determining the Best Interests of
the Child, Geneva, May 2008, http://www.unhcr.org/refworld/docid/48480c342.html.
CRC, General Comment No. 6, paras. 23–24.
Ibid, para. 25. See also CRC, General Comment No. 12 (2009): The right of the child to be heard,
CRC/C/GC/12,
20
July
2009 (hereafter
“CRC,
General
Comment
No.
12”),
http://www.unhcr.org/refworld/docid/4ae562c52.html.

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aspects of the determination of a child’s application for refugee status.
II.

DEFINITIONAL ISSUES

6.
These guidelines cover all child asylum-seekers, including accompanied,
unaccompanied and separated children, who may have individual claims to refugee
status. Each child has the right to make an independent refugee claim, regardless of
whether s/he is accompanied or unaccompanied. “Separated children” are children
separated from both their parents or from their previous legal or customary primary
caregivers but not necessarily from other relatives. In contrast, “unaccompanied
children” are children who have been separated from both parents and other relatives
and are not being cared for by an adult who, by law or custom, is responsible for doing
so. 13
7.
For the purposes of these Guidelines, “children” are defined as all persons
below the age of 18 years. 14 Every person under 18 years who is the principal asylum
applicant is entitled to child-sensitive procedural safeguards. Lowering the age of
childhood or applying restrictive age assessment approaches in order to treat children
as adults in asylum procedures may result in violations of their rights under
international human rights law. Being young and vulnerable may make a person
especially susceptible to persecution. Thus, there may be exceptional cases for which
these guidelines are relevant even if the applicant is 18 years of age or slightly older.
This may be particularly the case where persecution has hindered the applicant’s
development and his/her psychological maturity remains comparable 7 to that of a
1
2, 20
child. 15
arch
on M
ived
arch
6 considered the principal asylum
8.
Even at a young age, a child may still7268
- be
o. 13
applicant. 16 The parent, caregiver or sotherNperson representing the child will have to
ns,
e sio
assume a greater role in making v. S that all relevant aspects of the child’s claim are
ez sure
drigu
-Ro
presented. 17 However,asthe right of children to express their views in all matters
Bring
d in
cite
13

14

15

16

17

CRC, General Comment No. 6, paras. 7–8. See also, UNHCR, Guidelines on Unaccompanied Children
Seeking Asylum, op cit., p. 5, paras. 3.1-3.2. See also, UNHCR, UNICEF et al, Inter-agency Guiding
Principles on Unaccompanied and Separated Children, Geneva, 2004 (hereafter “Inter-Agency Guiding
Principles”), http://www.unhcr.org/refworld/docid/4113abc14.html, p. 13.
CRC, Art. 1 provides that “a child means every human being below the age of eighteen years unless,
under the law applicable to the child, majority is attained earlier.” In addition, the EU Council Directive
2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country
Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International
Protection and the Content of the Protection Granted, 19 May 2004, 2004/83/EC,
http://www.unhcr.org/refworld/docid/4157e75e4.html, provides that “’unaccompanied minors’ means
third-country nationals or stateless persons below the age of 18, who arrive on the territory of the
Member States unaccompanied by an adult responsible for them whether by law or custom, and for as
long as they are not effectively taken into the care of such a person; it includes minors who are left
unaccompanied after they have entered the territory of the Member States”, Art. 2 (i).
The United Kingdom Immigration Appeals Tribunal (now the Asylum and Immigration Tribunal) has
held that “[t]o adopt a rigidity however in this respect is in our view to fail to recognize that in many
areas of the world even today exact ages and dates of birth are imprecise. It is better to err on the side
of generosity”; Sarjoy Jakitay v. Secretary of State for the Home Department, Appeal No. 12658
(unreported), U.K. IAT, 15 Nov. 1995. See also, Decision VA0-02635, VA0-02635, Canada,
Immigration
and
Refugee
Board
(hereafter
“IRB”),
22
March
2001,
http://www.unhcr.org/refworld/docid/4b18dec82.html.
See, for instance, Chen Shi Hai v. The Minister for Immigration and Multicultural Affairs, [2000] HCA
19, Australia, High Court, 13 April 2000, http://www.unhcr.org/refworld/docid/3ae6b6df4.html. In this
case, which concerned a 3 ½ year-old boy, it was found that “under Australian law, the child was
entitled to have his own rights determined as that law provides. He is not for all purposes subsumed to
the identity and legal rights of his parents”, para. 78.
See also UNHCR, Refugee Children: Guidelines on Protection and Care, Geneva, 1994,
http://www.unhcr.org/refworld/docid/3ae6b3470.html, pp. 97–103.

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affecting them, including to be heard in all judicial and administrative proceedings, also
needs to be taken into account. 18 A child claimant, where accompanied by parents,
members of an extended family or of the community who by law or custom are
responsible for the child, is entitled to appropriate direction and guidance from them in
the exercise of his/her rights, in a manner consistent with the evolving capacities of the
child. 19 Where the child is the principal asylum-seeker, his/her age and, by implication,
level of maturity, psychological development, and ability to articulate certain views or
opinions will be an important factor in a decision maker’s assessment.
9.
Where the parents or the caregiver seek asylum based on a fear of persecution
for their child, the child normally will be the principal applicant even when accompanied
by his/her parents. In such cases, just as a child can derive refugee status from the
recognition of a parent as a refugee, a parent can, mutatis mutandis, be granted
derivative status based on his/her child’s refugee status. 20 In situations where both the
parent(s) and the child have their own claims to refugee status, it is preferable that
each claim be assessed separately. The introduction of many of the procedural and
evidentiary measures enumerated below in Part IV will enhance the visibility of children
who perhaps ought to be the principal applicants within their families. Where the child’s
experiences, nevertheless, are considered part of the parent’s claim rather than
independently, it is important to consider the claim also from the child’s point of view. 21
III.

SUBSTANTIVE ANALYSIS

7
, 201
rch 2
n Ma
do
hive
6 rc
10.
The term “persecution”, though not expressly a
7268 defined in the 1951 Convention,
o 13
can be considered to involve serious human . rights violations, including a threat to life
ns, N
essio
S
or freedom, as well as other kindsvof serious harm or intolerable situations as assessed
z .
rigue
-Rod
with regard to the age,gopinions, feelings and psychological make-up of the applicant. 22
as
Brin
Discrimination ited in amount to persecution in certain situations where the treatment
c may

a)

Well-founded fear of persecution

feared or suffered leads to consequences of a substantially prejudicial nature for the
child concerned. 23 The principle of the best interests of the child requires that the harm
be assessed from the child’s perspective. This may include an analysis as to how the
child’s rights or interests are, or will be, affected by the harm. Ill-treatment which may
not rise to the level of persecution in the case of an adult may do so in the case of a

18
19
20

21

22

23

CRC, Art. 12(2); CRC, General Comment No. 12, paras. 32, 67, 123.
CRC, Art. 5.
UNHCR, Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009 (hereafter
“UNHCR, Guidance Note on FGM”), http://www.unhcr.org/refworld/docid/4a0c28492.html, para. 11.
See also UNHCR, ExCom Conclusion on the Protection of the Refugee’s Family, No. 88 (L), 1999,
http://www.unhcr.org/refworld/docid/3ae68c4340.html, para. (b)(iii).
See, for instance, EM (Lebanon) (FC) (Appellant) v. Secretary of State for the Home Department
(Respondent), U.K.
House
of
Lords,
22
Oct.
2008,
http://www.unhcr.org/refworld/docid/490058699.html; Refugee Appeal Nos. 76250 & 76251, Nos.
76250 & 76251, New Zealand, Refugee Status Appeals Authority (hereafter “RSAA”), 1 Dec. 2008,
http://www.unhcr.org/refworld/docid/494f64952.html.
See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, 1979, re-edited, Geneva, Jan.
1992 (hereafter “UNHCR, Handbook”) http://www.unhcr.org/refworld/docid/3ae6b3314.html, paras. 51–
52; UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951
Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and
Persons at Risk of Being Trafficked, 7 Apr. 2006 (hereafter “UNHCR, Guidelines on Victims of
Trafficking”), http://www.unhcr.org/refworld/docid/443679fa4.html, para. 14.
UNHCR, Handbook, paras. 54–55.

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child. 24
11.
Both objective and subjective factors are relevant to establish whether or not a
child applicant has a well-founded fear of persecution. 25 An accurate assessment
requires both an up-to-date analysis and knowledge of child-specific circumstances in
the country of origin, including of existing child protection services. Dismissing a child’s
claim based on the assumption that perpetrators would not take a child’s views
seriously or consider them a real threat could be erroneous. It may be the case that a
child is unable to express fear when this would be expected or, conversely,
exaggerates the fear. In such circumstances, decision makers must make an objective
assessment of the risk that the child would face, regardless of that child’s fear. 26 This
would require consideration of evidence from a wide array of sources, including childspecific country of origin information. When the parent or caregiver of a child has a
well-founded fear of persecution for their child, it may be assumed that the child has
such a fear, even if s/he does not express or feel that fear. 27
12.
Alongside age, other identity-based, economic and social characteristics of the
child, such as family background, class, caste, health, education and income level, may
increase the risk of harm, influence the type of persecutory conduct inflicted on the
child and exacerbate the effect of the harm on the child. For example, children who are
homeless, abandoned or otherwise without parental care may be at increased risk of
sexual abuse and exploitation or of being recruited or used by an armed force/group or
criminal gang. Street children, in particular, may be rounded up and detained in
degrading conditions or be subjected to other forms of violence, including murder for
the purpose of “social cleansing”. 28 Children with disabilities may be, 2017
denied specialist
h2
or routine medical treatment or be ostracized by their family on Marc
or community. Children in
d
h e
what may be viewed as unconventional family situationsiv
6 arc including, for instance, those
7268
born out of wedlock, in violation of coerciveNo. 13- policies, 29 or through rape, may face
s, family
sion
abuse and severe discrimination. vPregnant girls may be rejected by their families and
. Ses
z
24

25
26

27

28

29

rigue
Rod
gasin
in Br

cited
See, for instance, United States Bureau of Citizenship and Immigration Services, Guidelines For
Children's Asylum Claims, 10 Dec. 1998 (hereafter the “U.S. Guidelines for Children’s Asylum Claims”),
http://www.unhcr.org/refworld/docid/3f8ec0574.html, noting that “the harm a child fears or has suffered,
however, may be relatively less than that of an adult and still qualify as persecution.” See also, Chen
Shi Hai, op. cit., where the Court found that “what may possibly be viewed as acceptable enforcement
of laws and programmes of general application in the case of the parents may nonetheless be
persecution in the case of the child”, para. 79.
UNHCR, Handbook, paras. 40–43.
See UNHCR, Handbook, paras. 217–219. See also Yusuf v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 629; F.C.J. 1049, Canada, Federal Court, 24 Oct. 1991,
http://www.unhcr.org/refworld/docid/403e24e84.html. The Court concluded that “I am loath to believe
that a refugee status claim could be dismissed solely on the ground that as the claimant is a young
child or a person suffering from a mental disability, s/he was incapable of experiencing fear the reasons
for which clearly exist in objective terms.”, at 5.
See, for instance, Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747, [2009] 2
F.C.R.
196, Canada,
Federal
Court, 17
June
2008,
http://www.unhcr.org/refworld/docid/4a6438952.html, at 32–33.
“Social cleansing” refers to the process of removing an undesirable group from an area and may
involve murder, disappearances, violence and other ill-treatment. See, UNICEF, Implementation
Handbook, pp. 89, 91, 287. See also Case of the “Street Children” (Villagrán-Morales et al.) v.
Guatemala, Inter-American Court of Human Rights (hereafter “IACtHR”), Judgment of 19 Nov. 1999,
http://www.unhcr.org/refworld/docid/4b17bc442.html, paras. 190–191. The Court found that there was
a prevailing pattern of violence against street children in Guatemala. Relying on the CRC to interpret
Art. 19 of the 1969 American Convention on Human Rights, "Pact of San Jose", Costa Rica (hereafter
“ACHR”), http://www.unhcr.org/refworld/docid/3ae6b36510.html, the Court noted that the State had
violated their physical, mental, and moral integrity as well as their right to life and also failed to take any
measures to prevent them from living in misery, thereby denying them of the minimum conditions for a
dignified life.
See further, UNHCR, Note on Refugee Claims Based on Coercive Family Planning Laws or Policies,
Aug. 2005, http://www.unhcr.org/refworld/docid/4301a9184.html.

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subject to harassment, violence, forced prostitution or other demeaning work. 30
Child-specific rights
13.
A contemporary and child-sensitive understanding of persecution encompasses
many types of human rights violations, including violations of child-specific rights. In
determining the persecutory character of an act inflicted against a child, it is essential
to analyse the standards of the CRC and other relevant international human rights
instruments applicable to children. 31 Children are entitled to a range of child-specific
rights set forth in the CRC which recognize their young age and dependency and are
fundamental to their protection, development and survival. These rights include, but are
not limited to, the following: the right not to be separated from parents (Article 9);
protection from all forms of physical and mental violence, abuse, neglect, and
exploitation (Article 19); protection from traditional practices prejudicial to the health of
children (Article 24); a standard of living adequate for the child’s development (Article
27); the right not to be detained or imprisoned unless as a measure of last resort
(Article 37); and protection from under-age recruitment (Article 38). The CRC also
recognizes the right of refugee children and children seeking refugee status to
appropriate protection and humanitarian assistance in the enjoyment of applicable
rights set forth in the CRC and in other international human rights or humanitarian
instruments (Article 22).
14.
Children’s socio-economic needs are often more compelling than those of
adults, particularly due to their dependency on adults and unique developmental
201 as
needs. Deprivation of economic, social and cultural rights, thus, may, be 7 relevant to
rch 2
n Ma It is important not to
the assessment of a child’s claim as that of civil and political rights.
do
hive
6 c
automatically attribute greater significance to certainarviolations than to others but to
7268
o 13
assess the overall impact of the harm on sthe .individual child. The violation of one right
n ,N
essio
v. S
often may expose the child to zother abuses; for example, a denial of the right to
rigue
-Rod
education or an adequate standard of living may lead to a heightened risk of other
as
Bring
32
forms of harm,ited in
c including violence and abuse. Moreover, there may be political, racial,
gender or religious aims or intentions against a particular group of children or their
parents underlying discriminatory measures in the access and enjoyment of ESC
rights. As noted by the UN Committee on Economic, Social and Cultural Rights:
The lack of educational opportunities for children often reinforces their
subjection to various other human rights violations. For instance, children
who may live in abject poverty and not lead healthy lives are particularly
vulnerable to forced labour and other forms of exploitation. Moreover, there
is a direct correlation between, for example, primary school enrolment levels
for girls and major reductions in child marriages. 33
Child-related manifestations of persecution
15.
While children may face similar or identical forms of harm as adults, they may
experience them differently. Actions or threats that might not reach the threshold of

30
31

32

33

UNHCR, Guidelines on Gender-Related Persecution, op cit., para. 18.
In the context of Africa, the African Charter on the Rights and Welfare of the Child should also be
considered (hereafter “African Charter”), http://www.unhcr.org/refworld/docid/3ae6b38c18.html.
CRC, General Comment No. 5, op cit., paras. 6–7. See further below at v. Violations of economic,
social and cultural rights.
UN Committee on Economic, Social and Cultural Rights (hereafter “CESCR"), General Comment No.
11: Plans of Action for Primary Education (Art. 14 of the Covenant), E/1992/23, 10 May
1999, http://www.unhcr.org/refworld/docid/4538838c0.html, para. 4.

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persecution in the case of an adult may amount to persecution in the case of a child
because of the mere fact that s/he is a child. Immaturity, vulnerability, undeveloped
coping mechanisms and dependency as well as the differing stages of development
and hindered capacities may be directly related to how a child experiences or fears
harm. 34 Particularly in claims where the harm suffered or feared is more severe than
mere harassment but less severe than a threat to life or freedom, the individual
circumstances of the child, including his/her age, may be important factors in deciding
whether the harm amounts to persecution. To assess accurately the severity of the
acts and their impact on a child, it is necessary to examine the details of each case and
to adapt the threshold for persecution to that particular child.
16.
In the case of a child applicant, psychological harm may be a particularly
relevant factor to consider. Children are more likely to be distressed by hostile
situations, to believe improbable threats, or to be emotionally affected by unfamiliar
circumstances. Memories of traumatic events may linger in a child and put him/her at
heightened risk of future harm.
17.
Children are also more sensitive to acts that target close relatives. Harm
inflicted against members of the child’s family can support a well-founded fear in the
child. For example, a child who has witnessed violence against, or experienced the
disappearance or killing of a parent or other person on whom the child depends, may
have a well-founded fear of persecution even if the act was not targeted directly against
him/her. 35 Under certain circumstances, for example, the forced separation of a child
from his/her parents, due to discriminatory custody laws or the detention of the child’s
17
parent(s) could amount to persecution. 36
2, 20

rch
n Ma
ed o
rchiv
a
Child-specific forms of persecution
2686
13-7
No.
,
ions
Sess
18.
Children may also beuesubjected to specific forms of persecution that are
z v.
rig
influenced by their rage, -Rod of maturity or vulnerability. The fact that the refugee
as lack
B ing
claimant is a cited in may be a central factor in the harm inflicted or feared. This may be
child

because the alleged persecution only applies to, or disproportionately affects, children
or because specific child rights may be infringed. UNHCR’s Executive Committee has
recognized that child-specific forms of persecution may include under-age recruitment,
child trafficking and female genital mutilation (hereafter “FGM”). 37 Other examples
include, but are not limited to, family and domestic violence, forced or underage
marriage, 38 bonded or hazardous child labour, forced labour, 39 forced prostitution and

34

35

36

37
38

39

See further Save the Children and UNICEF, The evolving capacities of the child, 2005,
http://www.unicef-irc.org/publications/pdf/evolving-eng.pdf.
See, for instance, Cicek v. Turkey, Application No. 67124/01, European Court of Human Rights
(hereafter “ECtHR”), 18 Jan. 2005, http://www.unhcr.org/refworld/docid/42d3e7ea4.html, paras. 173–
174;
Bazorkina
v.
Russia, Application
No.
69481/01, ECtHR, 27
July
2006,
http://www.unhcr.org/refworld/docid/44cdf4ef4.html, paras. 140–141.
See EM (Lebanon) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), op.
cit., Refugee Appeal Nos. 76226 and 76227, Nos. 76226 and 76227, New Zealand, RSAA, 12 Jan.
2009, http://www.unhcr.org/refworld/docid/49a6ac0e2.html, paras. 112–113.
ExCom, Conclusion No. 107, para. (g)(viii).
CRC, Art. 24(3); International Convenant on Civil and Political Rights (hereafter “ICCPR”),
http://www.unhcr.org/refworld/docid/3ae6b3aa0.html, Art. 23; International Covenant on Economic,
Social and Cultural Rights, http://www.unhcr.org/refworld/docid/3ae6b36c0.html, Art. 10; Convention on
the
Elimination
of
All
Forms
of
Discrimination
Against
Women,
http://www.unhcr.org/refworld/docid/3ae6b3970.html, Art. 16.
CRC, Arts. 32–36; International Labour Organization, Worst Forms of Child Labour Convention, C182
(hereafter
“ILO
Convention
on
the
Worst
Forms
of
Child
Labour”),
http://www.unhcr.org/refworld/docid/3ddb6e0c4.html; Minimum Age Convention, C138, (hereafter “ILO
Minimum Age Convention”), http://www.unhcr.org/refworld/docid/421216a34.html, Arts. 2 (3), 2(4).

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child pornography. 40 Such forms of persecution also encompass violations of survival
and development rights as well as severe discrimination of children born outside strict
family planning rules 41 and of stateless children as a result of loss of nationality and
attendant rights. Some of the most common forms of child-specific persecution arising
in the context of asylum claims are outlined in greater detail below.
i. Under-age recruitment
19.
There is a growing consensus regarding the ban on the recruitment and use of
children below 18 years in armed conflict. 42 International humanitarian law prohibits the
recruitment and participation in the hostilities of children under the age of 15 years
whether in international 43 or non-international armed conflict. 44 Article 38 of the CRC
reiterates State Parties’ obligations under international humanitarian law. The Rome
Statute of the International Criminal Court classifies as war crimes the enlistment and
use of children under the age of 15 years into the armed forces at a time of armed
conflict. 45 The Special Court for Sierra Leone has concluded that the recruitment of
children under the age of 15 years into the armed forces constitutes a crime under
general international law. 46
20.
The Optional Protocol to the CRC on the Involvement of Children in Armed
Conflict provides that States parties shall take all feasible measures to ensure that
members of their armed forces under the age of 18 years do not take part in hostilities,
and ensure that persons under the age of 18 years are not compulsorily recruited into
their armed forces. 47 The Optional Protocol contains an absolute prohibition against the
recruitment or use, under any circumstances, of children who are less1than 18 years
20 7
h 2,
old by armed groups that are distinct from the armed forces d onaMState. 48 It also amends
of arc

40

41

42

43

44

45

46

47

48

hive
6 arc
7268
o. 13
ns, N
essio
S
z v.
r ue
CRC, Art. 34; Optional Protocol ig the Convention on the Rights of the Child on the Sale of Children,
-Rod to
s
inga
Child Prostitution andrChild Pornography, http://www.unhcr.org/refworld/docid/3ae6b38bc.html.
in B
th
cited

See, for instance, Xue Yun Zhang v. Gonzales, No. 01-71623, U.S. Court of Appeals for the 9 Circuit,
26 May 2005, http://www.unhcr.org/refworld/docid/4b17c7082.html; Chen Shi Hai, op. cit.
See UNICEF, The Paris Principles and Guidelines on Children Associated With Armed Forces or
Armed Groups, Feb. 2007 (hereafter “The Paris Principles”). While not binding, they reflect a strong
trend for a complete ban on under-age recruitment. See also UN Security Council resolution 1612
(2005)
(on
children
in
armed
conflict),
26
July
2005, S/RES/1612,
http://www.unhcr.org/refworld/docid/43f308d6c.html, para. 1; 1539 on the protection of children
affected
by
armed
conflict,
S/RES/1539,
22
Apr.
2004,
http://www.unhcr.org/refworld/docid/411236fd4.html.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims
of
International
Armed
Conflicts
(Protocol
I),
http://www.unhcr.org/refworld/docid/3ae6b36b4.html, Art. 77(2).
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims
of
Non-International
Armed
Conflicts
(Protocol
II),
http://www.unhcr.org/refworld/docid/3ae6b37f40.html, Art. 4(3).
UN General Assembly, Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998
(hereafter “ICC Statute”), http://www.unhcr.org/refworld/docid/3ae6b3a84.html, Art. 8 (2) (b) [xxvi] and
(e)[vii].
See Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary
Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, paras. 52–53; UN Security
Council, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4
Oct. 2000, S/2000/915, http://www.unhcr.org/refworld/docid/3ae6afbf4.html, para. 17, which recognized
the customary character of the prohibition of child recruitment.
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, http://www.unhcr.org/refworld/docid/47fdfb180.html, Arts. 1–2. There are currently 127
States Parties to the Optional Protocol. See also the African Charter, which establishes 18 years as the
minimum age for all compulsory recruitment, Arts. 2 and 22.2, and the ILO Convention on the Worst
Forms of Child Labour, which includes the forced recruitment of children under the age of 18, Arts. 2
and 3(a) in its definition of worst forms of child labor.
Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, Art. 4.

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Article 38 of the CRC by raising the minimum age of voluntary recruitment. 49 States
also commit to use all feasible measures to prohibit and criminalize under-age
recruitment and use of child soldiers by non-State armed groups. 50 The Committee on
the Rights of the Child emphasizes that
… under-age recruitment (including of girls for sexual services or forced
marriage with the military) and direct or indirect participation in hostilities
constitutes a serious human rights violation and thereby persecution, and
should lead to the granting of refugee status where the well-founded fear of
such recruitment or participation in hostilities is based on “reasons of race,
religion, nationality, membership of a particular social group or political opinion”
(article 1A (2), 1951 Refugee Convention). 51
21.
In UNHCR’s view, forced recruitment and recruitment for direct participation in
hostilities of a child below the age of 18 years into the armed forces of the State would
amount to persecution. The same would apply in situations where a child is at risk of
forced re-recruitment or would be punished for having evaded forced recruitment or
deserted the State’s armed forces. Similarly, the recruitment by a non-State armed
group of any child below the age of 18 years would be considered persecution.
22.
Voluntary recruitment of children above the age of 16 years by States is
permissible under the Optional Protocol to the CRC on the Involvement of Children in
Armed Conflict. 52 However, the recruiting State authorities have to put in place
safeguards to ensure that the recruitment is voluntary, that it is undertaken with the
informed consent of the parents and that the children who are2, so17recruited are
20
rch
requested to produce satisfactory proof of age prior to their drecruitment. In such cases,
n Ma
e o
it is important to assess whether the recruitment2686 archiv
was genuinely voluntary, bearing in
7
mind that children are particularly susceptible. to -abduction, manipulation and force and
o 13
ns, N
essioThey may enlist under duress, in self-defence,
may be less likely to resist recruitment.
S
z v.
rigue
to avoid harm to theirasfamilies, to seek protection against unwanted marriages or
-Rod
g
sexual abuse ited in Brin
within their homes, or to access basic means of survival, such as food
c
and shelter. The families of children may also encourage them to participate in armed
conflict, despite the risks and dangers.
23.
In addition, children may have a well-founded fear of persecution arising from
the treatment they are subjected to, and/or conduct they are required to engage in, by
the armed forces or armed group. Boys and girls associated with armed forces or
armed groups may be required to serve as cooks, porters, messengers, spies as well
as to take direct part in the hostilities. Girls, in particular, may be forced into sexual
relations with members of the military. 53 It is also important to bear in mind that children
who have been released from the armed forces or group and return to their countries
and communities of origin may be in danger of harassment, re-recruitment or
retribution, including imprisonment or extra-judicial execution.

49
50
51
52

53

Ibid., Art. 3.
Ibid., Art. 4.
CRC, General Comment, No. 6, para. 59. See also para. 58.
Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, Art. 3. States Parties
are required to raise in years the minimum age for the voluntary recruitment from the age set out in Art.
38, para. 3 of the CRC, hence, from 15 to 16 years.
The Paris Principles define children associated with an armed force or group as follows: “A child
associated with an armed force or armed group refers to any person below 18 years of age who is or
who has been recruited or used by an armed force or armed group in any capacity, including but not
limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual
purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.” Art. 2.1.

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ii. Child trafficking and labour
24.
As recognized by several jurisdictions, trafficked children or children who fear
being trafficked may have valid claims to refugee status. 54 UNHCR’s Guidelines on
Victims of Trafficking and Persons at Risk of Being Trafficked are equally applicable to
an asylum claim submitted by a child. The particular impact of a trafficking experience
on a child and the violations of child-specific rights that may be entailed also need to be
taken into account. 55
25.
The trafficking of children occurs for a variety of reasons but all with the same
overarching aim to gain profit through the exploitation of human beings. 56 In this
context, it is important to bear in mind that any recruitment, transportation, transfer,
harbouring or receipt of children for the purpose of exploitation is a form of trafficking
regardless of the means used. Whether the child consented to the act or not is,
therefore, irrelevant. 57
26.
The trafficking of a child is a serious violation of a range of fundamental rights
and, therefore, constitutes persecution. These rights include the right to life, survival
and development, the right to protection from all forms of violence, including sexual
exploitation and abuse, and the right to protection from child labour and abduction, sale
and trafficking, as specifically provided for by Article 35 of the CRC. 58
27.
The impact of reprisals by members of the trafficking network, social exclusion,
ostracism and/or discrimination 59 against a child victim of trafficking who is returned to
his/her home country needs to be assessed in a child-sensitive manner.7For example,
201
h 2,
Ma c
a girl who has been trafficked for sexual exploitation may endnup rbeing rejected by her
do
hive
family and become a social outcast in her community arcreturned. A boy, who has been
6 if
7268
sent away by his parents in the hope and, No. 13expectation that he will study, work abroad
ns
and send remittances back to his v. Sessiolikewise may become excluded from his family
family
uez
if they learn that he has odrig
R been trafficked into forced labour. Such child victims of
gasin B very limited possibilities of accessing and enjoying their human
trafficking may ehaverin
cit d
rights, including survival rights, if returned to their homes.
28.
In asylum cases involving child victims of trafficking, decision makers will need
to pay particular attention to indications of possible complicity of the child’s parents,
other family members or caregivers in arranging the trafficking or consenting to it. In
such cases, the State’s ability and willingness to protect the child must be assessed
54

55

56

57

58

59

See, for instance, Ogbeide v. Secretary of State for the Home Department, No. HX/08391/2002, U.K.
IAT, 10 May 2002 (unreported); Li and Others v. Minister of Citizenship and Immigration, IMM-932-00,
Canada, Federal Court, 11 Dec. 2000, http://www.unhcr.org/refworld/docid/4b18d3682.html.
See UNHCR, Guidelines on Victims of Trafficking. See also UNICEF, Guidelines on the Protection of
Child
Victims
of
Trafficking,
Oct.
2006,
http://www.unicef.org/ceecis/0610Unicef_Victims_Guidelines_en.pdf, which make reference to refugee status for children who have been
trafficked.
These reasons include, but are not limited to, bonded child labour, debt repayment, sexual exploitation,
recruitment by armed forces and groups, and irregular adoption. Girls, in particular, may be trafficked
for the purpose of sexual exploitation or arranged marriage while boys may be particularly at risk of
being trafficked for various forms of forced labour.
For a definition of the scope of “trafficking”, see the following international and regional instruments:
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the UN Convention against Transnational Organized Crime, 15 Nov. 2000,
http://www.unhcr.org/refworld/docid/4720706c0.html, in particular Art. 3; Council of Europe Convention
on Action against Trafficking in Human Beings, CETS No. 197, 3 May 2005
http://www.unhcr.org/refworld/docid/43fded544.html.
For a detailed analysis of the human rights framework relating to the trafficking of children, see
UNICEF, Implementation Handbook, op cit., in particular pp. 531–542.
UNHCR, Guidelines on Victims of Trafficking, op cit., paras. 17–18.

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carefully. Children at risk of being (re-)trafficked or of serious reprisals should be
considered as having a well-founded fear of persecution within the meaning of the
refugee definition.
29.
In addition to trafficking, other worst forms of labour, such as slavery, debt
bondage and other forms of forced labour, as well as the use of children in prostitution,
pornography and illicit activities (for example, the drug trade) are prohibited by
international law. 60 Such practices represent serious human rights violations and,
therefore, would be considered persecution, whether perpetrated independently or as
part of a trafficking experience.
30.
International law also proscribes labour likely to harm the health, safety or
morals of a child, also known as “hazardous work”. 61 In determining whether labour is
hazardous, the following working conditions need to be considered: work that exposes
children to physical or mental violence; work that takes place underground, under
water, at dangerous heights or in confined spaces; work that involves dangerous
equipment or manual handling of heavy loads; long working hours and unhealthy
environments. 62 Labour performed by a child under the minimum age designated for
the particular kind of work and deemed likely to inhibit the child’s education and full
development is also prohibited according to international standards. 63 Such forms of
labour could amount to persecution, as assessed according to the particular child’s
experience, his/her age and other circumstances. Persecution, for example, may arise
where a young child is compelled to perform harmful labour that jeopardizes his/her
physical and/or mental health and development.
7
, 201
rch 2
n Ma
do
hive
6 arc
7268
1331.
All forms of FGM 64 are consideredo. harmful and violate a range of human
,N
ions
65
essand national jurisprudence and legal doctrine.
rights, as affirmed by international
v. S
uez
Many jurisdictions haves-Rodrig
recognized that FGM involves the infliction of grave harm
inga
in Br
amounting to persecution. 66 As the practice disproportionately affects the girl child, 67 it
cited

iii. Female genital mutilation

can be considered a child-specific form of persecution. For further information about
FGM in the context of refugee status determination, see UNHCR Guidance Note on
Refugee Claims relating to Female Genital Mutilation. 68
iv. Domestic violence against children

60
61
62

63
64

65

66

67

68

ILO Convention on the Worst Forms of Child Labour, Art. 3 (a–c).
Ibid., Art. 3(d).
Ibid., Art. 4 in conjunction with ILO Worst Forms of Child Labour Recommendation, 1999, R190,
http://www.unhcr.org/refworld/docid/3ddb6ef34.html, at 3 and 4.
ILO Minimum Age Convention, Art. 2.
FGM comprises all procedures involving partial or total removal of the external female genitalia or other
injury to the female genital organs for non-medical reasons. See further, OHCHR, UNAIDS et al.,
Eliminating
Female
Genital
Mutilation:
An
Interagency
Statement,
Feb.
2008,
http://www.unhcr.org/refworld/docid/47c6aa6e2.html.
These include the right to life, to protection from torture, and cruel, inhuman or degrading treatment, to
protection from physical and mental violence and the right to the highest attainable standard of health.
See, for instance, Mlle Diop Aminata, 164078, Commission des Recours des Réfugiés (hereafter
“CRR”), France, 17 July 1991, http://www.unhcr.org/refworld/docid/3ae6b7294.html; Khadra Hassan
Farah, Mahad Dahir Buraleh, Hodan Dahir Buraleh, Canada, IRB, 10 May 1994,
http://www.unhcr.org/refworld/docid/3ae6b70618.html; In re Fauziya Kasinga, 3278, U.S. Board of
Immigration
Appeals
(hereafter
“BIA”),
13
June
1996,
http://www.unhcr.org/refworld/docid/47bb00782.html.
FGM is mostly carried out on girls up to 15 years of age, although older girls and women may also be
subjected to the practice.
UNHCR, Guidance Note on FGM, op cit.

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32.
All violence against children, including physical, psychological and sexual
violence, while in the care of parents or others, is prohibited by the CRC. 69 Violence
against children may be perpetrated in the private sphere by those who are related to
them through blood, intimacy or law. 70 Although it frequently takes place in the name of
discipline, it is important to bear in mind that parenting and caring for children, which
often demand physical actions and interventions to protect the child, is quite distinct
from the deliberate and punitive use of force to cause pain or humiliation. 71 Certain
forms of violence, in particular against very young children, may cause permanent
harm and even death, although perpetrators may not aim to cause such harm. 72
Violence in the home may have a particularly significant impact on children because
they often have no alternative means of support. 73
33.
Some jurisdictions have recognized that certain acts of physical, sexual and
mental forms of domestic violence may be considered persecution. 74 Examples of such
acts include battering, sexual abuse in the household, incest, harmful traditional
practices, crimes committed in the name of honour, early and forced marriages, rape
and violence related to commercial sexual exploitation. 75 In some cases, mental
violence may be as detrimental to the victim as physical harm and could amount to
persecution. Such violence may include serious forms of humiliation, harassment,
abuse, the effects of isolation and other practices that cause or may result in
psychological harm. 76 Domestic violence may also come within the scope of torture
and other cruel, inhuman and degrading treatment or punishment. 77 A minimum level of
severity is required for it to constitute persecution. When assessing the level of severity
of the harm, a number of factors such as the frequency, patterns, duration and impact
on the particular child need to be taken into account. The child’s age, 2017 dependency
and
rch 2
on the perpetrator as well as the long-term effects on the dphysical and psychological
n Ma
o
ive
ar h
development and well-being of the child also need2to6becconsidered.
68
-7
o. 13
ns, N
s
v. Violations of economic, socialio
. Ses and cultural rights
ez v
drigu
o
as-R
Bring
The enjoyment of economic, social and cultural rights
d in
cite

34.
is central to the child’s
survival and development. 78 The UN Committee on the Rights of the Child has stated
that
… the right to survival and development can only be implemented in a holistic
69
70

71

72
73

74

75

76

77

78

CRC, Arts. 19, 37.
Declaration
on
the
Elimination
of
Violence
Against
Women,
http://www.unhcr.org/refworld/docid/3b00f25d2c.html, Art. 2(a).
See CRC, General Comment No. 8 (2006): The Right of the Child to Protection from Corporal
Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, Para. 2; and 37, inter
alia), CRC/C/GC/8, 2 Mar. 2007 (hereafter “CRC, General Comment No. 8”),
http://www.unhcr.org/refworld/docid/460bc7772.html, paras. 13–14, 26.
UN study on violence against children, op. cit., para. 40.
See further UNICEF, Domestic Violence Against Women and Girls, Innocenti Digest No. 6, 2000,
http://www.unicef-irc.org/publications/pdf/digest6e.pdf.
See UNHCR, Handbook for the Protection of Women and Girls, Feb. 2008,
http://www.unhcr.org/refworld/docid/47cfc2962.html, pp. 142–144. See also, for instance, Rosalba
Aguirre-Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and Naturalization Service, U.S.
th
Court of Appeals for the 9 Circuit, 21 Mar. 2001, http://www.unhcr.org/refworld/docid/3f37adc24.html.
UN Commission on Human Rights, Human Rights Resolution 2005/41: Elimination of violence against
women, E/CN.4/RES/2005/41, 19 Apr. 2005, http://www.unhcr.org/refworld/docid/45377c59c.html,
para. 5.
CRC, General Comment No. 8, op cit., para. 11. See also UN study on violence against children, op.
cit., para. 42; UNICEF, Domestic Violence Against Women and Girls, op cit., pp. 2–4.
CRC, General Comment No. 8, op cit., para. 12; Human Rights Council, Report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/7/3, 15
Jan. 2008, http://www.unhcr.org/refworld/docid/47c2c5452.html, paras. 45–49.
CRC, Art. 6.2.

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manner, through the enforcement of all the other provisions of the Convention,
including rights to health, adequate nutrition, social security, an adequate
standard of living, a healthy and safe environment, education and play. 79
While the CRC and the 1966 Covenant on Economic, Social and Cultural Rights
contemplate the progressive realization of economic, social and cultural rights, these
instruments impose various obligations on States Parties which are of immediate
effect. 80 These obligations include avoiding taking retrogressive measures, satisfying
minimum core elements of each right and ensuring non-discrimination in the enjoyment
of these rights. 81
35.
A violation of an economic, social or cultural right may amount to persecution
where minimum core elements of that right are not realized. For instance, the denial of
a street child’s right to an adequate standard of living (including access to food, water
and housing) could lead to an intolerable predicament which threatens the
development and survival of that child. Similarly, a denial of medical treatment,
particularly where the child concerned suffers from a life-threatening illness, may
amount to persecution. 82 Persecution may also be established through an
accumulation of a number of less serious violations. 83 This could, for instance, be the
case where children with disabilities or stateless children lack access to birth
registration and, as a result, are excluded from education, health care and other
services. 84
36.
Measures of discrimination may amount to persecution when they lead to
consequences of a substantially prejudicial nature for the child concerned. 85 Children
2017
h 2,
who lack adult care and support, are orphaned, abandoned d onrejected by their parents,
or Marc
e
and are escaping violence in their homes may be 2686 archiv affected by such forms of
particularly
7
discrimination. While it is clear that not allsdiscriminatory acts leading to the deprivation
o. 13
n ,N
essio
of economic, social and cultural rights necessarily equate to persecution, it is important
S
z v.
r ue
to assess the consequencesigof such acts for each child concerned, now and in the
-Rod
gas
in B bearing in mind the fundamental importance of education and the
future. For example,rin
cited
significant impact a denial of this right may have for the future of a child, serious harm
79

80

81

82

83

84

85

CRC, General Comment No. 7: Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev.1, 20
Sep.
2006
(hereafter
“CRC,
General
Comment
No.
7”)
http://www.unhcr.org/refworld/docid/460bc5a62.html, para. 10.
See CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the
Covenant), E/1991/23, 14 Dec. 1990, http://www.unhcr.org/refworld/docid/4538838e10.html, para. 1;
CRC, General Comment No. 5, para. 6.
See UN Commission on Human Rights, Note verbale dated 86/12/05 from the Permanent Mission of
the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights
("Limburg
Principles"),
8
Jan.
1987, E/CN.4/1987/17
at
B.16,
21–22,
http://www.unhcr.org/refworld/docid/48abd5790.html; International Commission of Jurists, Maastricht
Guidelines on Violations of Economic, Social and Cultural Rights, 26 Jan. 1997,
http://www.unhcr.org/refworld/docid/48abd5730.html, at II.9 and 11.
See, for instance, RRT Case No. N94/04178, N94/04178, Australia, Refugee Review Tribunal
(hereafter “RRT”), 10 June 1994, http://www.unhcr.org/refworld/docid/3ae6b6300.html.
UNHCR, Handbook, para. 53. See also Canada (Citizenship and Immigration) v. Oh, 2009 FC
506, Canada, Federal Court, 22 May 2009, http://www.unhcr.org/refworld/docid/4a897a1c2.html, at 10.
See Case of the Yean and Bosico Children v. The Dominican Republic, IACtHR, 8 Sep. 2005,
http://www.unhcr.org/refworld/docid/44e497d94.html. Two girls of Haitian origin were denied the right to
nationality and education because, among other matters, they did not have a birth certificate; Case of
the
"Juvenile
Reeducation
Institute"
v.
Paraguay,
IACtHR,
2
Sep.
2004,
http://www.unhcr.org/refworld/docid/4b17bab62.html. The Court found that failure to provide severely
marginalized groups with access to basic health-care services constitutes a violation of the right to life
of the ACHR. See also, CRC, General Comment No. 7, para. 25; CRC, General Comment No. 9
(2006): The Rights of children with disabilities, CRC/C/GC/9, 27 Feb. 2007 (hereafter “CRC, General
Comment No. 9”), http://www.unhcr.org/refworld/docid/461b93f72.html, paras. 35–36.
UNHCR, Handbook, para. 54.

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could arise if a child is denied access to education on a systematic basis. 86 Education
for girls may not be tolerated by society, 87 or school attendance may become
unbearable for the child due to harm experienced on racial or ethnic grounds. 88
b)

Agents of persecution

37.
In child asylum claims, the agent of persecution is frequently a non-State actor.
This may include militarized groups, criminal gangs, parents and other caregivers,
community and religious leaders. In such situations, the assessment of the wellfoundedness of the fear has to include considerations as to whether or not the State is
unable or unwilling to protect the victim. 89 Whether or not the State or its agents have
taken sufficient action to protect the child will need to be assessed on a case-by-case
basis.
38.
The assessment will depend not only on the existence of a legal system that
criminalizes and provides sanctions for the persecutory conduct. It also depends on
whether or not the authorities ensure that such incidents are effectively investigated
and that those responsible are identified and appropriately punished. 90 Hence, the
enactment of legislation prohibiting or denouncing a particular persecutory practice
against children, in itself, is not sufficient evidence to reject a child’s claim to refugee
status. 91
39.
The child’s access to State protection also depends on the ability and
willingness of the child’s parents, other primary caregiver or guardian to exercise rights
and obtain protection on behalf of the child. This may include filingch 2complaint with the
a , 2017
r
n Ma
police, administrative authorities or public service institutions. However, not all children
do
hive
6 arc
will have an adult who can represent them as is -the8case, for example, where the child
726
13
is unaccompanied or orphaned, or where saNo.
n , parent, other primary caregiver or guardian
essio
v. S
is the agent of persecution. It uisz important to remember that, due to their young age,
rig e
R approach law enforcement officials or articulate their fear or
-tood
children may not be ables
inga
in
cited

86

87

88

89

90

91

Br

See RRT Case No. V95/03256, [1995] RRTA 2263, Australia, RRT, 9 Oct. 1995,
http://www.unhcr.org/refworld/docid/4b17c13a2.html, where the Tribunal found that “discriminatory
denial of access to primary education is such a denial of a fundamental human right that it amounts to
persecution.” at 47.
See Ali v. Minister of Citizenship and Immigration, IMM-3404-95, Canada, IRB, 23 Sep. 1996,
http://www.unhcr.org/refworld/docid/4b18e21b2.html, which concerned a 9 year-old girl from
Afghanistan. The Court concluded that "Education is a basic human right and I direct the Board to find
that she should be found to be a Convention refugee."
Decisions in both Canada and Australia have accepted that bullying and harassment of school children
may amount to persecution. See, for instance, Decision VA1-02828, VA1-02826, VA1-02827 and VA102829, VA1-02828, VA1-02826, VA1-02827 and VA1-02829, Canada, IRB, 27 Feb. 2003,
http://www.unhcr.org/refworld/docid/4b18e03d2.html, para. 36; RRT Case No. N03/46534, [2003]
RRTA 670, Australia, RRT, 17 July 2003, http://www.unhcr.org/refworld/docid/4b17bfd62.html.
See CRC, Art. 3, which imposes a duty on States Parties to ensure the protection and care of children
in respect of actions by both State and private actors; ACHR, Arts. 17 and 19; African Charter, Arts.
1(3), 81. See also UNHCR, Handbook, para. 65; UNHCR, Guidelines on Gender-Related Persecution,
para. 19; Advisory Opinion on Juridical Condition and Human Rights of the Child, No. OC-17/02,
IACtHR, 28 Aug. 2002, http://www.unhcr.org/refworld/docid/4268c57c4.html.
See, for instance, Velásquez Rodríguez Case, Series C, No. 4, IACtHR, 29 July 1988, para. 174
http://www.unhcr.org/refworld/docid/40279a9e4.html; M.C. v. Bulgaria, Application No. 39272/98,
ECtHR, 3 Dec. 2003, http://www.unhcr.org/refworld/docid/47b19f492.html. See also UN Committee on
the Elimination of Discrimination Against Women, General Recommendations Nos. 19 and 20, adopted
at the Eleventh Session, 1992 (contained in Document A/47/38), A/47/38, 1992,
http://www.unhcr.org/refworld/docid/453882a422.html, para. 9; UN Commission on Human Rights, The
due diligence standard as a tool for the elimination of violence against women: Report of the Special
Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk,
E/CN.4/2006/61, 20 Jan. 2006, http://www.unhcr.org/refworld/docid/45377afb0.html.
UNHCR, Guidelines on Gender-Related Persecution, para. 11.

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complaint in the same way as adults. Children may be more easily dismissed or not
taken seriously by the officials concerned, and the officials themselves may lack the
skills necessary to interview and listen to children.
c)

The 1951 Convention grounds

40.
As with adult claims to refugee status, it is necessary to establish whether or
not the child’s well-founded fear of persecution is linked to one or more of the five
grounds listed in Article 1A(2) of the 1951 Convention. It is sufficient that the
Convention ground be a factor relevant to the persecution, but it is not necessary that it
be the sole, or even dominant, cause.
Race and nationality or ethnicity
41.
Race and nationality or ethnicity is at the source of child asylum claims in many
contexts. Policies that deny children of a particular race or ethnicity the right to a
nationality or to be registered at birth, 92 or that deny children from particular ethnic
groups their right to education or to health services would fall into this category. This
Convention ground would apply similarly to policies that aim to remove children from
their parents on the basis of particular racial, ethnic or indigenous backgrounds.
Systematic targeting of girls belonging to ethnic minorities for rape, trafficking, or
recruitment into armed forces or groups also may be analysed within this Convention
ground.
7
, 201
rch 2
n Ma
do
hive
6 arc
7268
42.
As with an adult, the religious beliefs . of - a child or refusal to hold such beliefs
13
, No
may put him/her at risk of persecution.sions a Convention ground to be established, it is
es For
S
z v.
not necessary that the child dbeuan active practitioner. It is sufficient that the child simply
rig e
-Ro
s
be perceived as in Bringa a certain religious belief or belonging to a sect or religious
holding
93
cited

Religion

group, for example, because of the religious beliefs of his/her parents.

43.
Children have limited, if any, influence over which religion they belong to or
observe, and belonging to a religion can be virtually as innate as one’s ethnicity or
race. In some countries, religion assigns particular roles or behaviour to children. As a
consequence, if a child does not fulfil his/her assigned role or refuses to abide by the
religious code and is punished as a consequence, s/he may have a well-founded fear
of persecution on the basis of religion.
44.
The reasons for persecution related to a child’s refusal to adhere to prescribed
gender roles may also be analysed under this ground. Girls, in particular, may be
affected by persecution on the basis of religion. Adolescent girls may be required to
perform traditional slave duties or to provide sexual services. They also may be
required to undergo FGM or to be punished for honour crimes in the name of religion. 94
In other contexts, children - both boys and girls - may be specifically targeted to join
armed groups or the armed forces of a State in pursuit of religious or related
ideologies.
92

93

94

Universal Declaration of Human Rights, http://www.unhcr.org/refworld/docid/3ae6b3712c.html, Art. 15;
ICCPR, Arts 24(2) and (3); CRC, Art. 7.
UNHCR, Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article
1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees,
HCR/GIP/04/06, 28 Apr. 2004 (hereafter, “UNHCR, Guidelines on Religion-Based Persecution”),
http://www.unhcr.org/refworld/docid/4090f9794.html.
Ibid, para. 24.

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Political opinion
45.
The application of the Convention ground of “political opinion” is not limited to
adult claims. A claim based on political opinion presupposes that the applicant holds, or
is assumed to hold, opinions not tolerated by the authorities or society and that are
critical of generally accepted policies, traditions or methods. Whether or not a child is
capable of holding a political opinion is a question of fact and is to be determined by
assessing the child’s level of maturity and development, level of education, and his/her
ability to articulate those views. It is important to acknowledge that children can be
politically active and hold particular political opinions independently of adults and for
which they may fear being persecuted. Many national liberation or protest movements
are driven by student activists, including schoolchildren. For example, children may be
involved in distributing pamphlets, participating in demonstrations, acting as couriers or
engaging in subversive activities.
46.
In addition, the views or opinions of adults, such as the parents, may be
imputed to their children by the authorities or by non-State actors. 95 This may be the
case even if a child is unable to articulate the political views or activities of the parent,
including where the parent deliberately withholds such information from the child to
protect him/her. In such circumstances, these cases should be analysed not only
according to the political opinion ground but also in terms of the ground pertaining to
membership of a particular social group (in this case, the “family”).
7
47.
The grounds of (imputed) political opinion and religion maycfrequently overlap in
, 201
r h2
n Ma
child asylum claims. In certain societies, the role ascribedetoo women and girls may be
d
hiv
6 rc
attributable to the requirements of the State or officialareligion. The authorities or other
7268
o. 13
agents of persecution may perceive the sfailure of a girl to conform to this role as a
n ,N
essio
S
failure to practice or to hold ucertain religious beliefs. At the same time, failure to
z v.
rig e
-Rod
conform could be interpreted as holding an unacceptable political opinion that
s
inga
in Br
threatens fundamental power structures. This may be the case particularly in societies
cited
where there is little separation between religious and State institutions, laws and
doctrines. 96

Membership of a particular social group
48.
Children’s claims to refugee status most often have been analysed in the
context of the Convention ground of “membership of a particular social group”,
although any of the Convention grounds may be applicable. As stated in UNHCR’s
Guidelines
[a] particular social group is a group of persons who share a common
characteristic other than their risk of being persecuted, or who are perceived
as a group by society. The characteristic will often be one which is innate,
unchangeable, or which is otherwise fundamental to identity, conscience or
the exercise of one’s human rights. 97

95

96
97

See Matter of Timnit Daniel and Simret Daniel, A70 483 789 & A70 483 774, U.S. BIA, 31 Jan. 2002
(unpublished, non-precedent setting decision). The Court found that the notion “that the respondents
were too young to have an actual political opinion is irrelevant; it is enough that the officials believed
that they supported the EPLF.”
UNHCR, Guidelines on Gender-Related Persecution, op. cit. para. 26.
UNHCR, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within
the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of
Refugees, HCR/GIP/02/02, 7 May 2002, http://www.unhcr.org/refworld/docid/3d36f23f4.html, para. 11.

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49.
Although age, in strict terms, is neither innate nor permanent as it changes
continuously, being a child is in effect an immutable characteristic at any given point in
time. A child is clearly unable to disassociate him/herself from his/her age in order to
avoid the persecution feared. 98 The fact that the child eventually will grow older is
irrelevant to the identification of a particular social group, as this is based on the facts
as presented in the asylum claim. Being a child is directly relevant to one’s identity,
both in the eyes of society and from the perspective of the individual child. Many
government policies are age-driven or age-related, such as the age for military
conscription, the age for sexual consent, the age of marriage, or the age for starting
and leaving school. Children also share many general characteristics, such as
innocence, relative immaturity, impressionability and evolving capacities. In most
societies, children are set apart from adults as they are understood to require special
attention or care, and they are referred to by a range of descriptors used to identify or
label them, such as “young”, “infant”, “child”, “boy”, “girl” or “adolescent”. The
identification of social groups also may be assisted by the fact that the children share a
common socially-constructed experience, such as being abused, abandoned,
impoverished or internally displaced.
50.
A range of child groupings, thus, can be the basis of a claim to refugee status
under the “membership of a particular social group” ground. Just as “women” have
been recognized as a particular social group in several jurisdictions, “children” or a
smaller subset of children may also constitute a particular social group. 99 Age and
other characteristics may give rise to groups such as “abandoned children”, 100 “children
7
with disabilities”, “orphans”, or children born outside coercive family planning policies or
, 201
rch 2
of unauthorized marriages, also referred to as “black children”. 101aThe applicant’s family
nM
o
ived
arch
may also constitute a relevant social group. 102
2686
-7
o. 13
ns, N
io
51.
The applicant’s membershipSin sa child-based social group does not necessarily
. es
ez v
drigu his/her childhood ends. The consequences of having
o
cease to exist merely because
as-R
B ing
previously belonged rto such a social group might not end even if the key factor of that
d in
cite

98

See Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008), U.S. BIA, 30 July 2008,
http://www.unhcr.org/refworld/docid/4891da5b2.html, which noted that “we acknowledge that the
mutability of age is not within one’s control, and that if an individual has been persecuted in the past on
account of an age-described particular social group, or faces such persecution at a time when that
individual’s age places him within the group, a claim for asylum may still be cognizable.” (p. 583); LQ
(Age: Immutable Characteristic) Afghanistan v. Secretary of State for the Home Department, [2008]
U.K. AIT 00005, 15 Mar. 2007, http://www.unhcr.org/refworld/docid/47a04ac32.html, finding that the
applicant, “although, assuming he survives, he will in due course cease to be a child, he is immutably a
child at the time of assessment” at 6; Decision V99-02929, V99-02929, Canada, IRB, 21 Feb. 2000,
http://www.unhcr.org/refworld/docid/4b18e5592.html, which found that “[t]he child's vulnerability arises
as a result of his status as a minor. His vulnerability as a minor is an innate and unchangeable
characteristic, notwithstanding the child will grow into an adult.”
99
In In re Fauziya Kasinga, op. cit., it was held that “young women” may constitute a particular social
group.
100
In V97-03500, Canada, Convention Refugee Determination Division, 31 May 1999, it was accepted that
abandoned children in Mexico can be a particular social group. (A summary is available at
http://www2.irb-cisr.gc.ca/en/decisions/reflex/index_e.htm?action=article.view&id=1749). See also RRT
Case
No.
0805331, [2009]
RRTA
347, Australia,
RRT,
30
April
2009,
http://www.unhcr.org/refworld/docid/4a2681692.html, where the Tribunal held that the applicant’s (a
two-year old child) particular social group was “children of persecuted dissidents”.
101
This has been affirmed in several decisions in Australia. See, for instance, Chen Shi Hai, op. cit. and
more recently in RRT Case No. 0901642, [2009] RRTA 502, Australia, RRT, 3 June 2009,
http://www.unhcr.org/refworld/docid/4a76ddbf2.html.
102
See Aguirre-Cervantes, op. cit., where the Court found that “[f]amily membership is clearly an
immutable characteristic, fundamental to one's identity”, and noted that “[t]he undisputed evidence
demonstrates that Mr. Aguirre's goal was to dominate and persecute members of his immediate
family.”

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identity (that is, the applicant’s young age) is no longer applicable. For instance, a past
shared experience may be a characteristic that is unchangeable and historic and may
support the identification of groups such as “former child soldiers” 103 or “trafficked
children” for the purposes of a fear of future persecution. 104
52.

Some of the more prominent social groupings include the following:
i.

Street children may be considered a particular social group. Children living
and/or working on the streets are among the most visible of all children, often
identified by society as social outcasts. They share the common characteristics
of their youth and having the street as their home and/or source of livelihood.
Especially for children who have grown up in such situations, their way of life is
fundamental to their identity and often difficult to change. Many of these
children have embraced the term “street children” as it offers them a sense of
identity and belonging while they may live and/or work on the streets for a range
of reasons. They also may share past experiences such as domestic violence,
sexual abuse, and exploitation or being orphaned or abandoned. 105

ii. Children affected by HIV/AIDS, including both those who are HIV-positive and
those with an HIV-positive parent or other relative, may also be considered a
particular social group. The fact of being HIV-positive exists independently of
the persecution they may suffer as a consequence of their HIV status. Their
status or that of their family may set them apart and, while manageable and/or
treatable, their status is by and large unchangeable. 106
h 2,

2017

rc
iii. Where children are singled out as a target group ford recruitment or use by an
n Ma
e o
rchiv
armed force or group, they may form a686 a
particular social group due to the
72
innate and unchangeable nature ofNtheir- age as well as the fact that they are
o. 13
s,
ssion
perceived as a group byzthe esociety in which they live. As with adults, a child
v. S
ue
who evades theas-Rodrigdeserts or otherwise refuses to become associated with
draft,
g
an armed in Brin may be perceived as holding a political opinion in which case
d force
cite
the link to the Convention ground of political opinion may also be established. 107

d)

Internal “flight” or “relocation” alternative

53.
An assessment of the issue of internal flight alternative contains two parts: the
relevance of such an inquiry, and the reasonableness of any proposed area of internal
103

104

105

106

107

rd

In Lukwago v. Ashcroft, Attorney General, 02-1812, U.S. Court of Appeals for the 3 Circuit, 14 May
2003, http://www.unhcr.org/refworld/docid/47a7078c3.html, the Court found that “membership in the
group of former child soldiers who have escaped LRA captivity fits precisely within the BIA’s own
recognition that a shared past experience may be enough to link members of a ‘particular social
group’.”
UNHCR, Guidelines on Victims of Trafficking, para. 39. See also, RRT Case No. N02/42226, [2003]
RRTA 615, Australia, RRT, 30 June 2003, http://www.unhcr.org/refworld/docid/4b17c2b02.html, which
concerned a young woman from Uzbekistan. The identified group was “Uzbekistani women forced into
prostitution abroad who are perceived to have transgressed social mores.”
See, for instance, Matter of B-F-O-, A78 677 043, U.S. BIA, 6 Nov. 2001 (unpublished, non-precedent
decision). The Court found that the applicant, who was an abandoned street child, had a well-founded
fear of persecution based on membership in a particular social group. See also, LQ (Age: Immutable
Characteristic) Afghanistan v. Secretary of State for the Home Department, op. cit. The Tribunal found
that the applicant’s fear of harm as an orphan and street child “would be as a result of his membership
in a part of a group sharing an immutable characteristic and constituting, for the purposes of the
Refugee Convention, a particular social group”, at 7.
See further, CRC, General Comment No. 3: HIV/AIDS and the Rights of the Child, 17 Mar. 2003,
http://www.unhcr.org/refworld/docid/4538834e15.html.
UNHCR, Handbook, paras. 169–171; UNHCR, Guidelines on Religion-Based Persecution, paras. 25–
26.

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relocation. 108 The child’s best interests inform both the relevance and reasonableness
assessments.
54.
As in the case of adults, internal relocation is only relevant where the applicant
can access practically, safely and legally the place of relocation. 109 In particular with
regard to gender-based persecution, such as domestic violence and FGM which are
typically perpetrated by private actors, the lack of effective State protection in one part
of the country may be an indication that the State may also not be able or willing to
protect the child in any other part of the country. 110 If the child were to relocate, for
example, from a rural to an urban area, the protection risks in the place of relocation
would also need to be examined carefully, taking into account the age and coping
capacity of the child.
55.
In cases where an internal flight or relocation alternative is deemed relevant, a
proposed site of internal relocation that may be reasonable in the case of an adult may
not be reasonable in the case of a child. The “reasonableness test” is one that is
applicant-specific and, thus, not related to a hypothetical “reasonable person”. Age and
the best interests of the child are among the factors to be considered in assessing the
viability of a proposed place of internal relocation. 111
56.
Where children are unaccompanied and, therefore, not returning to the country
of origin with family members or other adult support, special attention needs to be paid
as to whether or not such relocation is reasonable. Internal flight or relocation
alternatives, for instance, would not be appropriate in cases where unaccompanied
7
children have no known relatives living in the country of origin and willing to support or
, 201
rch 2
care for them and it is proposed that they relocate to live ondtheiraown without adequate
nM
o
hive
State care and assistance. What is merely inconvenient for an adult might well
6 arc
7268
constitute undue hardship for a child, particularly in the absence of any friend or
o. 13
ns, N
112
essio
relation.
Such relocation may S violate the human right to life, survival and
v.
uez
development, the principleodrig the best interests of the child, and the right not to be
-R of
gas
in Br
subjected to inhumanintreatment. 113
ited
c

57.
If the only available relocation option is to place the child in institutional care, a
proper assessment needs to be conducted of the care, health and educational facilities
that would be provided and with regard to the long-term life prospects of adults who
were institutionalized as children. 114 The treatment as well as social and cultural
108

109
110
111

112

113

114

UNHCR, Guidelines on International Protection No. 4: "Internal Flight or Relocation Alternative" Within
the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of
Refugees, HCR/GIP/03/04, 23 July 2003, http://www.unhcr.org/refworld/docid/3f2791a44.html.
Ibid, para. 7.
Ibid, para. 15.
Ibid, para. 25. See further factors in the CRC, General Comment No. 6, para. 84, on Return to Country
of Origin. Although drafted with a different context in mind, these factors are equally relevant to an
assessment of an internal flight/relocation alternative.
See, for instance, Elmi v. Minister of Citizenship and Immigration, Canada, Federal Court, No. IMM580-98, 12 Mar. 1999, http://www.unhcr.org/refworld/docid/4b17c5932.html.
CRC, Arts. 3, 6 and 37. See also Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, Application No.
13178/03, ECtHR, 12 Oct. 2006, http://www.unhcr.org/refworld/docid/45d5cef72.html, which concerned
the return (not internal relocation) of an unaccompanied five-year old girl. The Court was “struck by the
failure to provide adequate preparation, supervision and safeguards for her deportation”, noting further
that such “conditions was bound to cause her extreme anxiety and demonstrated such a total lack of
humanity towards someone of her age and in her situation as an unaccompanied minor as to amount
to inhuman treatment [violation of article 3 of the European Convention on Human Rights]”, paras. 66,
69.
See CRC, General Comment No. 6, para. 85. See also Inter-Agency Guiding Principles, op cit., which
notes that institutional care needs to be considered a last resort, as “residential institutions can rarely
offer the developmental care and support a child requires and often cannot even provide a reasonable

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perceptions of orphans and other children in institutionalized care needs to be
evaluated carefully as such children may be the subject of societal disapproval,
prejudice or abuse, thus rendering the proposed site for relocation unreasonable in
particular circumstances.
e)

The application of exclusion clauses to children

58.
The exclusion clauses contained in Article 1F of the 1951 Convention provide
that certain acts are so grave that they render their perpetrators undeserving of
international protection as refugees. 115 Since Article 1F is intended to protect the
integrity of asylum, it needs to be applied “scrupulously”. As with any exception to
human rights guarantees, a restrictive interpretation of the exclusion clauses is
required in view of the serious possible consequences of exclusion for the individual. 116
The exclusion clauses are exhaustively enumerated in Article 1F, and no reservations
are permitted. 117
59.
In view of the particular circumstances and vulnerabilities of children, the
application of the exclusion clauses to children always needs to be exercised with great
caution. In the case of young children, the exclusion clauses may not apply at all.
Where children are alleged to have committed crimes while their own rights were being
violated (for instance while being associated with armed forces or armed groups), it is
important to bear in mind that they may be victims of offences against international law
and not just perpetrators. 118
17

2
60.
Although the exclusion clauses of Article 1F do not distinguish 0between adults
h 2,
Marc
n has reached the age of
and children, Article 1F can be applied to a child onlyrcif ived o
h s/he
6a
criminal responsibility as established by international and/or national law at the time of
7268
. 13119
the commission of the excludable act.ssions, No a child below such minimum age cannot
Thus,
e
z v excludable act. 120 Article 40 of the CRC requires
be considered responsible foruean. S
rig
cited

od
as-R
Bring
in

standard of protection”, p. 46.
UNHCR’s interpretative legal guidance on the substantive and procedural standards for the application
of Art. 1F is set out in UNHCR, Guidelines on International Protection No. 5: Application of the
Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,
HCR/GIP/03/05,
4
Sep.
2003,
(hereafter:
“UNHCR,
Guidelines
on
Exclusion”)
http://www.unhcr.org/refworld/docid/3f5857684.html; UNHCR, Background Note on the Application of
the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 Sep.
2003,
(hereafter
“UNHCR,
Background
Note
on
Exclusion”),
http://www.unhcr.org/refworld/docid/3f5857d24.html; UNHCR, Statement on Article 1F of the 1951
Convention,
July
2009,
(hereafter
“UNHCR,
Statement
on
Article
1F”),
http://www.unhcr.org/refworld/docid/4a5de2992.html, and UNHCR, Handbook, paras. 140–163.
116
UNHCR, Guidelines on Exclusion, para. 2; UNHCR Background Note on Exclusion, para. 4. UNHCR,
Handbook para. 149. See also ExCom Conclusions No. 82 (XLVIII), Safeguarding Asylum, 17 Oct.
1997, http://www.unhcr.org/refworld/docid/3ae68c958.html, para. (v); No. 102 (LVI) 2005, General
Conclusion
on
International
Protection,
7
Oct.
2005,
http://www.unhcr.org/refworld/docid/43575ce3e.html, para. (i); No. 103 (LVI), Conclusion on the
Provision on International Protection Including Through Complementary Forms of Protection, 7 Oct.
2005, http://www.unhcr.org/refworld/docid/43576e292.html, para. (d).
117
UNHCR, Guidelines on Exclusion, para. 3; UNHCR, Background Note on Exclusion, para. 7.
118
The Paris Principles state: “Children who are accused of crimes under international law allegedly
committed while they were associated with armed forces or armed groups should be considered
primarily as victims of offences against international law; not only as perpetrators. They must be
treated in accordance with international law in a framework of restorative justice and social
rehabilitation, consistent with international law which offers children special protection through
numerous agreements and principles,” para. 3.6. It should also be noted that the prosecutor for the
SCSL chose not to prosecute children between the ages of 15 and 18 years given that they themselves
were victims of international crimes.
119
UNHCR, Guidelines on Exclusion, para. 28.
120
UNHCR, Background Note on Exclusion, para. 91. If the age of criminal responsibly is higher in the
115

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States to establish a minimum age for criminal responsibility, but there is no universally
recognized age limit. 121 In different jurisdictions, the minimum age ranges from 7 years
to higher ages, such as 16 or 18 years, while the Statutes of the Special Court for
Sierra Leone 122 and the International Criminal Court 123 set the cut-off age at 15 years
and 18 years respectively.
61.
In view of the disparities in establishing a minimum age for criminal
responsibility by States and in different jurisdictions, the emotional, mental and
intellectual maturity of any child over the relevant national age limit for criminal
responsibility would need to be evaluated to determine whether s/he had the mental
capacity to be held responsible for a crime within the scope of Article 1F. Such
considerations are particularly important where the age limit is lower on the scale but is
also relevant if there is no proof of age and it cannot be established that the child is at,
or above, the age for criminal responsibility. The younger the child, the greater the
presumption that the requisite mental capacity did not exist at the relevant time.
62.
As with any exclusion analysis, a three-step analysis needs to be undertaken if
there are indications that the child has been involved in conduct which may give rise to
exclusion. 124 Such an analysis requires that: (i) the acts in question be assessed
against the exclusion grounds, taking into account the nature of the acts as well as the
context and all individual circumstances in which they occurred; (ii) it be established in
each case that the child committed a crime which is covered by one of the sub-clauses
of Article 1F, or that the child participated in the commission of such a crime in a
manner which gives rise to criminal liability in accordance with internationally applicable
standards; and (iii) it be determined, in cases where individual, 2responsibility is
017
h2
established, whether the consequences of exclusion dfromarcrefugee status are
nM
e o
a
proportional to the seriousness of the act committed. 125rchiv
2686
-7
o. 13
ns, N
63.
It is important to undertake ssio thorough and individualized analysis of all
Se a
z v.
ig e
drInuthe case of a child, the exclusion analysis needs to take
circumstances in each case.
Ro
gasin Br general exclusion principles but also the rules and principles that
into account notdonlyin
cite

address the special status, rights and protection afforded to children under international
and national law at all stages of the asylum procedure. In particular, those principles
related to the best interest of the child, the mental capacity of children and their ability
to understand and consent to acts that they are requested or ordered to undertake
need to be considered. A rigorous application of legal and procedural standards of
exclusion is also critical. 126

121

122
123
124

125
126

country of origin than in the host country, this should be taken into account in the child’s favour.
The Committee on the Rights of the Child urged States not to lower the minimum age to 12 years and
noted that a higher age, such as 14 or 16 years, “contributes to a juvenile justice system which […]
deals with children in conflict with the law without resorting to judicial proceedings”; see, CRC, General
Comment No. 10 (2007): Children's Rights in Juvenile Justice, CRC/C/GC/10, 25 Apr. 2007,
http://www.unhcr.org/refworld/docid/4670fca12.html, para. 33. See also UN General Assembly, United
Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"),
A/RES/40/33,
29
Nov.
1985,
http://www.unhcr.org/refworld/docid/
3b00f2203c.html, which provides that the “beginning of that age should not be fixed at a too low an age
level bearing in mind the facts of emotional, mental and intellectual maturity”, Art. 4.1.
UN Security Council, Statute of the Special Court for Sierra Leone, 16 Jan. 2002, Art. 7.
ICC Statute, Art. 26.
For further information on exclusion concerning child soldiers, see UNHCR, Advisory Opinion From the
Office of the United Nations High Commissioner for Refugees (UNHCR) Regarding the International
Standards for Exclusion From Refugee Status as Applied to Child Soldiers, 12 Sep. 2005 (hereafter
“UNHCR, Advisory Opinion on the Application of Exclusion Clauses to Child Soldiers”),
http://www.unhcr.org/refworld/docid/440eda694.html.
UNHCR, Statement on Article 1F, p. 7.
For a detailed analysis on procedural issues regarding exclusion, see UNHCR, Guidelines on
Exclusion, paras. 31–36 and UNHCR, Background Note on Exclusion, paras. 98–113.

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64.
Based on the above, the following considerations are of central importance in
the application of the exclusion clauses to acts committed by children:
i.

When determining individual responsibility for excludable acts, the issue of
whether or not a child has the necessary mental state (or mens rea), that
is, whether or not the child acted with the requisite intent and knowledge to
be held individually responsible for an excludable act, is a central factor in
the exclusion analysis. This assessment needs to consider elements such
as the child’s emotional, mental and intellectual development. It is important
to determine whether the child was sufficiently mature to understand the
nature and consequences of his/her conduct and, thus, to commit, or
participate in, the commission of the crime. Grounds for the absence of the
mens rea include, for example, severe mental disabilities, involuntary
intoxication, or immaturity.

ii. If mental capacity is established, other grounds for rejecting individual
responsibility need to be examined, notably whether the child acted under
duress, coercion, or in defence of self or others. Such factors are of
particular relevance when assessing claims made by former child soldiers.
Additional factors to consider may include: the age at which the child
became involved in the armed forces or group; the reasons for which s/he
joined and left the armed forces or group; the length of time s/he was a
member; the consequences of refusal to join the group; any forced use of
drugs, alcohol or medication; the level of education and , understanding of
2017
rch 2
the events in question; and the trauma, abuse ordill-treatment suffered. 127
n Ma
o
iii.

hive
6 arc
7268
. 1 established, it needs to be determined
Finally, if individual responsibility ois 3ns, N
essio
whether or not the consequences of exclusion from refugee status are
S
z v.
rigue
proportionals-to dthe seriousness of the act committed. 128 This generally
Ro
inga
in r
involves Ba weighing of the gravity of the offence against the degree of
cited

persecution feared upon return. If the applicant is likely to face severe
persecution, the crime in question needs to be very serious in order to
exclude him/her from refugee status. Issues for consideration include any
mitigating or aggravating factors relevant to the case. When assessing a
child’s claim, even if the circumstances do not give rise to a defence, factors
such as the age, maturity and vulnerability of the child are important
considerations. In the case of child soldiers, such factors include illtreatment by military personnel and circumstances during service. The
consequences and treatment that the child may face upon return (i.e.
serious human rights violations as a consequence of having escaped the
armed forces or group) also need to be considered.

127

128

Decisions in France have recognized that children who committed offences, which should in principle
lead to the application of the exclusion clauses, may be exonerated if they were in particularly
vulnerable situations. See, for instance, 459358, M.V.; Exclusion, CRR, 28 Apr. 2005,
M.C,
CRR,
28
Jan.
2005,
http://www.unhcr.org/refworld/docid/43abf5cf4.html; 448119,
http://www.unhcr.org/refworld/docid/4b17b5d92.html. See also, MH (Syria) v. Secretary of State for the
Home Department; DS (Afghanistan) v. Secretary of State for the Home Department, [2009] EWCA Civ
226, Court of Appeal (U.K.), 24 Mar. 2009, http://www.unhcr.org/refworld/docid/49ca60ae2.html, para.
3. For detailed guidance on grounds rejecting individual responsibility, see, UNHCR Guidelines on
Exclusion, paras. 21–24. UNHCR, Background Note on Exclusion, paras. 91–93. UNHCR, Advisory
Opinion on the Application of Exclusion Clauses to Child Soldiers, op cit. pp. 10–12.
For detailed guidance on proportionality see UNHCR, Guidelines on Exclusion, para. 24; UNHCR,
Background Note on Exclusion, paras. 76–78.

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IV.

PROCEDURAL AND EVIDENTIARY ISSUES

65.
Due to their young age, dependency and relative immaturity, children should
enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status
determination decisions are reached with respect to their claims. 129 The general
measures outlined below set out minimum standards for the treatment of children
during the asylum procedure. They do not preclude the application of the detailed
guidance provided, for example, in the Action for the Rights of Children Resources
Pack, 130 the Inter-Agency Guiding Principles on Unaccompanied and Separated
Children and in national guidelines. 131
66.
Claims made by child applicants, whether they are accompanied or not, should
normally be processed on a priority basis, as they often will have special protection and
assistance needs. Priority processing means reduced waiting periods at each stage of
the asylum procedure, including as regards the issuance of a decision on the claim.
However, before the start of the procedure, children require sufficient time in which to
prepare for and reflect on rendering the account of their experiences. They will need
time to build trusting relationships with their guardian and other professional staff and
to feel safe and secure. Generally, where the claim of the child is directly related to the
claims of accompanying family members or the child is applying for derivative status, it
will not be necessary to prioritise the claim of the child unless other considerations
suggest that priority processing is appropriate. 132
67.
There is no general rule prescribing in whose name a child’s 7asylum claim
1
ought to be made, especially where the child is particularly young hor, 20 claim is based
rc 2 a
n Ma applicable national
do
on a parent’s fear for their child’s safety. This will rdepend on
hive
6ac
regulations. Sufficient flexibility is needed, nevertheless, to allow the name of the
7268
o. 13
principal applicant to be amended durings,proceedings if, for instance, it emerges that
n N
essio
S
z v.
the more appropriate principal uapplicant is the child rather than the child’s parent. This
rig e
-Rod
flexibility ensures thatgas
administrative technicalities do not unnecessarily prolong the
Brin
process. 133 cited in
68.
For unaccompanied and separated child applicants, efforts need to be made as
soon as possible to initiate tracing and family reunification with parents or other family
members. There will be exceptions, however, to these priorities where information
becomes available suggesting that tracing or reunification could put the parents or
129

130

131

132

133

The relevant applicable age for children to benefit from the additional procedural safeguards elaborated
in this section is the date the child seeks asylum and not the date a decision is reached. This is to be
distinguished from the substantive assessment of their refugee claim in which the prospective nature of
the inquiry requires that their age at the time of the decision may also be relevant.
Action for the rights of children, ARC Resource Pack, a capacity building tool for child protection in and
after emergencies, produced by Save the Children, UNHCR, UNICEF, OHCHR, International Rescue
Committee and Terre des Hommes, 7 Dec. 2009, http://www.savethechildren.net/arc.
See, for instance, U.K. Asylum Instruction, Processing an Asylum Application from a Child, 2 Nov.
2009,
http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/special
cases/guidance/processingasylumapplication1.pdf?view=Binary; U.K. Border Agency Code of Practice
for Keeping Children Safe from Harm, Dec. 2008, http://www.unhcr.org/refworld/docid/4948f8662.html;
Finland, Directorate of Immigration, Guidelines for Interviewing (Separated) Minors, Mar. 2002,
http://www.unhcr.org/refworld/docid/430ae8d72.html; U.S. Guidelines For Children's Asylum Claims, op
cit.; Canada, IRB, Guidelines Issued by the Chairperson Pursuant to Section 65(4) of the Immigration
Act: Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues, 30 Sep. 1996, No. 3,
http://www.unhcr.org/refworld/docid/3ae6b31d3b.html.
UNHCR, Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 20 Nov.
2003, http://www.unhcr.org/refworld/docid/42d66dd84.html, pages 3.25, 4.21–4.23.
This is especially relevant in relation to claims, such as FGM or forced marriage, where parents flee
with their child in fear for his/her life although the child may not fully comprehend the reason for flight.

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other family members in danger, that the child has been subjected to abuse or neglect,
and/or where parents or family members may be implicated or have been involved in
their persecution. 134
69.
An independent, qualified guardian needs to be appointed immediately, free of
charge in the case of unaccompanied or separated children. Children who are the
principal applicants in an asylum procedure are also entitled to a legal
representative. 135 Such representatives should be properly trained and should support
the child throughout the procedure.
70.
The right of children to express their views and to participate in a meaningful
way is also important in the context of asylum procedures. 136 A child’s own account of
his/her experience is often essential for the identification of his/her individual protection
requirements and, in many cases, the child will be the only source of this information.
Ensuring that the child has the opportunity to express these views and needs requires
the development and integration of safe and child-appropriate procedures and
environments that generate trust at all stages of the asylum process. It is important that
children be provided with all necessary information in a language and manner they
understand about the possible existing options and the consequences arising from
them. 137 This includes information about their right to privacy and confidentiality
enabling them to express their views without coercion, constraint or fear of
retribution. 138
71.
Appropriate communication methods need to be selected for the different
stages of the procedure, including the asylum interview, and need to , take into account
2017
h2
the age, gender, cultural background and maturity of dtheMarc
n child as well as the
o
hive
circumstances of the flight and mode of arrival. 139 8Useful, non-verbal communication
6 arc
726
methods for children might include playing, o. 13drawing, writing, role-playing, story-telling
ns, N
and singing. Children with disabilitiesssio
v. Se require “whatever mode of communication they
uez
o rig
need to facilitate expressingdtheir views”. 140
as-R
in
cited

Bring

72.
Children cannot be expected to provide adult-like accounts of their experiences.
They may have difficulty articulating their fear for a range of reasons, including trauma,
parental instructions, lack of education, fear of State authorities or persons in positions
of power, use of ready-made testimony by smugglers, or fear of reprisals. They may be
too young or immature to be able to evaluate what information is important or to
interpret what they have witnessed or experienced in a manner that is easily
understandable to an adult. Some children may omit or distort vital information or be
unable to differentiate the imagined from reality. They also may experience difficulty
134

135

136

137
138
139

140

Family tracing and reunification have been addressed in a number of ExCom Conclusions, including
most recently in ExCom, Conclusion No. 107, para. (h)(iii). See also UNHCR, Guidelines on
Determining the Best Interests of the Child, op cit.; CRC, General Comment No. 6, para. 81.
“Guardian” here refers to an independent person with specialized skills who looks after the child’s best
interests and general well-being. Procedures for the appointment of a guardian must not be less
favourable than the existing national administrative or judicial procedures used for appointing
guardians for children who are nationals in the country. “Legal representative” refers to a lawyer or
other person qualified to provide legal assistance to, and inform, the child in the asylum proceedings
and in relation to contacts with the authorities on legal matters. See ExCom, Conclusion No. 107, para.
(g)(viii). For further details, see CRC, General Comment No. 6, paras. 33–38, 69. See also UNHCR,
Guidelines on Unaccompanied Children Seeking Asylum, op cit., p. 2 and paras. 4.2, 5.7, 8.3, 8.5.
CRC, Art. 12. The CRC does not set any lower age limit on children’s right to express their views freely
as it is clear that children can and do form views from a very early age.
CRC, General Comment No. 6, para. 25; CRC, General Comment No. 12, paras. 123–124.
CRC, Arts. 13, 17.
Separated Children in Europe Programme, SCEP Statement of Good Practice, Third edition, 2004,
http://www.unhcr.org/refworld/docid/415450694.html, para. 12.1.3.
CRC, General Comment No. 9, para. 32.

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relating to abstract notions, such as time or distance. Thus, what might constitute a lie
in the case of an adult might not necessarily be a lie in the case of a child. It is,
therefore, essential that examiners have the necessary training and skills to be able to
evaluate accurately the reliability and significance of the child’s account. 141 This may
require involving experts in interviewing children outside a formal setting or observing
children and communicating with them in an environment where they feel safe, for
example, in a reception centre.
73.
Although the burden of proof usually is shared between the examiner and the
applicant in adult claims, it may be necessary for an examiner to assume a greater
burden of proof in children’s claims, especially if the child concerned is
unaccompanied. 142 If the facts of the case cannot be ascertained and/or the child is
incapable of fully articulating his/her claim, the examiner needs to make a decision on
the basis of all known circumstances, which may call for a liberal application of the
benefit of the doubt. 143 Similarly, the child should be given the benefit of the doubt
should there be some concern regarding the credibility of parts of his/her claim. 144
74.
Just as country of origin information may be gender-biased to the extent that it
is more likely to reflect male as opposed to female experiences, the experiences of
children may also be ignored. In addition, children may have only limited knowledge of
conditions in the country of origin or may be unable to explain the reasons for their
persecution. For these reasons, asylum authorities need to make special efforts to
gather relevant country of origin information and other supporting evidence.
75.
Age assessments are conducted in cases when a child’s age 0is7 in doubt and
2 1
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need to be part of a comprehensive assessment that takesMarc account both the
n into
o
ived
a h
physical appearance and the psychological maturity 6ofrcthe individual. 145 It is important
7268
13that such assessments are conducted ins,a osafe, child- and gender-sensitive manner
N .
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esThe margin of appreciation inherent to all agewith due respect for human dignity.
v. S
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assessment methods needsdrig be applied in such a manner that, in case of uncertainty,
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the individual will in Brin
be considered a child. 146 As age is not calculated in the same way
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universally or given the same degree of importance, caution needs to be exercised in
making adverse inferences of credibility where cultural or country standards appear to
lower or raise a child’s age. Children need to be given clear information about the
purpose and process of the age-assessment procedure in a language they understand.
Before an age assessment procedure is carried out, it is important that a qualified
independent guardian is appointed to advise the child.
76.
In normal circumstances, DNA testing will only be done when authorized by law
and with the consent of the individuals to be tested, and all individuals will be provided
with a full explanation of the reasons for such testing. In some cases, however, children
may not be able to consent due to their age, immaturity, inability to understand what
this entails or for other reasons. In such situations, their appointed guardian (in the
absence of a family member) will grant or deny consent on their behalf taking into
account the views of the child. DNA tests should be used only where other means for
verification have proven insufficient. They may prove particularly beneficial in the case
of children who are suspected of having been trafficked by individuals claiming to be

141

ExCom, Conclusion No. 107, para. (d).
Ibid, para. (g)(viii), which recommends that States develop adapted evidentiary requirements.
143
UNHCR, Handbook, paras. 196, 219.
144
Inter-Agency Guiding Principles, op. cit., p. 61.
145
ExCom, Conclusion No. 107, para. (g)(ix).
146
Ibid, para. (g)(ix); UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied
Children Seeking Asylum, op cit., paras. 5.11, 6.
142

27

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parents, siblings or other relatives. 147
77.
Decisions need to be communicated to children in a language and in a manner
they understand. Children need to be informed of the decision in person, in the
presence of their guardian, legal representative, and/or other support person, in a
supportive and non-threatening environment. If the decision is negative, particular care
will need to be taken in delivering the message to the child and explaining what next
steps may be taken in order to avoid or reduce psychological stress or harm.

cited

147

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UNHCR, Note on DNA Testing to Establish Family Relationships in the Refugee Context, June 2008,
http://www.unhcr.org/refworld/docid/48620c2d2.html.

28

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NORTH AMERICA ::

MEXICO

PAGE LAST UPDATED ON JANUARY 12, 2017

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Introduction :: MEXICO
Geography :: MEXICO
People and Society :: MEXICO
Population:
123,166,749 (July 2016 est.)
country comparison to the world: 12

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Nationality:
noun: Mexican(s)
adjective: Mexican
Ethnic groups:

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mestizo (Amerindian-Spanish) 62%, predominantly Amerindian 21%, Amerindian 7%, other 10% (mostly European)
note: Mexico does not collect census data on ethnicity (2012 est.)
Languages:
Spanish only 92.7%, Spanish and indigenous languages 5.7%, indigenous only 0.8%, unspecified 0.8%
note: indigenous languages include various Mayan, Nahuatl, and other regional languages (2005)
Religions:
Roman Catholic 82.7%, Pentecostal 1.6%, Jehovah's Witness 1.4%, other Evangelical Churches 5%, other 1.9%, none 4.7%,
unspecified 2.7% (2010 est.)
Age structure:
0-14 years: 27.26% (male 17,167,636/female 16,402,301)
15-24 years: 17.72% (male 11,049,818/female 10,770,843)
25-54 years: 40.69% (male 24,174,900/female 25,938,909)
55-64 years: 7.41% (male 4,187,644/female 4,944,802)
65 years and over: 6.93% (male 3,827,870/female 4,702,026) (2016 est.)
population pyramid:
Dependency ratios:
total dependency ratio: 51.7%

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Case: 13-72682, 03/08/2017, ID: 10347634, DktEntry: 121-3, Page 124 of 127
youth dependency ratio: 41.9%
elderly dependency ratio: 9.8%
potential support ratio: 10.2% (2015 est.)
Median age:
total: 28 years
male: 26.9 years
female: 29.1 years (2016 est.)
country comparison to the world: 133
Population growth rate:
1.15% (2016 est.)
country comparison to the world: 102
Birth rate:
18.5 births/1,000 population (2016 est.)
country comparison to the world: 93
Death rate:
5.3 deaths/1,000 population (2016 est.)
country comparison to the world: 177
Net migration rate:

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-1.7 migrant(s)/1,000 population (2016 est.)
country comparison to the world: 155
Population distribution:

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most of the population is found in the middle of theiguez
dr country between the states of Jalisco and Veracruz; approximately a quarter of
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Urbanization:

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urban population: 79.2% of total population (2015)
rate of urbanization: 1.57% annual rate of change (2010-15 est.)
Major urban areas - population:
MEXICO CITY (capital) 20.999 million; Guadalajara 4.843 million; Monterrey 4.513 million; Puebla 2.984 million; Toluca de Lerdo
2.164 million; Tijuana 1.987 million (2015)
Sex ratio:
at birth: 1.05 male(s)/female
0-14 years: 1.05 male(s)/female
15-24 years: 1.03 male(s)/female
25-54 years: 0.93 male(s)/female
55-64 years: 0.85 male(s)/female
65 years and over: 0.82 male(s)/female
total population: 0.96 male(s)/female (2016 est.)
Mother's mean age at first birth:
21.3 (2008 est.)
Maternal mortality rate:
38 deaths/100,000 live births (2015 est.)

Case: 13-72682, 03/08/2017, ID: 10347634, DktEntry: 121-3, Page 125 of 127
country comparison to the world: 108
Infant mortality rate:
total: 11.9 deaths/1,000 live births
male: 13.3 deaths/1,000 live births
female: 10.4 deaths/1,000 live births (2016 est.)
country comparison to the world: 122
Life expectancy at birth:
total population: 75.9 years
male: 73.1 years
female: 78.8 years (2016 est.)
country comparison to the world: 93
Total fertility rate:
2.25 children born/woman (2016 est.)
country comparison to the world: 95
Contraceptive prevalence rate:
72.5% (2009)
Health expenditures:
6.3% of GDP (2014)

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country comparison to the world: 108

1.5 beds/1,000 population (2011) ited
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Drinking water source:
improved:
urban: 97.2% of population
rural: 92.1% of population
total: 96.1% of population
unimproved:
urban: 2.8% of population
rural: 7.9% of population
total: 3.9% of population (2015 est.)
Sanitation facility access:
improved:
urban: 88% of population
rural: 74.5% of population
total: 85.2% of population
unimproved:
urban: 12% of population

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Hospital bed density:

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2.1 physicians/1,000 population (2011)

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Physicians density:

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rural: 25.5% of population
total: 14.8% of population (2015 est.)
HIV/AIDS - adult prevalence rate:
0.24% (2015 est.)
country comparison to the world: 95
HIV/AIDS - people living with HIV/AIDS:
198,200 (2015 est.)
country comparison to the world: 30
HIV/AIDS - deaths:
4,000 (2015 est.)
country comparison to the world: 28
Major infectious diseases:
degree of risk: intermediate
food or waterborne diseases: bacterial diarrhea and hepatitis A
vectorborne disease: dengue fever
note: active local transmission of Zika virus by Aedes species mosquitoes has been identified in this country (as of August 2016); it
poses an important risk (a large number of cases possible) among US citizens if bitten by an infective mosquito; other less common
ways to get Zika are through sex, via blood transfusion, or during pregnancy, in which the pregnant woman passes Zika virus to her
fetus (2016)

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Obesity - adult prevalence rate:

country comparison to the world: 23

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2.8% (2012)

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country comparison to the world: 117
Education expenditures:
5.2% of GDP (2012)
country comparison to the world: 72
Literacy:
definition: age 15 and over can read and write
total population: 95.1%
male: 96.2%
female: 94.2% (2012 est.)
School life expectancy (primary to tertiary education):
total: 13 years
male: 13 years
female: 13 years (2014)
Child labor - children ages 5-14:
total number: 1,105,617
percentage: 5% (2009 est.)
Unemployment, youth ages 15-24:

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27.6% (2014)

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total: 9.6%

Case: 13-72682, 03/08/2017, ID: 10347634, DktEntry: 121-3, Page 127 of 127

male: 9.2%
female: 10.3% (2014 est.)
country comparison to the world: 104
Government :: MEXICO
Economy :: MEXICO
Energy :: MEXICO
Communications :: MEXICO
Transportation :: MEXICO
Military and Security :: MEXICO
Transnational Issues :: MEXICO

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