“Is it for real?” Investigating genuineness in the invocation of reasons for protection

Researchers: Hanna Wikström and Rebecca Thorburn Stern

This subproject examines the investigation of the so-called genuineness of certain types of reasons invoked for being granted asylum. By investigation of genuineness is meant what importance is afforded to what is genuine in a person’s religious conviction or sexual orientation in assessing the need for protection, how such an investigation is done, and how much weight the manifestation of a certain conviction or orientation is given in the evaluation of the credibility of the conviction/orientation invoked. Furthermore, the project addresses how the investigation of genuineness relates to the concept of “ascribed perception” as a ground for protection, that is, the importance of a perception or orientation that a person is regarded or may be assumed to be regarded as harbouring/having, regardless of whether this tallies with the truth. This question is relevant and topical owing to the central importance of credibility in the assessment of the need for protection, at the same time as credibility assessments largely rely on subjective perceptions as well as culturally and socially coloured preconceptions regarding how people act in certain situations or contexts. The project is being conducted by Hanna Wikström, Ph.D. in social work, and Rebecca Thorburn Stern, LL.D. in public international law. The project period is 1 July 2013 – 30 June 2015.

The two situations under investigation in the project are converts sur place and persons who claim a sexual orientation they did not live openly with in their home country as a ground for a need for protection. These two areas were selected, on the one hand, because the concept of “investigation of genuineness” has been used in Swedish courts in cases involving converts and, on the other hand, because preconceptions and expectations regarding how a person behaves or is expected to behave as a convert or as being of a certain sexual orientation are strongly coloured by the cultural and social context in which the assessors themselves exist.

The principal purpose is to examine how people at different levels reason in decisions and judgements regarding the extremely difficult matter of judging another person’s conviction or orientation in questions that are so deeply personal and private as religious faith or sexual orientation. The aim is not only for the project findings to be of use as further guidance in these judgements, but also as a basis for reflection about what types of judgements are actually possible from a judicial perspective. Issues addressed include the importance afforded to the manifestation of a certain conviction or orientation and/or praxis in the judgement of a need for protection, as well as to what extent the ascribed perception is afforded the same importance.

The study will begin with a review of doctrine regarding the assessment of the need for protection on the basis of religious conviction and sexual orientation, with an emphasis on discussions about judgements of credibility. The issue of how identity is constructed and manifested will be taken up here. Thereafter follows an empirical study that analyses selected decisions from migration courts in which religion or sexual orientation were grounds for the application for protection. To some extent this selection will be determined by the availability of decisions and judgements, but decisions/judgements from two different time periods, before and after MIG 2011:29 (a precedent-setting decision from the Supreme Migration Court involving conversion and credibility judgements) will probably be studied. No such precedent-setting decisions exist today regarding sexual orientation, which entails that in this matter the analysis will have to focus on analogous reasoning and decisions from lower courts where the issue is represented to a greater extent. The reasoning in these decisions with thereafter be compared for the purpose of identifying similarities and differences. Some comparisons will be made with decisions from other EU countries as well as Australia and Canada. Finally, there will be a discussion of, on the one hand, attitudes to judgements of genuineness and, on the other hand, of whether it is possible to make such judgements in an objective manner.

The subproject is a postdoctoral project at the Department of Law, Uppsala University.

A more detailed description of the subproject can be downloaded here (pdf).

Read a brief report from the subproject (in Swedish, June 2015).