Canada’s Reception of LGBTQ+ Refugees
The UN Convention Relating to the Status of Refugees (Refugee Convention) is the basis for refugee law in Canada. Convention refugees are people who are outside their home country or the country where they normally live, and who are unwilling to return because of a well-founded fear of persecution based on race, religion, political opinion, nationality, or membership in a “particular social group.” To be accepted as a refugee and receive permanent residence status, an asylum seeker must demonstrate, before the Immigration and Refugee Board (IRB) of Canada, that they face persecution based on one of these grounds. (The IRB is an administrative tribunal responsible for adjudicating refugee claims.)
Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ+) refugees claiming protection in Canada must show that they have a well-founded fear of persecution because of their gender identity or sexual orientation, and they must also show that their state is unable or unwilling to protect them. While the Refugee Convention is silent on the persecution of LGBTQ+ refugees specifically, the Supreme Court of Canada has ruled, in a landmark (and precedent-setting) decision, that sexual orientation should be seen as a “social group” within the context of determining convention refugee status (Canada [Attorney General] v. Ward,  2 S.C.R. 689). That ruling opened up the way for LGBTQ+ refugees to seek protection in Canada.
Refugees can also come to Canada through resettlement programs, with the assistance of the United Nations High Commissioner for Refugees (UNHCR), the United Nations body in charge of forced migration and subsequent protection of affected populations. The Government of Canada can either resettle refugees directly, or they can come through the private sponsorship program supported by organizations or individuals. Refugees become permanent residents upon arrival in Canada.
History of LGBTQ+ Refugee Movements to Canada
Same-sex relationships and fluid gender identities continue to be criminalized and stigmatized in many parts of the world. Throughout the 20th century, Canada was not immune to persecuting and ostracising LGBTQ+ persons (see Prejudice and Discrimination in Canada). However, changings societal mores led Canada to become a leading country in the advancement and protection of LGBTQ+ rights, including legalizing same-sex marriage.
In 1991, Canada also became one of the first Western nations to grant refugee status on the basis of sexual orientation. Then, in 1993, in a seminal decision (Canada [A.G.] v. Ward),the Supreme Court of Canada explicitly defined the “social group” category of the refugee definition to include sexual orientation. As a result, the Immigration and Refugee Board (IRB) has adjudicated thousands of cases of persecution based on someone’s gender identity or sexual orientation. In addition, in 1977, the Canadian Immigration Act was amended, lifting a ban prohibiting gay men and women from immigrating (see also Immigration Policy in Canada). The amendment came into effect on 1 April 1978.
LGBTQ+ refugee claims are successful at higher rates than other types of refugee claims: 2,371 (or 13 per cent) of all 18,221 asylum decisions made between 2013 and 2015 were based, mainly, on sexual orientation (unlike all the others, in 137 claims, sexual orientation was included as a basis, but not the primary one), and 70.5 per cent of claims were granted, compared to 62.5 per cent of all claims. However, LGBTQ+ claims also present specific challenges, both for the adjudicator of the claim as well as for the refugee.
Challenges faced by LGBTQ+ Refugees while in Canada
LGBTQ+ refugees face unique challenges when preparing their refugee cases. Among these challenges, there can be difficulty in gathering sensitive evidence about very personal behaviours, and refugees often face assumptions about their credibility, based on outdated attitudes about human sexuality and gender identity.
Inherently, being persecuted for one’s sexual orientation and gender identity means having to hide facets of one’s life for fear of being harmed. Many people are not able to be open about their sexual orientation or gender identity in their home countries and thus cannot provide evidentiary records of their relationships. Moreover, many refugees are uncomfortable discussing their private lives with strangers adjudicating their claims, or even with people from their country or ethnic group who may be interpreting or assisting with their case; these claimants may fear that their sexual orientation and gender identity could be revealed in their community. Outing someone can have grave consequences, as same-sex relations remain criminalized in approximately 73 countries over the world, with 13 countries currently having the death penalty on the books (five of those countries are not implementing it).
Ongoing trauma and having to hide a central part of one’s identity has profound impacts on a person’s self-concept, mental health, and memory, and these impacts can come to light during a refugee hearing.
The Immigration and Refugee Board of Canada (IRB), recognizes these unique challenges. In May 2017, after lengthy public consultation, the IRB released a new set of guidelines for the adjudication of sexual orientation and gender-based identity cases. These guidelines include the use of appropriate language, protection of sensitive information, avoidance of stereotyping when making findings of fact, as well as providing guidance on appropriate evidence. The UNHCR’s own guidelines and training (on assessing and adjudicating claims based on sexual orientation and gender identity) provide guiding principles internationally, including country-specific documentation on LGBTQ+ persecution. As well, there are guidelines on how to assess credibility when dealing with highly complex issues of sexuality and gender.
Promising Directions for LGBTQ+ Refugees
In addition to the IRB guidelines on sexual orientation and gender-based claims for refugee protection, there have also been opportunities for Canada to pursue advocacy and diplomacy to support and protect LGBTQ+ refugees.
Canada’s complex resettlement system includes categories of urgent risk, in which cases can be processed very quickly. For example, as a result of the UNHCR naming single men identifying as gay, bisexual, or transgender as among those who are most vulnerable in Syria (and in need of urgent relocation to another country), Canada resettled a number of gay Syrian men due to their high degree of risk (see Canadian Response to the Syrian Refugee Crisis). However, the government has also faced criticism that, by prioritizing Syrians for resettlement, applications from other vulnerable LGBTQ+ refugees have been neglected. In particular, LGBTQ+ refugees from Turkey and Iran have observed slower processing times and lower referral volumes.
Chechen Resettlement to Canada
In contrast, Canada moved swiftly to resettle at least 32 out of 70 Chechen LGBTQ+ refugees in the summer of 2017. As a result of an increased violent crackdown on gay men in Chechnya (a republic within in the Russian Federation), Canada’s Ministry of Foreign Affairs spearheaded a unique secret program to quickly resettle the men from Russian safe houses to Canada. In April 2017, the Russian newspaper Novaya Gazeta (Новая газета) reported that Chechen authorities had launched organized violent attacks against gay men, which was verified by local and international organizations. Chechen authorities began rounding up men who were suspected of being gay, and detained, and tortured them.
Countries such as France and Germany each accepted at least one person, Lithuania accepted two, and a number of individuals travelled to the European Union on tourist visas and later applied for refugee status. However, Canada was the only country to adopt a methodical program to resettle gay Chechens fleeing active persecution. This resettlement program is unique and falls outside international law frameworks for refugee protection; usually a refugee will only be resettled once they have fled their home country. In this case, since the men continued to be in hiding while still in Russia, Canada had to act quickly through a network of organizations— including international NGO Human Rights Watch, the Russian LGBT Network, and Canadian LGBTQ+ organizations such as Rainbow Railroad.
Rainbow Railroad is one of a few organizations in Canada dedicated to protecting the rights of LGBTQ+ refugees. Its mandate is to assist people to come to Canada, and other safe countries, who claim refugee status on the basis of their sexual orientation and gender identity. The organization focuses specifically on people who have faced physical violence or who face an imminent threat of violence, imprisonment, or death. Other organizations, such as The 519 in Toronto, support LGBTQ+ refugees in their settlement once in Canada, providing access to programming and counselling. The Iranian Railroad for Queer Refugees (IRQR) focus specifically on Iranian LGBTQ+ persons who are fleeing persecution in their home country, while the Positive Spaces Initiative at Ontario Council of Agencies Serving Immigrants (OCASI) supports the delivery of services for LGBTQ+ newcomers. Based in Vancouver, Rainbow Refugee Committee supports and assists LGBTQ+ and/or HIV+ asylum seekers, refugee claimants and refugees in Canada, and MOSAIC’s I Belong program (also in Vancouver) aims to support the unique needs of LGBTQ+ immigrants. AGIR Montréal supports LGBTQ+ refugees and migrants in Montreal.
Moving Forward: Protecting the Rights of LGBTQ+ Refugees in Canada
While the Chechen resettlement efforts have been successful, at least one gay Chechen man who had come to Canada was attacked in Toronto by men from the Canadian-Chechen diaspora. The Immigration and Refugee Board had also been criticized for its treatment of bisexual refugees and an inability to appreciate the nuances in experience of this particular group. A recent spike in refugee claims from Nigeria (on the basis of sexual orientation and gender identity) has triggered an investigation by Legal Aid Ontario, but, as of early 2018, the suggestions made about the potentially fraudulent nature of these claims have not been substantiated.
LGBTQ+ refugees have also been affected by the Safe Third Country Agreement, which limits refugees from being able to claim refugee status in Canada if they arrive from the United States. However, at least one LGBTQ+ refugee claimant who crossed the border into Manitoba has won his case to stay in Canada permanently.
Creating specific guidelines for the adjudication of refugee claims based on a person’s sexual orientation and gender identity is a step towards recognizing the complexity of these types of claims. Organized efforts to swiftly provide protection to affected members of the LGBTQ+ community, such as in the Chechen case, also highlight the importance of concerted international and local partnerships in providing protection for vulnerable groups of people at risk.