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Seeking Asylum in South Africa while LGBTQI+

    Anold Mulaisho

    Zambian gay refugee Anold Mulaisho, who fled to South Africa to escape anti-LGBTIQ persecution, says he was humiliated and physically and verbally abused by homophobic police officers in Pretoria.

    In 2018, Anold went to South Africa in search of protection, having fled Zambia after a lifetime of homophobic abuse. When submitting his asylum application, Anold bravely disclosed multiple experiences of oppression, including family disapproval, schoolyard bullying, verbal harassment, physical violence and sexual assault. This direct persecution was compounded by an ever-present threat of arrest under Zambia’santi-sodomy laws.

    Anold’s asylum application was rejected by South Africa’s Home Affairs department because officials absurdly refused to accept that the openly gay man is indeed gay. The following words are taken verbatim from Anold’s refugee status denial letter.

    “A person who is gay would normally not be in the company of girls. That on its own, [sic] contradicts [the applicant’s] claim that he is gay. … In addition to that, he claimed that he was in pain after he had been raped. Consequently, he would not have chosen to be gay if indeed he was in pain after that rape incident. … There is no credibility in this application. The application is fabricated. … Zambia is a Christian nation and as such the citizens of the country live by Christian values. The applicant would not have become gay if he was indeed a Christian. He would have adhered to those values.”

    Anold’s experience of the South African asylum system is, regrettably, far from unique. Over the last decade, researchers, journalists, and activists have cataloged the incessant violence and discrimination to which LGBTI+ asylum seekers are subjected. Experiences of bribery, apathy, disdain, ineptitude, mockery, and intimidation are commonplace, as are stories of being disbelieved by Refugee Status Determination Officers (RSDOs) who hold prejudicial beliefs.

    Anold’s case offers a disturbing example: the RSDO adjudicating his claim relied heavily on harmful stereotypes and personal beliefs, thereby denying Anold a fair process.

    The RSDO rejecting Anold’s application was not only ill-informed about sexual and gender diversity but also lacked the legal knowledge and research skills to fairly adjudicate a claim of this nature. Although it is impossible to determine RSDOs’ exact motivations from textual analysis, it doesn’t seem unreasonable to assume that some hold prejudicial views that undermine their ability to execute their duties.

    In the meantime, Anold has been living in limbo in the desperate hope that he will eventually be allowed to stay in the country.

    It must be noted that the trends identified here are driven by myriad factors, not all of which can be attributed to homo/transphobia. RSDOs perform their jobs under taxing conditions, facing both general challenges (inadequate staffing levels, pressure from management to rush determinations, etc) and SOGI-specific issues (inadequate sensitization training, language and/or cultural barriers, etc). It would also be remiss of us to ignore recent efforts by the state to address corrupt practices and bureaucratic delays within DHA. However, these observations do not excuse South Africa from meeting its domestic and international obligations. For those on the receiving end of prejudicial treatment or administrative errors, this is more than a question of “shortcomings” — it can mean the difference between life or death.

    REPORT: A Review of Refugee Status Denials Involving Sexual Orientation and Gender Identity

    A collaborative report based on research conducted by the Legal Resources Centre (LRC), the Women’s Legal Centre (WLC), the African LGBTQI+ Migration research Network (ALMN), and People Against Suffering, Oppression and Poverty (PASSOP).

    The full report can be downloaded here.

    South African law provides for asylum on the basis of persecution related to sexual orientation and gender identity (SOGI). This report reviews 67 denial letters written by Refugee Status Determination Officers (RSDOs) on behalf of 65 applicants who identify as lesbian, gay, bisexual, transgender and/or intersex (LGBTI+). The letters were issued by 32 RSDOs at 5 Refugee Reception Offices (RROs) – Cape Town, Musina, Port Elizabeth, Pretoria and Tshwane – between 2010 and 2020.

    This report is intended to serve as a resource for researchers, lawyers, service providers and civil society organizations, as well as for LGBTI+ persons seeking protection in South Africa. In sharing the findings, the hope is to spotlight some of the legal, administrative and bureaucratic barriers preventing LGBTI+ asylum applicants from being formally recognized.