Applying for asylum as an LGBTQI+ person – frequently asked questions

Applying for asylum based on SOGIESC

A person who risks persecution in the country where they are a citizen, due to sexual orientation, gender identity and/or gender expression (SOGIESC), can apply for asylum and be granted refugee status in Sweden. It can be for example that the person is bisexual, homosexual, trans or intersex in a country where LGBTQI+ people risk various forms of persecution. People who have a certain sexual orientation, gender identity, gender expression and/or certain sex characteristics, and who therefore risk persecution in the form of societal harassment, authority arrests and imprisonment, normally have the right to protection and refugee status.

Perceived or attributed SOGIESC

Furthermore,  if a person  is perceived by those around them to have a certain sexual orientation, gender identity and/or a certain gender expression,  may risk persecution and be entitled to protection and asylum. This is usually called attributed or perceived SOGIESC, or attributed belonging to the social group LGBTQI+ people. People who are openly advocating for LGBTQI+ rights, or who for example work for NGO’s supporting LGBTIQ+ rights in a country where this may be criminalized, can risk being perceived as LGBTIQ+ persons because of their views or activism, and therefore risk persecution. Family members to LGBTIQ+ people, such as children, partners, siblings and other relatives of LGBTQI+ people can also sometimes be attributed a certain SOGIESC, due to their relationship with an LGBTIQ+ person.

People who risk persecution due to attributed or perceived sexual orientation, gender identity and/or gender expression may have the right to protection and refugee status. The asylum grounds sexual orientation, gender identity and gender expression are covered by the different legal grounds of protection “gender” and “sexual orientation”, which are stated in the Aliens Act, ch. 4. Section 1 .

Different legal asylum grounds common in SOGIESC asylum cases

It is very common for many different legal asylum grounds to be relevant in SOGIESC asylum cases. It can be both one’s actual self-identified SOGIESC and an attributed (perhaps different) SOGIESC. For example, it is common for trans people who cannot access gender-affirming treatment to be perceived by those around them as having a gender identity that they do not have, and that they are therefore at risk of persecution.

It is common for trans people who cannot access gender-affirming treatment and who have different-sex relationships, to be attributed sexual (gay or lesbian) orientation when they are perceived to have same-sex relationships in countries where same-sex relationships are criminalised. Then they may risk persecution due to both being a trans person; their actual gender identity and possibly their gender expression, and due to an attributed gender identity which they do not identify with, and an attributed sexual orientation (being gay or a lesbian). In such cases, multiple legal grounds for asylum are relevant and need to be invoked in the asylum process: Actual and attributed gender identity, gender expression and attributed homosexual orientation.

It is also common that LGBTQI+ people and their family members, such as their children or partners, may have other legal grounds for protection, such as political or religious reasons. It is therefore very important that the asylum seeker receives the right legal assistance to be able to invoke all of their several legal asylum grounds which are independent from each other, so that nothing is missed in the asylum process. The asylum seeker does not usually know – and does not need to know – the legal terminology and the different legal grounds for protection. Therefore, it is very important that the applicant’s public counsel in the asylum case, can identify all relevant legal grounds that need to be invoked and examined during the asylum interview at the Migration Agency. This is especially important if the Migration Agency’s case officer is not aware of and prepared for asking about and investigating several different legal grounds for protection.

The legal writing of the Swedish Aliens Act is clear; an alien who feels a well-founded fear of persecution because of gender (which includes gender identity, gender expression and sex characteristics) or sexual orientation, has the right to refugee status and a residence permit. Despite this, in practice the Swedish migration authorities apply very specific requirements in SOGIESC asylum case law. RFSL’s extensive legal investigations examine and describe these requirements in the migration authorities’ case law. You can find the latest legal investigation (pdf) here, and an updated version in English (pdf) here.

Applying for asylum in Sweden

In order to apply for asylum in Sweden, the applicant must be physically in Sweden, it is not possible to apply for asylum abroad, for example at a Swedish embassy. The asylum application must be submitted as soon as it is possible at the Swedish Migration Agency. The person can also state as soon as they arrive at Sweden’s border that they wish to apply for asylum. They can for example inform a border police officer at an airport or a ferry terminal or where buses and trains arrive in Sweden. The person is then referred to one of the Swedish Migration Agency’s asylum application units. They are located in Stockholm, Gothenburg and Malmö. Read more about what happens in practice when you apply for asylum at the Swedish Migration Agency. The information at the Swedish Migration Agency is available in several different languages.

After the asylum application is registered, the applicant will:

• be photographed
• leave fingerprints
• receive an LMA card, which shows that they are an asylum seeker.

The asylum seeker is then called to an application interview where, with the help of an interpreter, they can tell the Swedish Migration Agency, among other things, who they are, why they have left their country of origin and how their health is.

The applicant does not need to go into details about why they are seeking asylum (asylum story) during this first application interview, in absence of a lawyer, a public counsel, who can help them through the process. 

It is important to inform the Swedish Migration Agency as early as possible in the process if the need for protection is connected to sexual orientation, gender identity and/or gender expression. For example, if the person has fled because they are homosexual or transgender, it is important that the applicant communicates this in order to gain access to their rights and also to be put in touch with RFSL and LGBTQI+ competent lawyers who can help them in the asylum process. It is also important to invoke the SOGIESC asylum claims as early as possible in the process, because it is usually difficult to make SOGIESC asylum reasons credible and reliable if they are disclosed at a later stage of or even after the initial asylum process. 

Which country will assess a person’s asylum application?

Which country is responsible for examining a person’s asylum application is regulated in the Dublin Regulation. This means that the Swedish Migration Agency in certain cases can ask another country to take over the assessment of an asylum application that was initially made in Sweden, for example:

• If the asylum seeker has a visa issued by a Schengen country other than Sweden.
• If the asylum seeker has a certain type of residence permit in or has applied for asylum in another Schengen country on the way to Sweden.

You can read more about the Dublin Regulation further down the page.

If you are unsure of what applies in your or for example your family members’ situation, you can contact RFSL’s asylum lawyers for free legal advice:

Patrick Bazanye
patrick.bazanye@rfsl.se

Aino Gröndahl
aino.grondahl@rfsl.se

What is a public counsel?

Most asylum seekers have the right to have a public counsel, a lawyer, who assists them during the asylum process at the Migration Agency. If the asylum application is denied and the asylum seeker receives a decision that they will be deported, the public legal counsel also helps the asylum seeker appeal to the Migration Court. In the Migration Court there may be an oral hearing, but usually, the appeal process is mainly in writing. If the Migration Court rejects the appeal and agrees with the Migration Agency’s refusal, the public counsel also assists with a possible appeal to the Migration Court of Appeal, which is the third and last instance in migration cases.

A common misconception is that public counsels in asylum cases are “employed” by the Migration Agency or that they are “the Migration Agency’s lawyers”. This is not true. A public counsel is appointed by and compensated for the assignment by the Swedish state, through the Migration Agency. But the counsel is independent in relation to the Swedish Migration Agency, the Migration Courts and other authorities. In order to be assigned and act as a public counsel in asylum cases, the Migration Agency requires that the person has a Swedish law degree or equivalent knowledge and experience in migration law, i.e. rules about for example residence permits, asylum and citizenship. More about the requirements placed on public counsels can be found in the Swedish Migration Agency’s legal position .

Why is it important that public counsels have LGBTQI+ competence?

In asylum cases where someone is seeking asylum on the grounds of sexual orientation, gender identity and/or gender expression, it is very important that the counsel has competence and specific knowledge regarding the asylum grounds sexual orientation, gender identity, gender expression and sex characteristics. The asylum seeker can tell the Swedish Migration Agency if they want a specific person (usually a lawyer) as their public counsel. This request needs to be presented to the Swedish Migration Agency as early as possible in the asylum process.

If the asylum seeker does not submit a request within a certain time for a specific public counsel, the Migration Agency appoints a counsel for the applicant. There are no guarantees that the appointed counsel has sufficient competence regarding the asylum grounds sexual orientation, gender identity, gender expression and sex characteristics. It is very difficult to be granted change of a public counsel that has already been appointed by the Migration Agency, even if it later turns out that the counsel, for example, completely lacks LGBTQI+ competence or experience in working with LGBTQI+ asylum seekers.

RFSL’s lawyers do not act as public counsels in asylum cases, but offer free legal advice before, during and after an asylum process. You can therefore get free legal advice and support from RFSL’s lawyers, who can assist with advice in the individual case, to the already assigned lawyer and/or the asylum seeker, and/or their contact person. Asylum seekers can also contact RFSL’s lawyers to get in touch with LGBTQI+ specialised public counsels who can be assigned in their asylum case, if no counsel has been assigned yet by the Migration Agency. You can contact us by email or phone:

Patrick Bazanye
patrick.bazanye@rfsl.se

Aino Gröndahl
aino.grondahl@rfsl.se

Changing an already appointed counsel

It is very difficult to change a public counsel who has been appointed and who represents you at the Migration Agency and/or the Migration Court. In order to be granted a change of the public counsel, there must be special reasons and strong grounds. It is also up to the asylum seeker to show that there are such reasons, if they want to change an appointed counsel. There are no formal requirements of what an application to change a public counsel should look like. However, the following things should be included in the application:

• Date
• The name of the asylum seeker
• Case number / LMA number
• What the matter concerns (change of public counsel).
  

It is important that the applicant states in detail why they wish to change their assigned public counsel. The applicant should also send any written evidence and documents showing the reasons they have given for wanting to change the public counsel. If the applicant has contact with for example another lawyer who has the opportunity to take over the case if a change is approved, the other counsel’s name and contact details may be included in the application for a change of public counsels. The applicant can also write that they wish to be appointed this new counsel instead, if a change of public counsel is granted.

Interpreters

At the beginning of the process, the Swedish Migration Agency must ask the asylum seeker in which language or languages they may carry out interviews. The applicant has the right to request an interpreter of a certain gender. However, the applicant does not have the right to demand that the interpreter has or does not have for example a certain ethnicity. The applicant always has the right to ask to interrupt an ongoing interview, for example:

• If they feel that the communication with or through the interpreter is not working.
• If the applicant and the interpreter do not understand each other.
• If the interpreter expresses themselves in an LGBTQI-phobic manner or uses terminology that the asylum seeker perceives as derogatory.
  

If any of this or something similar happens, the applicant should tell the Swedish Migration Agency’s case officer or the public counsel as soon as possible. The applicant should absolutely not wait until the interview is finished. It can usually be very difficult to correct possible errors or misinterpretations or to correct misunderstandings afterwards, when going through a protocol from an interview. This risks affecting the asylum seeker and the entire outcome of their asylum case and decision, even when appealing to the Migration Court.

Written and oral statements from RFSL

It can be valuable in an asylum case to submit, together with the public counsel’s written application, a certificate from RFSL, supporting the asylum claims. There is no formal template and no formal requirements that must be followed when writing such a certificate. The content can differ depending on who writes it and in what capacity the person certifies something, for example if it is a Newcomers coordinator or a counselor. The certificate should contain:

• name of the asylum seeker
• date of birth
• case number (LMA)
• date of the certificate
• who at RFSL and in what capacity they have met or know the applicant
• contact details for the person or the local RFSL chapter.

The certificate can describe whether the asylum seeker is a member of RFSL, and copy of the membership card can be attached. It can also be described whether and how often they participate in various activities, such as Newcomers, Pride and/or counselling. If the person who writes the certificate from RFSL has had a conversation with the asylum seeker about their personal circumstances, where the asylum seeker for example described details about why they fled and how they live in Sweden, it is particularly important to consult with the public counsel before writing details about this in a certificate. This needs to be done with the asylum seeker’s consent.

If the application is denied

If the Migration Agency denies the asylum application and decides about deportation, the decision can be appealed to the Migration Court. The appeal process is mainly in writing, but the Migration Court may decide to hold an oral hearing, for example if the public counsel requests it in their written appeal. This is especially important when the asylum seeker’s credibility is questioned by the Migration Agency, and their SOGIESC was assessed as non-credible. The counsel may request that one or more witnesses or experts be allowed to testify in the oral hearing. If the Migration Court allows witnesses, they can then orally account for in court what is relevant to support the asylum seeker’s story and asylum claim. Employees, volunteers, counselors, Newcomers coordinators may for example describe how they know the asylum seeker, what they know about their participation in RFSL’s activities, what may have come up in any counseling sessions, etc.

It is important to discuss and plan with the asylum seeker and their public counsel before the Migration Court is requested to allow witnesses or experts during an oral court hearing. It is also important to clarify what RFSL’s representative should and should not testify about at the oral hearing. Please feel free to contact RFSL’s lawyers for questions about oral court hearings and testifying in court:

Patrick Bazanye
patrick.bazanye@rfsl.se

Aino Gröndahl
aino.grondahl@rfsl.se

Refusal and leave to appeal

The Swedish Migration Agency is the first instance in asylum cases. They are therefore the first to decide whether an asylum seeker should be granted asylum and a residence permit, or not. If the Migration Agency rejects the asylum application, that decision can be appealed to the second instance, the Migration Court. If the Migration Court rejects the appeal, that judgment can be appealed to the Migration Court of Appeal. That is the highest instance in migration matters, in questions about for example asylum, citizenship and deportation.

In order for the Migration Court of Appeal to try an appeal, a leave to appeal must be granted, which is very difficult to obtain. Leave to appeal can be granted when guidance is needed regarding how the legislation should be interpreted, so-called “precedent reasons”. It can also be granted if there are “extraordinary reasons” to examine the appeal. It may be that the outcome in the Migration Court is due to a gross oversight or a mistake. One such could be that the court has applied the wrong section of the law, or that a decision was made by someone who did not have the authority to make the decision. More information about leave to appeal can be found on the Migration Court of Appeal’s website .

If the Migration Court of Appeal decides not to grant leave to appeal, the Migration Court’s judgment gains legal force, it becomes valid and enforceable. Normally, then the time frame for enforcing the decision about deportation begins, which is the time from the court’s decision until the (former) asylum seeker has to leave Sweden. The applicant will be informed of the decision. This is called notification. There will normally be a meeting with the Migration Agency about returning according to the decision about deportation, where the former asylum seeker is asked if they are willingly intending to return to their country of origin. You can read more about service and what happens in the event of a refusal on the Swedish Migration Agency’s website .

Lawyers usually consider their assignment and work as public counsel to be over when a case has reached the Migration Court of Appeal, and they have not granted leave to appeal. At this stage, when the asylum process is formally over, the asylum seeker does not have the right to a public counsel who is entitled to compensation from the state. Therefore, most lawyers would usually charge for legal advice or other work related to the former asylum seeker’s case and situation. RFSL offers free legal advice and information also to people whose asylum case has been denied by all instances.

When can one apply for asylum again (prescription)? What are new circumstances and impediment to enforcement of deportation?

The statute of limitations in asylum cases is four years counted from the date on which the refusal decision became valid, or gained legal force, which is normally when the Migration Court of Appeal decided to deny leave to appeal. Once the prescription period of four years has expired, it is possible to apply for asylum again.

Before the statute of limitations has expired, it can be possible to submit an application for impediment to enforcement of the deportation, due to “new circumstances” in the case, that can be assumed to constitute an impediment to enforcement. It is not enough that there are minor adjustments or additions to what has been examined already by the Swedish Migration Agency and/or by the Migration Court, in the asylum case. It must be new circumstances that have never been tried in the case. You can find more information about impediment to enforcement and obstacles to implementing the deportation, on the Swedish Migration Agency’s website.

What can constitute impediment to enforcement?

Examples of new circumstances that could constitute impediments to enforcement are if a person dared not or was unable to tell the migration authorities before about their sexual orientation, their gender identity, their gender expression and/or their sex characteristics. These grounds for asylum have thus never been tried in the asylum case and can then be examined and assessed in a new trial. Not having disclosed LGBTQI+ asylum grounds from the beginning should not alone affect the credibility of the information, when the Migration Agency or the Migration Court assess them as new circumstances and decide whether to grant a new trial or not.

Changed conditions in the asylum seeker’s country of origin can also constitute a new circumstance and thus amount to impediments to enforcement of the deportation. This could be for if the situation for LGBTQI+ people has worsened, for example through new criminalizing legislation and/or harsher punishments for LGBTQI+ people. It may also be that a new, personal threat has arisen against the person, during or after their asylum process in Sweden. It needs to be possible to somehow prove the individual new threat against the person, for example, through written evidence. It is important to document everything that can constitute written evidence in support of the new circumstances that one wants to invoke in an application for impediment to enforcement of deportation. It is also important to consult a lawyer before such an application is sent to the Swedish Migration Agency. If an applicant and/or, for example, their contact person is unsure of what may constitute new circumstances, they can contact RFSL’s asylum law lawyers for an assessment and legal advice.

There is no specific time period when an application for enforcement obstacles must be submitted. However, to have the best possible chance of success with the application, it should be submitted as soon as possible. A lawyer should assist with the writing of the application, and it is generally good if as much written evidence as possible can be attached to support the application for a new trial based on new circumstances. If the applicant can show that there are new circumstances that can be assumed (which is a low standard of proof) to constitute a lasting impediment to enforcement of deportation and the they could not invoke the circumstances before, or they have a valid excuse for not having done so, a new trial may be granted. The rules about enforcement obstacles and a new trial are stated in the Swedish Aliens Act, Section 12, §§ 18-19.

An application for an impediment to enforcement can lead to a refusal, a residence permit or a decision to grant a new trial, in which case the person is entitled to public counsel. If the person’s application for review is rejected, that decision can be appealed to the Migration Court, which can then reject the appeal, or grant the review, or refer the case back to the Migration Agency for a new assessment.

Which country will assess my asylum application?

The Dublin Regulation determines which country is responsible for examining a person’s asylum application. The Dublin Regulation applies in the EU countries, as well as Iceland, Norway, Lichtenstein and Switzerland and is directly binding on the member states.

When a person applies for asylum in Sweden, the Migration Agency first assesses whether they have family seeking asylum in another EU country. If not, it is assessed whether the applicant has been granted a visa or a residence permit by another EU country, which is then responsible for the asylum application. If there is no visa or residence permit issued by another EU country, the Migration Agency investigates which EU country the person first traveled to when they crossed the EU’s external border. If no country can be held responsible under these points, the country where the applicant first submitted their asylum application will be responsible for examining the application.

A decision to transfer an asylum applicant to another EU country according to the Dublin Regulation is time-barred, and ceases to apply six months after the other country has accepted to receive the asylum seeker and examine the application, if Sweden has not succeeded in enforcing the transfer during the six months, if the asylum seeker has been co-operative and not living in hiding. 

If Sweden has not succeeded in carrying out the transfer because the asylum seeker is living in hiding, the limitation period is instead 18 months. After that, responsibility for examining the asylum application passes to Sweden. More information about the Dublin Regulation is available on the Migration Agency’s website. The rules of the Dublin Regulation are often perceived as difficult to understand. Anyone who is unsure of what applies in a specific case can turn to RFSL’s asylum lawyers for information and advice.

Can RFSL arrange visas for LGBTQI asylum seekers?

No. RFSL as an organisation is not able to help people who are outside Sweden, by assisting with invitations, visa applications or by financing journeys to Sweden with the intention of applying for asylum. We can, however, give legal advice and information to people who are outside Sweden and have questions about applying for asylum or a residence permit in Sweden. If a person is able to get to Sweden – with or without a visa – RFSL can assist with legal help and other forms of support, both before and immediately after arrival. Read more about what RFSL can offer for asylum seekers here.