Refugee India Homosexuality
1.1 This report will discuss the current situation in India and will propose that a person from this country would not be eligible for refugee status as they will not fully satisfy the grounds of well founded fear set out in the Refugee Convention 1951, and even of they do they will receive adequate protection from the state of India hence being no need to turn to the international community for protection. There are a number of reasons people in India may feel they are being persecuted, but this report will focus on persecution based on being part of a particular social group, in particular homosexuality.
Background Evidence
2.1 The Constitution of India is the supreme law of India. The preamble of the Constitution defines India as a Sovereign, Socialist, Secular and Democratic Republic, assuring its citizens of justice, equality, and liberty. India is a federal state thus the preamble applies to all the states in India.
2.2 Homosexuality is still a crime in India under an old British era statute dating from 1860. The Indian Penal Code which criminalises 'carnal intercourse against the order of nature.' Because of the vague nature of the legislation it has resulted in it being used against a wide range of sexual behaviours, including homosexuality. The punishment for engaging in homosexual relation can range from 10 years to lifelong imprisonment.
2.2 Though Sexual acts 'against the order of nature' remain illegal in India and not accepted in the Indian society, the government no longer seeks to prosecute adults engaging in private consensual homosexual acts. In recent years, the campaign to decriminalise homosexuality has strengthened. Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India.
2.3 The liberalisation of the society in India had aided in gaining recognition of homosexuality especially in the cities such as Mumbai, Delhi and Banglore.However the smaller cities and towns are not so lucky. Homosexuals find it difficult to express their true feelings publicly and accept themselves the way they are. Some are even forced to marry individuals of the opposite sex out of family pressure. They suffer from severe social stigma and are tormented. Though prohibition of sodomy in India is not enforced, it provides a basis for blackmail and harassment of homosexuals.
Protection
3.1 In order to qualify for refugee status a person would have to fall under the definition of a refugee found under the Refugee Convention 1951 Article 1A (2) as "a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country".
3.2 Homosexuals in India may feel they are being persecuted but to eligible for refugee status the reason must fall within the grounds stipulated above. Homosexuals may try and argue they are part of a social group. In the case of Acosta Immigration Appeals defined social groups as 'groups defined by some innate or unchangeable characteristic' and 'cohesive, homogenous groups in voluntary association for reasons fundamental to their rights'.
3.3 In Vraciu v SSHD, the Tribunal held that homosexuals are a 'particular social group' within the meaning of the Refugee Convention. In the cases of Apostolov and Vitali the Tribunal explicitly confirmed that sexual orientation is an 'immutable characteristic' and an 'innate and unchangeable characteristic', and that therefore 'homosexuals' as such are a 'particular social group'. Therefore Homosexuals and anybody falling within this definition would be eligible for refugee status having satisfied the Convention grounds.
Persecution
4.1 Persecution is defined as a violation of basic human rights and a failure of state protection. Fear is nothing more or less than a belief of what could happen. It is a feeling of threat and involves serious harm being caused. The mere prohibition of homosexuality is generally not sufficient to amount to persecution or to require international protection under human rights law, although it has been appreciated that 'the very existence of a legal prohibition can continuously and directly affect a person's private life' as it would India is.
4.2 It was decided in R v SSHD ex p Sivakumaran that the standard of proof to show fear is ‘well founded' is that there is ‘serious possibility' or ‘reasonable degree of likelihood' of it occurring. Past Persecution often constitutes the best evidence to examine if a person is likely to be persecuted in the future, However in India though homosexuality is illegal there have not been any convictions in the past twenty years, But homosexuals in smaller villages and towns do face blackmail and harassment which if not complied there would be a likelihood of harm occurring, and if they are convicted there will be imprisoned for 10 years or life.
4.3 An Indian attempting to claim refuge would not need to show they are being targeted individually, simply being part of a group, that falls under the Convention grounds, that are routinely targeted in India would be sufficient such as homosexuality. Therefore Indians would just need to show there is a reasonable chance of it occurring.
4.4 If a homosexual tried to claim refugee status claiming they are being harassed due to their sexuality and fear persecution for this reason their claim may be unfounded, as even though homosexuality in India is a crime there is no likelihood of persecution unless they flaunt their sexuality, this is supported as their have been no convictions for twenty years. Furthermore internal placement within the country would eliminate the persecution being face by homosexuals as not all the states in India hold a homophobic view and are a lot more accepting of homosexuals.
Conclusion
5.1 From the current information available on India I conclude that the country is safe and though citizens of India may feel they are being persecuted under the Convention grounds there is adequate protection within the country to deal with it, the countries preamble promotes justice, equality and liberty and does not condone discrimination and harassment in any form or for any reason. Looking at the whole situation in India there is no breakdown in relationship between citizen and state, and citizens still have the benefit of state protection.
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