Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 63
It is important to stress that claims for asylum cannot be dismissed
on the basis that the applicant could avoid persecution
by changing or concealing his or her sexual orientation or gender
identity.
Convention Grounds. Asylum claims based on sexual orientation
or gender identity are generally considered under the
“membership of a particular social group” ground. 88 The same
claims have also been found to be able to fall in certain circumstances
under the grounds of “political opinion”, particularly
in countries where, for example, same sex relationships
are viewed as contrary to the core of the country’s policy, and
“religion” where the attitude of religious authorities towards
LGBT people is hostile or discriminatory or where being LGBT
is seen as an affront to religious belief.
b) Refugees’ rights
The Geneva Refugee Convention guarantees a certain number of rights,
which reflect human rights law protections, whose applicability differs
according to the situation of the refugee in the territory, his or her legal
presence or recognition of refugee status. It is important to stress, as
will be seen throughout this Guide, that international human rights law
grants protection of the rights of asylum-seekers and refugees wider
than that of the Geneva Refugee Convention. Furthermore, whenever
international human rights law affords wider protection, it should prevail,
and the provisions of the Geneva Refugee Convention should be
interpreted in light of rights under international human rights law.
The Convention recognises for all refugees present on the State’s territory,
regardless of means of entry or status, the prohibition of non-discrimination
on the basis of race, religion or country of origin in the application
of the Convention (Article 3); the freedom to practice religion
and freedom as regards the religious education of children equal to that
accorded to the State’s nationals (Article 4); the State obligation to
issue an identity paper (Article 27); and the protection of the principle
of non-refoulement (Article 33). To the same group of people apply the
right to equal participation in rationing systems (Article 20), and the
right to primary education (Article 22.1) on an equal basis with nationals
of the State; and property rights (Article 13) and the right to access
secondary and tertiary education (Article 22.2) which are equated to
the level of protection afforded to non-nationals.
88 See, UNHCR Guidance on Sexual Orientation and Gender Identity, op. cit., fn. 86,
paras. 40–50; and UNHCR Guidance on Sexual Orientation and Gender Identity, op. cit.,
fn. 86 para. 32.