Sexual orientation and gender identity asylum claims and refugee protection under South African law

Abstract

The South African Constitution and legislation provide for granting of asylum and protection for refugees who have fled into South Africa because of persecution based on their sexual orientation or gender identity. International human rights law recognises the right to seek asylum and to be protected from persecution. There is growing consensus within the field of international human rights and refugee law that persecution based on one’s sexual orientation or gender identity is a basis upon which refugee status and protection should be granted. South Africa’s legal regime is, therefore, consistent with emerging international human rights standards and reflects the Republic’s consciousness to its international obligations towards the protection of asylum seekers and refugees. Out of keeping with the progressive legislative and human rights guarantees under South African law, asylum seekers and refugees whose applications are based on sexual orientation or gender identity often face rejection of their asylum applications and violations of other human rights while in South Africa. These and a number of other identified challenges facing these asylum seekers and refugees, such as non-disclosure of true reasons for seeking asylum due to trauma, negative social attitudes, and lack of protection by law enforcement agencies, require concerted efforts by the various stakeholders. Multi- and inter-disciplinary dimensions to the institutional responses and overarching synergies that bring together the much needed efficacy in service and protection delivery are identified in this research as the ultimate goal.