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A United Nations committee has chastised Finland for rejecting an asylum application from a child of a lesbian couple who was subjected to harassment, bullying, and even physical violence in his native Russia.
The child in question, known as “A.B.,” now 11 years old, fled from Russia to Finland in 2015 after the family faced threats and he began to be bullied at school. At the time, Russia had recently adopted legislation preventing the promotion of “non-traditional sexual relationships” — meaning any statement that casts LGBTQ status in a positive or neutral light — as part of its “anti-propaganda” law.
Although his mothers attempted to conceal the nature of their relationship, they were unintentionally outed when A.B. talked about his family in kindergarten. School staff began to treat A.B. rudely and aggressively, often causing him to cry and making him anxious to attend school.
When he was moved to another class, the classroom staff criticized his mothers, yelled at him, hit him, and gave him food to eat to which he was allergic. The staff also stood by while other children began bullying, hitting, and taunting A.B., and other parents attempted to prevent their children from interacting with or befriending him. As a result of the mistreatment, A.B. experienced heightened anxiety and began expressing thoughts of suicidal ideation.
The family later moved to Finland, and filed requests for asylum and for a humanitarian residence permit based on the persecution their family had faced in Russia. While their application was being processed, the family lived in Finland for two-and-a-half years, A.B. began learning Finnish and making friends, and his mothers were able to interact openly with other same-sex parent families. His teacher noted that he became a much happier child as a result of not being mistreated or having to conceal his family status.
But Finland ultimately rejected the family’s request for asylum, claiming that the threats, bullying, and discrimination they had faced did not rise to the level of persecution needed to qualify for asylum. As a result, the family was forced to return to Russia.
In response to a complaint filed against Finland, the U.N.’s Committee on the Rights of the Child found that Finland “failed to adequately take the best interests of the child as a primary consideration when assessing the author’s asylum request based on his mothers’ sexual orientation, and to protect him against a real risk of irreparable harm in case of return to the Russian Federation.”
The 18-member body of human rights experts also found Finland in violation of articles 3, 19, and 22 of the Convention on the Rights of the Child, and opined that Finland is “under an obligation to provide an effective reparation” to A.B. and his family, including compensating them for the costs incurred in the course of resettling in Russia.
The decision by the committee against Finland is the first asylum-related case involving a child who faces risks to his personal and emotional well-being as a result of discrimination stemming from his mothers’ sexual orientation. It also marks the first time that the committee has made a decision on sexual orientation, and the first case dealing with the rights that children of same-sex couples are entitled to in countries that have ratified the UN Convention on the Rights of the Child, according to LGBTQ advocacy group ILGA World.
The committee’s decision was informed by a third-party intervention submitted by ILGA World, its European chapter, the International Commission of Jurists, Child Rights International Network, and Network of European LGBTIQ* Families Associations. In their brief to the court, the organizations argued that any decision regarding the child’s well-being should have taken what was in his best interests into consideration, and that those interests should be given high priority when making a final decision about his application for asylum.
The coalition of LGBTQ and human rights organizations also noted that sexual orientation constitutes a fundamental aspect of an individual’s identity and that LGBTQ people are entitled to freedom of expression and association as much as anyone else. The mere fact that an LGBTQ person may conceal their identity, or has done so in the past, is not a valid reason for denying refugee status.
Moreover, the advocates argued, asylum seekers be reticent to openly flaunt their LGBTQ identity, on the grounds that, if their application is rejected, being out upon returning to their country of origin may put them at further risk of persecution by both state and non-state actors. The same principle should also apply to children of same-sex couples who are forced to hide their family background in order to avoid disparate treatment, bullying, psychological harm, or even the threat of being taken away from their parents.
“This is an important decision, setting out necessary standards for the protection of children in LGBTI families who are at heightened risk of discrimination, especially in countries like Russia, where LGBTI people face stigmatization and hostilities in their everyday lives,” Arpi Avetisyna, the head of litigation at ILGA-Europe, said in a statement. “States must always ensure that the best interests of the child are effectively and systematically taken into account in the context of asylum proceedings, and that they are not discriminated based on their parents’ sexual orientation.”
Kseniya Kirichenko, the program coordinator at ILGA World, expressed hope that the body’s decision might lead to a reversal of fortune for A.B. and his family.
“In the past, we have seen that international decisions on lesbian, gay and bisexual asylum seekers actually led to giving the applicants residency in the respondent States,” Kirichenko said in a statement. “We hope that Finland will also ensure that this family will be able to come back and to finally have a happy and safe life.”
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