Addendum to the tenth piece in our Polity of Literature series:
In Ralph Severijns’ analysis of the state’s reading of refugee stories—that is, in the crucial “free narrative” that asylum seekers tell when they apply for asylum—some problematic stories come up (see PoL #10, “Refugees Tell Their Stories to the State“): Asylum seekers who’ve undergone religious conversions or those who are queer often are not believed. Something more than personal bias gets in the way. In the case of queer asylum seekers, the system of evaluation—the state rules that shape “the hole in the donut” that Severijns says is the space of their decision making—is deaf to unconventional stories. While Western bureaucrats easily recognize a narrow range of conventional “coming out” stories, the unusual lives led by queer asylum seekers don’t always fit that model and are misunderstood, so their need for asylum goes unmet. In the words of an activist campaign, their stories are #notgayenough.
As an addendum to PoL #10, this week we present excerpts from a recent Utrecht University undergraduate thesis, “Not Queer Enough?” by Lotte Wolff. Wolff both shows us the limitations of the IND’s approach to reading, and models an alternative by including an account of her own limits and methods as a reader of the IND. Selections from “Not Queer Enough?” were chosen and edited by Matthew Stadler, with illustrations by Ken Krimstein.
The Netherlands is often considered a progressive and accepting society for queer people, and in 1981 became the first country in the world to recognise homosexuality as grounds for asylum (Jansen & Spijkerboer, 2012). In 2011, gender identity was formally recognized as a basis for asylum claims by the European Union (Publicatie Europese Unie, 2011). Upon arrival in The Netherlands, queer asylum seekers must report to the immigration service at Schiphol Airport or the central asylum reception in Ter Apel, a large facility in the East of the country. Once their application is filed, the asylum seeker is given six days to rest before the initial hearing with the Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Services—IND). Before the initial hearing, the applicant is also given a medical exam, during which they must indicate any physical or psychological ailments that the IND should take into consideration during the interviews. The first hearing is more general, concerning the applicant’s basic personal details and migration route (Wat houdt de asielprocedure in, n.d.).
The applicant then usually stays in a temporary refugee camp, asielzoekerscentrum (AZC), to await the start of the eight-day asylum procedure. During all hearings and interviews, there’s an independent translator present. On day two, the applicant meets with their lawyer, reviews the transcript of the first interview for errors, and prepares for the second interview. On day three, the second interview focuses on the exact reasons for asylum, and will be used to corroborate the details of the first interview. After the applicant reviews the transcript for this interview with their lawyer, the IND files a decision on day five. If rejected, the applicant can apply for a “review,” which is granted or rejected within two days. If this is rejected, the applicant can appeal and will eventually end up at the Dutch civil court (Asielzoekers, n.d.).
Individuals claiming refugee status on the basis of their sexuality fall under the category of persecution for “membership of a particular social group” (Spijkerboer, 2011). The category was clarified by the United Nations High Commissioner for Refugees (UNHCR) in 2002, when they defined a “social group” as sharing common characteristics that are “innate, unchangeable, or which [are] otherwise fundamental to identity, conscience or the exercise of one’s human rights” (UNHCR, 2002b, p. 3). This definition is problematic and contentious in LGBTQ asylum as it uses the essentialist argument that sexuality is “natural, inevitable and biologically determined” (DeLamater & Hyde, 1998, p. 10), which queer theorists have endeavored to deconstruct. This definition allows for asylum on the basis of sexuality “as long as their sexual orientation is immutable and fundamental to their identity” (Akin, 2017). Furthermore, it requires an LGBTQ applicant to identify with the “community” (Southam, 2011).
How does one prove that one is genuinely part of the LGBTQ community? In The Netherlands, the determination of credibility for queer asylum seekers is dictated largely by the IND’s “Werkinstructie” (a set of frequently updated protocols; Werkinstructie 2015/9 was in force at the time of this research, and Werkinstructie 2019/17 at the time of publication; for some of the differences see the insert, Material Evidence, below), which offer guidelines to establish uniform assessment of credibility. The Werkinstructie begins with the assumption that the provability of sexual orientation falls somewhere on a continuum between the mere claim to be LGBTQ, and concrete physical proof. Because of this, believability is based on substantiating the applicant’s claim with consistent and realistic narrative evidence, through the prompt of questions by the IND interviewer (IND, 2015). According to the UNHCR guidelines, self-identification should be taken as the starting point, and the individual should be given the benefit of the doubt if personal testimony doesn’t seem completely credible (UNHCR, 2008). This begs the question, how does someone tell a convincing enough asylum narrative to be seen as credible by the IND interviewers?
It’s been found that the presentation of a fixed, biologically-determined sexual orientation is advantageous in coming across as credible in the interview. In The Netherlands, a bisexual applicant was found “not credible” because he claimed that his LGBTQ status wasn’t in his genes (Spijkerboer, 2011). In her 2017 essay, “Queer asylum seekers: translating sexuality in Norway,” scholar Deniz Akin writes about the shortcomings of the “born this way” narrative, which is pushed by LGBTQ activists in an attempt to gain recognition of non-heterosexuality as something unchangeable and therefore deserving of recognition and rights. Akin writes that the applicant is expected to present an internal identity with static and linear desire. Heterosexual marriage or past relationships with someone of the opposite sex have been found to work against the credibility of LGBTQ asylum seekers (Spijkerboer, 2011). Australian researchers, Laurie Berg and Jenni Milbank, found that a shift in identity labels during the interview process was interpreted as hesitation about one’s identity (Berg & Millbank, 2009).
The credibility of queer identity is stronger when the assumed “self-actualized” identity is made public and put into practice. First, there is an assumption that the applicant is “out” and enacting their identity through knowledge of the gay scene, including bars and LGBTQ support organisations in the country of origin. Scholars have also found that “going public” with one’s sexuality is a strategic way to become more readable as an individual who adheres to the “Western style of loud and proud sexual identity” (Akin, 2017, p. 463). Sociologist Rachel Amelia Lewis found that lesbian applicants combined being activists with being “out sexual citizens” in order to avoid deportation (Lewis, 2013). Lewis links this “imperative…to be a sexual citizen” (ibid, p. 966) to neoliberal ideologies of sexual citizenship. Queer asylum claims, Lewis writes, must conform as closely as possible to the “narrative of the male political activist fleeing an oppressive regime” (ibid, p. 967). David A.B. Murray, an anthropologist at Toronto’s York University, found that engagement with the local queer community, such as working with LGBTQ organizations upon arriving in the country of application, is useful as proof of belonging to the LGBTQ community (Murray, 2014).
Given that IND decision-makers are situated within a Western perspective of “genuine” LGBTQ identity, the question arises: Does the IND impose Western concepts of queer identity on asylum seekers? And, following from activists’ claims of mistaken rejections of queer asylum seekers, can that explain why individuals are wrongly rejected?
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Scholars of queer theory have conceptualised the formation of queer identity in a staged, linear fashion, with the ultimate goal of self-actualisation and inclusion of sexual orientation into an integrated sense of self (Cass, 1979; Troiden, 1979, Savin-Williams, 1989). Australian psychologist Vivienne Cass proposed what’s become known as the Cass Identity Model in 1979, summarizing “homosexual identity formation” through a series stages. They are:
1) Identity confusion
2) Identity comparison
3) Identity tolerance
4) Identity acceptance
5) Identity pride
6) Identity synthesis
Cass theorizes that after internally questioning one’s own, and society’s, assumption of heterosexuality, there is some form of identity confusion (Berg & Millbank, 2009). The individual can be expected to experience negative feelings towards the self, due to this opposition. But, as the homosexual identity grows stronger, increased homosexual encounters occur (Cass, 1979). During the third stage, “identity tolerance,” the individual can still be expected to experience a sense of isolation, trying to “pass” as straight, to conceal homosexual identity (Berg & Millbank, 2009). Only at the fourth stage, “identity acceptance,” does the individual begin disclosing their sexual orientation to others, seeking direct contact with the LGBTQ community.
The Western conceptualisation of sexuality can be summarised as consisting of multiple elements, as follows: it is identifiable in stable categories using specific labels; it is fixed as an identity, formed linearly, and visibly/publicly demonstrated through a coming-out and self-actualization into “the self.” The question is, subsequently—if this pattern is culturally specific to the modern, Western world, how can asylum seekers from other backgrounds navigate it? And, how are these ideas imposed on them during their attempt to be credible and readable as LGBTQ asylum seekers? The issue has come up in Australian, Canadian, and British decision-making bodies and has been addressed by scholars who criticize the assumption that queer identity really has any formal, trans-cultural sameness (Berg & Millbank, 2009; Lee and Brotman, 2011).
The document that guides Dutch IND interviewers, Werkinstructie 2015/9, is based specifically on a 1996 article by Canadian sociologist, Nicole LaViolette, describing how “membership in a particular social group can be established.” LaViolette says that, where there is no tangible proof of a queer identity, determining legitimacy comes down to whether the individual tells a good enough, believable story. She proposed a model to “elicit a claimant to speak about his or her experience of homosexuality” (LaViolette, 1996, p. 15). This model is based on three underlying assumptions about the “universal” experience of LGBTQ individuals:
1) Societal rejection of homosexuality
2) Personal struggle with sexual identity faced by individuals in social rejection
3) This will move them away from or “place them in opposition to their family, friends, communities, and society in general” (ibid., p. 15)
The Dutch IND has explicitly excluded some common methods of inquiry. First, the IND won’t conduct any medical tests to establish sexual orientation, and “medical evidence” will not be considered in the decision. This is in accordance with the Yogyakarta Principles of international law, which dictate that sexual orientation and gender identity cannot be subject to medical or psychological tests (IND, 2015). The IND will not accept documentation (such as photos and videos) as evidence, and doesn’t take testimony about explicit sexual acts into account in their decision. The exclusion of physical evidence (which is now changing—see sidebar) has been criticized for shifting reliance entirely to the interpretation, by IND workers, of the credibility of personal asylum narratives, on the basis of prescribed questions. The specific questions asked to applicants in The Netherlands aren’t made public by the IND but there is an indication, given in the Werkinstructie, about the themes they explore, which align very closely with those suggested by LaViolette (LaViolette, 1996):
1) Private life (family, friends, past relationships, religion)
2) Current relationships, LGBTQ contacts/knowledge in country of origin
3) Contact with LGBTQ individuals in The Netherlands and knowledge of LGBT situation
4) Discrimination, repression and persecution faced in country of origin: including fear of
5) Future: what would happen upon return
Importantly, theme one refers to the applicant’s realisation of their sexuality, the process of self-acceptance, and the environmental (family/society) reaction to that orientation—their coming out. This reflects the assumption of a Western queer identity formation that involves passing through various stages of self-discovery in a linear sequence. Furthermore, the emphasis on contact and knowledge of the LGBTQ situation at home and in The Netherlands reiterates the Western conceptualisation of a visible identity that is publicly acted out. Lastly, there is a major assumption of a homophobic reaction from family and the environment after this identity is publicly demonstrated in the form of “coming out.” These questions, and the answers, don’t exist in isolation. When considered together, they paint the picture of a “legitimate” Dutch LGBTQ person. But what kind of LGBTQ person is that?
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When queer asylum seekers are rejected by the IND, they can appeal the ruling to a Dutch civil court. In court, even if the rulings are upheld, details of the decision-making process are revealed as judges try to determine if the IND workers followed the rules. A review of three such cases sheds more light on patterns of bias or presumptions in the IND process.
Case 1: Rian
Rian, a 26-year old homosexual from Iraq, has given permission for his decision to be shared with me, and therefore will be referred to by name. Rian had his asylum hearings in July of 2016; he applied for asylum because he was homosexual and experienced problems with his family, and society in general, in Iraq. Rian had a boyfriend in Iraq, who helped him flee the country after his brother had shot at him upon discovering that Rian was gay. Rian claims he can’t return because his family will murder him. His application was originally rejected because his homosexual identity and persecution were not deemed believable. Specifically, his process of “realisation and acceptance” was described too briefly and superficially. The IND was also not convinced by his narratives of relationships with men in Iraq or the relationship with his current fiancé. Rian appealed the decision on the 14 June, 2017, and went to court on 25 September. The court ruled his appeal valid, and ordered the IND to produce a new decision within 10 weeks from 1 November, 2017 (Al Maamar v. de staatssecr. van Just. en Veiligheid, 2017). In the end, Rian was granted asylum by the Dutch state, after the IND factored in the statements his partner made in 2018 and recognised Rian’s homosexuality as legitimate (van der Vleuten, 2019).
Case 2: Homosexual Male
The second case is of a homosexual man from Pakistan, named H. (to preserve his anonymity). H. applied for asylum on 23 May, 2017, because he was “experiencing problems in Pakistan because of his sexual orientation” (Anon. H. v. de staatssecr. van Just. en Veiligheid, 2017). His application was rejected because of inconsistent declarations about when he became aware of his homosexuality, with significant emphasis placed on the inconsistency of the ages at which he said he recognized his attraction toward men. H. appealed the decision on 28 August, 2017, and went to court on 22 September, 2017. The court ruled his appeal invalid and agreed with the IND that his own declarations did not sufficiently prove his sexuality (Anon. H. v. de staatssecr. Van Just. en Veiligheid, 2017).
Case 3: Lesbian
The third case is that of a homosexual female from Guinea, named L. here (to preserve her anonymity). L. applied for asylum on 15 April, 2016, together with her child. The IND pronounced her declaration of persecution due to being lesbian as unbelievable, because she did not show enough of a process of “realization.” The IND also doubts her current relationship with her female partner. L. appealed this decision on 25 August, 2017, and went to court on 22 September, 2017. The court ruled her appeal invalid, saying that the IND had sound reasons to declare her story unbelievable (Anon L. v. de staatssecr. Van Just. en Veiligheid, 2017).
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Singular Moments of Realisation
It’s apparent from the court cases and other field research that the IND takes singular moments as evidence of identity, but when multiple moments are presented they’re considered inconsistent. H.’s case was rejected because of inconsistent declaration of the ages at which he realized his attraction towards men. His lawyer explained the inconsistencies as different stages of realization: at age 6 he first had feelings for a man; at 11 he was first sexually attracted to a man; and at 16 he realised his homosexual “identity.” But the court agreed with the IND’s decision that his declarations were too inconsistent and did not sufficiently prove his identity. The process, therefore, is expected to be singular moments that are interpreted as consistent by the IND. José Renkens points out that interviewers often ask “at what moment” or when someone became “aware,” and that the wording of the question by definition beckons a singular moment, and not a process (Renkens, 2018).
In Rian’s case, the court emphasized that the applicant should be able to talk about a moment (or period) during which he became aware and what that means for him and his sexuality (Al Maamar v. de staatssecr. van Just. en Veiligheid, 2017). Thus the court doesn’t emphasise the process, but rather a period of time; a very short one. As one asylum lawyer told me in an informal conversation, the words “realisation” or “acceptance” are hollow to many asylum seekers. The applicants lack the required lexicon or cultural understanding of what it means to “accept” or “realize” their “sexuality.” Furthermore, asylum seekers might not be able to answer the questions consistently, because they are not used to a culture of reflection. Applicants may never have reflected on sexuality the way one is assumed to do in The Netherlands, and therefore never before considered the moment they first “realized” it (Asylum lawyer, personal communication, 25 September, 2017).
The Struggle of Self-Realisation
In the court cases it’s clear that the IND officers interpret lack of a struggle as a lack of insight into, or realization and acceptance of, queerness, which is then used to undermine the credibility of the applicant’s LGBTQ status. The expectation of a struggle is easily traced back to the article by LaViolette; the interview questions are based on the assumption that an individual will struggle with discovering their non-heterosexuality in a homophobic world.
All three court cases demonstrate that the IND expects to see a “struggle.” Rian was rejected because he had shown no doubt or concern regarding his homosexuality, which was deemed unrealistic given that it is taboo in Iraq. Similarly, H. did not show enough internal struggle, given the environment, as “from someone who grew up in such an environment [where homosexuality is not accepted] and claims to be homosexual, one can expect that [he] is able to declare well and consistently about realisation and self-acceptance” (Anon. H. v. de staatssecr. van Just. en Veiligheid, 2017, p. 2). This is especially interesting because the IND claims here that his homosexuality in a homophobic environment should help him recognize and describe a process of self-realization. However, as is clear from a review of the cases, genuinely queer individuals might not be able to declare consistently, especially if they lack the required lexicon or experience trauma or internalized homophobia due to having grown up in a homophobic environment.
Romance, Not Just Sex
The IND makes clear in the Werkinstructie that declarations about sexual acts will not be taken into consideration. This, combined with the questions regarding previous and past relationships, appear to prioritise romantic, affective same-sex relationships over same-sex sexual relationships. In Rian’s case, his appeal was granted largely because of the evidence he provided of his romantic relationship. Rian’s fiancé spoke to the court about how they want to build a life together. Both Rian and his fiancé cried in court, and although it cannot be proven that this show of emotion contributed to the decision to grant the appeal, it did present a readable picture of their emotional relationship.
In the case of the lesbian woman, her focus on the sexual side of her relationships with women was deemed “too vague,” unrealistic, and therefore not legitimate. L.’s declaration about her twelve-year secret relationship with a woman was judged unrealistic because she couldn’t provide details other than of their sexual encounters. She recalled stories about sleeping over at her partner’s house, but the IND claimed that descriptions of her sexual relationship were not enough to prove that the relationship was more than just friendship.
It is therefore clear that romantic, affective same-sex relationships are considered credible evidence of LGBTQ identity. However, sex and sexual identity have been shown to be culturally relative concepts and the individual may not be accustomed to speaking about their intimate romantic relationships in affective terms. Thus, they resort to “container terminology” about sexual activity (Beddeleem, 2017). Jan Beddeleem, a Belgian social worker, describes container terminology as words that asylum seekers will repeatedly use to indicate their queer identity, without being able to use it in context or understand the full meaning of it. It is an attempt to be “readable” to the state by using the correct terminology that often actually results in them being seen as credible. Conversation with an LGBT asylum lawyer confirmed that some asylum seekers are not used to talking about their homosexuality and that is why they focused on sexual acts. Their sexuality has always been discrete and they cannot talk about it in open, affective terms, so they only speak about the sex act (Asylum lawyer, personal communication, 25 September, 2017). An IND officer also agreed that asylum seekers may be used to different expressions of love and attraction than are Dutchmen, but remained adamant that applicants should be able to talk about things other than physical sex (IND lawyer, personal communication, 22 September, 2017). Renkens argues that even if an applicant is only able to talk about the sexual elements of the relationship, this might just mean that they are “practicing” homosexuality, but don’t identify with other elements of it (Renkens, 2018).
The IND appears to take the self-proclaimed sexual identity of the applicant as rigid, and then use any narrative evidence that contradicts this label to argue that the asylum narrative is not consistent. In L’s case, part of what made her lesbian identity not believable was that she has had sexual relationships with men in the past, even after arriving in The Netherlands. Her lawyer argued that her having sex with men could be explained by the fact that she has a preference for women but doesn’t mind having sex with men; although she is emotionally attracted to women, she accepts the physical act of sex with men. The IND declared that her relationship with a man, upon coming to The Netherlands, made her sexual identity not genuine, because she had previously claimed to be a lesbian. Furthermore, the IND said that the fact she conceived a son with a Dutchman, who paid her to have sex, undermined the credibility of her claim to be a lesbian (Anon. L. v. de staatssecr. van Just. en Veiligheid, 2017).
The IND expects to see no contradicting behaviours to the self-proclaimed identity, using the logic that sex with men contradicts that someone is a lesbian. It is clear from her lawyer’s arguments that she may fall anywhere on the bisexual+ spectrum, but perhaps just didn’t have the lexicon to express this. Identity labels, used to self-identify in defined categories of sexuality, are culturally determined, and may even be misunderstood by the applicant (Lee & Brotman, 2011). She may have been using “lesbian” as a container word (Beddeleem, 2017), not realising that this would imply to the interviewer that any behaviour outside this identity would contradict the believability of it.
In L.’s case, the IND also appeared to expect that once she arrived in The Netherlands, she would be confident about enacting her sexual orientation. The IND claimed it was not believable that once she arrived she didn’t know how to start a relationship with a woman; she’d claimed to have had a lesbian relationship in the past. However, confidence in her sexuality would be linked to the later stages of the identity formation model suggested by Cass (1979). L. had a brief relationship with a man, which the IND interpreted as contradicting her lesbian identity. These contradicting behaviours could also suggest that she hadn’t yet accepted her identity. Why does the IND assume that the asylum seeker has reached a high level of identity acceptance, or synthesis, when they arrive in The Netherlands?
This was corroborated by an informal conversation I had with an asylum lawyer. They stated that often the process of realization of identity only starts after the asylum seeker arrives in The Netherlands; often applicants are still in the middle of a process of figuring out identity; the IND should stop assuming that they will have undergone the entire process upon arrival (Asylum lawyer, personal communication, 25 September, 2017). Berg and Millbank wrote extensively on this subject and concluded that not only is identity formation not universal or linear, but the applicant does not “reach some higher state of self-actualization coinciding neatly with her entry into the receiving country or her articulation of her claim for refugee status” (Berg & Millbank, 2009, p. 200).
In summary, the IND recognizes the legitimacy of queer identity only when the asylum seeker’s story includes (1) a struggle with same-sex attraction, (2) moments of realisation and coming out that lead to (3) a stable, self-actualized identity, which (4) the applicant can discuss in affective rather than sexual terms and (5) perform in public settings. The IND’s verification of “legitimate” queerness has been shaped by a Western discourse, dominant in The Netherlands, that positions non-heterosexual identity as fixed, public, self-actualized, and publicly demonstrated. How can we expect such a system to accurately assess the queerness of asylum seekers from other cultures and other histories? How can we learn to hear or read the many different discourses and cultural understandings of what it means to be queer?
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As a bachelor student, educated in international human rights law, anthropology, criminology, and social psychology, I went into this investigation with limited knowledge of the intricacies of Dutch asylum law, credibility assessment, or the specific challenges existing in queer asylum processes. I took on the role of learning through doing, mainly by asking questions and attempting to understand or flesh out the various perspectives on this issue. Given my international, interdisciplinary education at University College Utrecht, I was able to bring a different perspective to this issue that includes understanding of human rights law and criminal courts, focused on cultural understandings of identity from an anthropological perspective.
Being white and Dutch, I needed be aware of my own privileges and avoid falling into the trap of “othering” the asylum seeker as the oppressed individual. Given that asylum decisions are not made in a vacuum, it is important to consider the discourse concerning homosexuality and migration in Islamic countries. The Netherlands has seen the rise of nationalism in combination with Islamophobia (Ewing, 2008) whereby sexuality in the West is seen as progressive and contrasted with homophobia in Islamic countries, which are portrayed as “traditional,” stagnant, non-secular, resistant to change (ibid.). Brennan considers this framing problematic in terms of LGBTQ asylum seekers as they are an exception to anxiety over Muslim migration and a token of Western tolerance of homosexuality (Brennan, 2016). Asylum seekers are seen as a subversion of Islam, while the Dutch government is conceptualised as “white liberals saving brown queers from brown men” (Brennan, 2016).
As a researcher, I brought my left-leaning political views with me into the field. Given interest in activism, I consequently kept an empathetic gaze towards those whom I believe are marginalized under the administrative systems represented by the IND. It has been important for me to recognise these biases in conducting this research, and how they can affect my analysis. I, of course, carry my own cultural understandings of what it means to be queer, and deconstructing these has been a learning process, in and of itself, during the fieldwork.
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Those working in the field, but especially IND interviewers and lawyers, need to be aware of their own cultural understanding of what it means to be queer, and the fact that not all asylum seekers fit into this understanding. Beddeleem tells us that training for interviewers exists, but it’s rarely required, and doesn’t adequately address specific LGBTQ issues (Beddelem, 2017). The IND interviewers receive “inclusiveness training” from EASO, the European Asylum Support Office (IND lawyer, personal communication, 22 September, 2017). Although this training covers special considerations for LGBTQ applicants, it doesn’t provide much information about the different cultural expressions of sexual orientation (“EASO Tool”, 2016). Given this gap, I recommend that interviewers seek more training and information about other cultural constructions that exist, outside of the discourse on sexuality they’re familiar with. And given the wide variety of constructions of sexuality, it follows that there should be more nuance in the questions asked based on the country of origin of the applicants. LGBTQ applicants come from a diverse range of countries with diverse constructions of sexuality. A uniform asylum procedure should not be applied to all.
Read the IND’s Werkinstructie 2019/17 document
Lotte Wolff has received an MA in Development Studies from the Graduate Institute of International and Development Studies in Geneva. She has conducted research on LGBTIQ+ people seeking asylum in both the Netherlands and Australia, combining queer theory with an interdisciplinary analysis of domestic migration policies and practices. She is particularly interested in the intersections of colonial history, postcolonial, gender and queer theory, and migration governance.