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Gays recognised as “social group” for asylum purposes

11 November 2013

Homosexual applicants for asylum can constitute a particular social group who may be persecuted on account of their sexual orientation, the EU Court of Justice has ruled.

The decision, made on a reference by the Dutch Raad van State, means that gay people can claim refugee status under Council Directive 2004/83/EC if they have a well founded fear of acts of persecution sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights.

Three nationals of Sierra Leone, Uganda and Senegal respectively had claimed refugee status in the Netherlands, founding on homosexual acts being a criminal offence in their countries of origin, with the possibility of serious punishment, from heavy fines to life imprisonment in certain cases.

The Raad van State asked for a preliminary ruling on the meaning of “particular social group” in the directive, and how the national authorities should assess what constitutes an act of persecution against homosexual activities in that context.

In its judgment, the Court of Justice noted that it was common ground that a person’s sexual orientation is a characteristic so fundamental to their identity that they should not be forced to renounce it. It also recognised that the existence of criminal laws specifically targeting homosexuals supported a finding that those persons formed a separate group which was perceived by surrounding society as being different.

However, not all violations of the fundamental rights of a homosexual applicant for asylum would necessarily be “sufficiently serious” for the purposes of the directive. The mere existence of legislation criminalising homosexual acts could not be regarded as an act constituting persecution. However, a legislative provision which punished homosexual acts with a term of imprisonment might constitute an act of persecution per se, provided it was actually applied in practice. It was for the national authorities considering the application to examine all the relevant facts concerning the applicant’s country of origin, including its laws and regulations and the manner in which they were applied.

The court added that it was not reasonable to expect that in order to avoid persecution an asylum seeker should conceal their homosexuality in their country of origin or exercise restraint in expressing it. To do so would be incompatible with its recognition as a fundamental characteristic of the person.

Click here to view the judgment.