Brussels, 07/11/2013 (Agence Europe) - Homosexual applicants for asylum can constitute a particular “social group” under Directive 2004/83/EC (minimum standards for being able to claim refugee status), as they are likely to be persecuted due to their sexual orientation. The existence of a term of imprisonment in the country of origin imposed as a sanction against homosexual acts may constitute an act of persecution per se, provided that it is actually applied.
That is the substance of the ruling delivered on 7 November by the EU Court of Justice (joined cases C-199 to 201-12) in answer to questions raised by the Netherlands Council of State, which was called upon to rule on giving refugee status in the Netherlands to three African nationals who fear they will be persecuted in their countries of origin where homosexual tendencies are criminal offences liable to imprisonment. The national court asked the Court of Justice whether: - third country nationals who are homosexuals may be regarded as forming a particular social group within the meaning of the directive; - how the national authorities should assess what constitutes an act of persecution against homosexual activities in that context; - and whether the criminalisation of those activities in the applicant's country of origin, which may lead to imprisonment, amounts to persecution.
In its judgment, the Court of Justice considers that the existence of criminal laws specifically targeting homosexuals supports a finding that those persons form a separate group, which is perceived by the surrounding society as being different. Nonetheless, the mere existence of legislation criminalising homosexual acts cannot be regarded as sufficiently serious violation of fundamental rights to be considered as persecution under the Geneva Convention and, consequently, under Directive 2004/83/EC which refers to it. On the other hand, imprisonment penalising homosexual acts is likely to constitute an act of persecution per se, provided that it is actually applied. In those circumstances, when an applicant for asylum relies on the existence in his country of origin of legislation criminalising homosexual acts, it is for the national authorities to determine whether, in the applicant's country of origin, the term of imprisonment provided for by such legislation is applied in practice. As to whether it is reasonable to expect that, in order to avoid persecution, an asylum seeker should conceal his homosexuality in his country of origin or exercise restraint in expressing it, the Court replies that it is not. Requiring members of a social group sharing the same sexual orientation to conceal it is incompatible with the recognition of a characteristic so fundamental to a person's identity that the persons concerned cannot be required to renounce it, the Court states. (FG/transl.jl)