Yesterday, the European Court of Justice came out with a positive and clarifying judgement, concluding that homosexuals can constitute a “particular social group” and thereby qualify for asylum in a EU Member State. The case concerned three persons having applied for asylum in the Netherlands, fleeing from Sierra Leone, Uganda and Senegal respectively. In all these countries, homosexuality is a criminal offence and can be punished with everything from fines to life imprisonment. There are 76 (!) countries today, in which homosexuality is prohibited.
The EU-rules for determining who is a refugee is found in the Qualification Directive. The rules are based on the Geneva Convention, defining refugees as any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. According to the Convention, refugee status qualifies for granting asylum.
The judgement of the ECJ is an important and welcomed one, since not all countries interpret the Geneva Convention in a way that includes persecution of homosexuals (despite the UNHCR handbook already since a long time suggesting such an interpretation). For countries such as Sweden and Belgium, nothing will change as they already grant protection to persecuted homosexual individuals – but the Court’s decision will provide guidance to the whole Union.
However, the court added that the mere existence of legislation criminalizing homosexual acts is not sufficient to constitute persecution, but there needs to be a serious risk for sanctions, such as imprisonment. The judgement also clarified that it is not acceptable to require homosexual individuals to conceal their sexual orientation to avoid persecution, as it is so fundamental to a person’s identity and thus, the persons concerned cannot be required to renounce it. It is an important clarification as there have actually been cases where authorities have rejected asylum applications on the basis that one can hide their sexual orientation and thereby avoid persecution.