Easier for gay refugees to get EU asylum now

Homosexual refugees who face imprisonment for their sexual orientation in their country of origin will now find it much easier to obtain asylum in Europe after a landmark decision by the continent's top court.

The European Court of Justice (ECJ), the EU's highest judicial authority, ruled last week that a "credible threat of imprisonment for homosexuality" constituted grounds for asylum.

The verdict will have an immediate effect on asylum applications from mainly African citizens now before the national immigration authorities of the EU's 28 member states, with the exception of Denmark which has opted out of the justice mechanism. But, over time, it may also affect asylum applications from all nations where homosexuality is still deemed a criminal act.

Until now, European governments applied the traditional interpretation of international law and existing global treaties, both of which say that "a particular social group" with a "well-founded" fear of persecution can claim asylum status if the persecution of that group amounts to a "severe violation of human rights".

Three gay refugees, from Senegal, Sierra Leone and Uganda - named X, Y and Z to protect their identities - sought asylum in the Netherlands on the basis of their sexual orientation.

The authorities denied their applications in 2011, but the Netherlands' highest court turned to the ECJ for a ruling on whether gays can be considered a "particular social group", and whether criminalisation of their sexual activities in their home countries amounted to persecution.

The ECJ ruled that national laws specifically targeting homosexuals do indeed make them a separate group worthy of protection. Significantly, it said if the law in their country of origin specified jail for such sexual activities, that amounted to persecution.

Nevertheless, the court made a crucial distinction between legislation which criminalises homosexuality and is actively enforced, and anti-gay laws which are on the statute books in many countries but are not applied.

"The fact that punishment is threatened for homosexual acts is not enough" said presiding judge Alexandra Prechal.

"Actual imprisonment must be imposed and carried out in the refugee's country of origin" before an application for asylum can be accepted, she added.

This means that, at least for now, the ruling largely applies to gay asylum-seekers from Africa, where 36 out of 57 nations jail people engaged in consensual same-sex relations, and prominent leaders routinely dismiss homosexuality as "un-African".

The ECJ ruling does not affect these countries' sovereign right to legislate as they wish, but does mean that, if their citizens find themselves on Europe's shores, asylum status would be far easier to obtain.

Although the ECJ ruling was restrictive, it is bound to be interpreted more widely.

One reason is that even nationals of countries where anti-gay laws are not enforced may be able to benefit from asylum if they can point to a handful of prosecutions which could have resulted in jail sentences; the ECJ did not define its reference to a "credible threat of imprisonment for homosexuality".

More importantly, the ECJ also told the European authorities that they cannot reject asylum pleas by telling applicants that they should return to their home countries and be safe by simply concealing the fact that they are gay.

Sexual orientation is "so fundamental to a person's identity that the persons concerned cannot be required to renounce it", the judges wrote. This effectively eliminates one of the main arguments which European governments use to deny applications from nationals of countries where anti-gay legislation is not enforced.

Nobody knows how many asylum cases could be affected, but many more are now likely.

The country most likely to be immediately affected is Russia, where President Vladimir Putin, who relishes his macho image, has gone against the Europe- wide trend by enforcing new anti-gay legislation.

Immediately after the ECJ ruling was published, Dutch Foreign Minister Frans Timmermans, who previously referred to Mr Putin as "homophobic", told his country's Parliament that homosexuality will from now on play a greater role in handling asylum applications from Russia's citizens.

Jonathan.eyal@gmail.com

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