Easier for gay refugees to get EU asylum now

Easier for gay refugees to get EU asylum now
People take part in the 22nd Gay Pride Parade in Buenos Aires November 9, 2013.

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".

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