The decision by the EU’s top court came from joint proceedings on three cases: “X”, a national of Sierra Leone, “Y”, a national of Uganda, and “Z”, a national of Senegal, all applied for asylum in the Netherlands. They claimed “that they have a well-founded fear of being persecuted in their countries of origin by reason of their sexual orientation,” according to court documents. Homosexual acts are illegal in the three African countries and are punishable by fines and up to life imprisonment.
Under a 2004 European directive, in many instances people can seek refugee status in the EU if they have a “well-founded fear of being persecuted”--leading to a “severe violation of basic human rights”--for a number of reasons including “membership of a particular social group”.
The Netherlands Council of State--which is hearing the applicants’ final appeal--asked the ECJ if homosexuals can be considered a “particular social group”, and if potential prison sentences meet Europe’s definition of persecution.
On Thursday, the ECJ judges ruled that gays and lesbians were indeed a specific class, and in certain cases anti-homosexuality laws could justify granting asylum requests.
The court said that: “a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it.” The judges also ruled that: “an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.”
EU authorities must investigation persecution claims
At the same time, the court said the mere existence of anti-homosexual laws did not meet the European definition of persecution.
It would be considered persecution, however, if gays and lesbians were actually sentenced to prison terms in their country of origin. It is up to authorities in each EU member state to determine if “such legislation is applied in practice”.
The matter now returns to the Dutch council for final adjudication.
The three cases were C-199/12, C-200/12 and C-201/12 (X, Y, Z v Minister voor Immigratie en Asiel).