Refugee Claims Based on Persecution Due to Sexual Orientation before the Court of Justice of the European Union

1. Introduction

Lesbian, gay, bisexual and transgender (LGBT) individuals face persecutions due to their sexual orientation or gender identity in 78 States worldwide (Itaborahy & Zhu, 2013). Sexual orientation is understood as referring to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender. Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms (Yogyakarta Principles, 2007). The first decisions on requests for asylum on the ground of sexuality were made in 1994 in both Canada and Australia. In 1995 the United Nations High Commission for Refugees (‘UNHCR’) accepted that lesbians and gays can constitute members of a ‘particular social group’, eligible for protection under the terms of the 1951 Geneva Convention (Millbank, 2002), while the notion of gender-related crimes against humanity in the Statute of the International Criminal Court included violations targeting homosexuals (Oosterveld, 2006).

In countries criminalizing same-sex emotional and sexual conduct, LGBT persons may suffer extreme physical and verbal abuse, discriminations and persecutions. Occasionally persons affected by the legislation criminalizing homosexuality seek asylum in the European Union (EU) Member States (MS). The main aim of creating a Common Asylum System within the EU has always been to ensure that eventually all Member States would have uniform asylum procedures and common substantial requirements. The latter are set on Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees (the ‘Directive’). The requests of a preliminary ruling, referred by Dutch Courts in relation to the assessment of applications for refugee status submitted by three African homosexual men, gave the Court of Justice of the European Union the opportunity to clarify the conditions to be met in order for homosexuals to be granted international protection under the provisions of the Directive.

In its decision of 7 November 2014 (Joined cases C-199/12 to C-201/12, Judgment ECLI:EU:C:2013:720) the Court affirmed that the existence of laws which specifically target homosexuals supports the finding that these persons must be regarded as forming a particular social group within the meaning of Directive. However, criminalisition of homosexuality does not constitute per se an act of persecution justifying the granting of asylum. According to the Court’s findings, only legislation which sanctions homosexuality with imprisonment and which is actually applied in the country of origin of the applicant shall be regarded as constituting a disproportionate and sufficiently serious punishment under the Directive. Despite the limited scope of the protection awarded, the Court affirms that sexual orientation forms such an integral part of one’s personality that its manifestation should not be subjected to any restrictions. In its first part this paper examines the Court’s interpretation of the relevant provisions and subsequently, in the second part, some critical remarks are outlined in relation to the rather elliptical approach followed by the Court.