Sexual Orientation, Female Genital Mutilation, and Health in Asylum Cases: International and ECHR Jurisprudence

Sexual Orientation, Female Genital Mutilation, and Health in Asylum Cases: International and ECHR Jurisprudence

Christina M. Akrivopoulou (Hellenic Open University, Greece) and Theodora Roumpou (Greek Refugee Appeals Authority, Greece)
DOI: 10.4018/978-1-4666-8153-8.ch003

Abstract

This chapter examines three categories of cases regarding asylum and refugee rights according to the Geneva Convention provisions (1951) and the European Convention of Human Rights (Art. 3): 1) cases where a fear of persecution to the country of origin is based on the applicant's sexual orientation (homosexuality), 2) cases where the fear of persecution is connected with practices of female genital mutilation, and 3) cases regarding serious health problems of the asylum seeker. The jurisprudence of national supreme courts and EctHR on these subjects, especially regarding the interpretation of Art. 3 ECHR, which forbids torture, inhuman and degrading treatment, is analyzed. Although an international consensus exists today regarding the protection of asylum seekers on the basis of sexual diversity (homosexuality), in cases of female genital mutilation and health problems the national supreme courts and the ECtHR are far more hesitant in acknowledging asylum rights and refugee status.
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Cases invoking the fear of persecution in the country of origin due to the sexual orientation (homosexuality) of an asylum seeker are based today on an international consensus. Namely, the acknowledgment of refugee status in these cases is provided to all those who face the risk of not being able to enjoy freely and openly their right to sexual orientation if they are forced to return in their country of origin. These cases fall into the category of a ‘particular social group’ according to the Geneva Convention and into the protective scope of Art. 3 ECHR regarding torture, inhuman or degrading treatment in their country of origin because of their sexual orientation. Nowadays, approximately seventy national jurisdictions criminalize homosexual behavior (one of third of the world states internationally) while forty of them specifically criminalize male homosexual behavior (Council of Europe, 2011). If someone examines the issue from a purely quantitave point of view, s/he conclude it concerns a large number of cases.

The first judicial decision granting asylum protection to homosexuals was recorded in Netherlands by the Judicial Division of the Council of the State in 1981 (D 12-51, 13.81981). Today, the acknowledgment of asylum rights to homosexuals is considered to be a positive obligation incorporated into EU law as well as to the relevant guidelines and recommendations of the United Nations High Commissioner for Refugees, the recommendations of the Council of Europe and the case law of supreme national courts. This framework has constructed an international consensus regarding the acknowledgment of asylum protection in all cases where asylum seekers are confronted with a fear of persecution regarding their sexual orientation and their inability to enjoy freely and openly their sexual freedom.

Decisive from this point of view are the provisions of Directive 2004/83/EC and especially Art. 10(1) (d) which explicitly recognizes the positive obligation of Member States to take into account that within the meaning of the Geneva Convention:

Member States shall take the following elements into account when assessing the reasons for persecution: [...] (d) a group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, ... or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.

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