The European Union's high court in Luxembourg ruled Thursday that refugees who face prosecution in their home countries because of homosexual acts have the right to asylum in the EU.
The case heard by the European Court of Justice centered around three gay men from Sierra Leone, Uganda and Senegal who had unsuccessfully fought to be given refugee status in the Netherlands. Homosexuality is a prosecutable crime in each of those countries, the court noted, with serious punishments that can include heavy fines or even life imprisonment in some cases.
The court overturned the Dutch decision.
Justices in Luxembourg have now ruled that gays and lesbians represent "social groups" in accordance with the Geneva Convention on refugees' rights. The court also found "it is a common ground that a person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it." The court also said that "the existence of criminal laws specifically targeting homosexuals supports a finding that those persons form a separate group which is perceived by the surrounding society as being different."
Threat of Prosecution Alone Not Grounds for Asylum
The court also held that national asylum authorities cannot expect that a refugee "should conceal his homosexuality in his country of origin or exercise restraint in expressing it" in order to avoid persecution. It argued this was "incompatible" with the "recognition of a characteristic so fundamental to a person's identity that the persons concerned cannot be required to renounce it."
The Dutch Immigration and Naturalization Service had argued one could expect foreigners to exercise greater restraint in public about their homosexuality in their country of origin.
Advocate General Eleanor Sharpston had argued in court in July that the EU must provide protection for gays and lesbians facing persecution, but that the threat of prosecution for homosexual acts in their country of origin alone was not grounds for granting asylum. Instead, she argued, national authorities must review whether it is probable that an asylum-seeker would actually be persecuted as a result of his or her sexual orientation or whether the sum of "diverse measures" would violate that person's human rights.
The judges in Luxembourg concurred with Sharpston's arguments in their ruling. In order for a violation of fundamental rights to constitute persecution within the meaning of the Geneva Convention, the court stated, "it must be sufficiently serious." The court said it was up to the national authorities in member states in which the asylum application is submitted to make that determination.
According to the ruling, the existence of legislating criminalizing homosexual acts alone is not a sufficient violation of the rights of gays and lesbians to require the granting of asylum. It ruled that EU member states would only be required to provide asylum if imprisonment in each of the countries of origin "is actually applied."
Human rights organizations say that gays and lesbians are persecuted in many African countries. Homosexuality is explicitly banned in the laws of 38 countries, according to Amnesty International.