Persecution Due To Sexual Orientation As A Reason For Asylum In The Jurisprudence Of The
CJEU
Presented by: Dr. FÁBIÁN
Date: 2 May 2024
Facts And Numbers
- Today 65 countries criminalize private, consensual, same-sex sexual activity as
"sodomy", "gross indecency" or "crimes against nature": 31 (Africa), 22 (Asia), 6
(Caribbean and South America), 6 from the Pacific. THEREOF:
• 41 countries criminalize private and consensual sexual activity between women.
• 14 countries criminalize transgender gender identity and/or expression ("cross-
dressing", "impersonation" and "disguise")
• 12 countries regulate the death penalty for homosexuality: 5 of these apply the
death penalty (Iran, Northern Nigeria, Saudi Arabia, Somalia and Yemen), and
in 7 the death penalty is a legal possibility (Afghanistan, Brunei, Mauritania,
Pakistan, Qatar, United Arab Emirates and Uganda).
- Decriminalization of homosexuality in Eastern Europe:
• "Early tolerant": Poland (1932), Czech Republic (1961), Slovakia (1962),
Hungary (1962), Bulgaria (1968), Croatia (1977), Montenegro (1977) and
Slovenia (1977);
• "Taliban’s": Lithuania (1993), Estonia (1992), Romania (1996), Serbia (1994),
Ukraine (1991), Albania (1995), Latvia (1992), North Macedonia (1996),
Moldova (1995), Russia (1993), Bosnia and Herzegovina (1998-2001), Georgia
(2000), Armenia (2003), Azerbaijan (2000), Kazakhstan (1998).
• EU - lack of incrimination = asylum magnet
C-199 to 201/2012 Minister voor Immigratie en Asiel vs X, Y, Z Judgment of 7 November
2013
- Three citizens from Sierra Leone, Uganda and Senegal being between 25-28 years old
invoked their homosexual orientation to obtain asylum in the Netherlands. They came
from countries that sanction "unnatural sex".
- The Dutch authorities rejected their application for asylum on the basis of their sexual
orientation on the grounds that they had not adequately proved the facts and
circumstances invoked and therefore had not demonstrated that, once back in their
respective countries of origin, they had a well-founded fear of persecution on account
of their membership of a particular social group, namely that they should not
necessarily be free to express their orientation publicly in the same way as they might
do in the Netherlands.
- What is sexual orientation? = Sexual orientation is both a normal expression of human
sexuality and immutable, generally not chosen and highly resistant to change = each
person's capacity for profound emotional, affectional and sexual attraction to
individuals of a different gender or the same gender or more than one gender.
- The existence of criminal legislation in a third country specifically targeting
homosexuals makes it possible to conclude that these persons must be regarded as
forming a particular social group;
- The mere/simple criminalization of acts of homosexuality does not constitute in itself
an act of persecution,
- A custodial penalty which punishes acts of homosexuality and which is actually applied
in the country of origin must be regarded as a disproportionate or discriminatory penalty
and therefore constitutes an act of persecution;
- the European authorities cannot reasonably expect the asylum seeker, in order to avoid
the risk of persecution, to conceal his homosexuality in his country of origin or to held
back from expressing his sexual orientation.
C-148/13 to C-150/13, A, B, C vs. Staatsecretaris van Veiligheid en Justitie Judgment of 2
December 2014
- The asylum applications of A, B, C were rejected as not credible by the Dutch
authorities:
• In the case of A on the ground that although he indicated that he agreed to
undergo a "test" that would prove his homosexuality or to perform a homosexual
act to prove the reality of his declared sexual orientation, he did not contest a
first refusal decision and made a second application for asylum on the same
ground;
• In the case of B on the grounds that his statements on his homosexuality were
vague, summary and lacking in credibility, as he could not provide details of his
feelings and inner process regarding his sexual orientation;
• In the case of C, on the ground that although he had submitted to the authorities
a video recording of intimate acts with a person of the same sex, he only
remembered that he was homosexual after an asylum application had been
rejected on another ground without contesting that decision; he did not contest
that first decision and submitted a second asylum application, this time based
on the fear of persecution in his country of origin on account of his
homosexuality. The authorities also noted that C did not clearly explain how he
became aware of his homosexuality and could not answer questions about
Dutch gay rights organizations.
• A. The declared sexual orientation of an asylum seeker and the written or other
evidence submitted in support of his or her application cannot be assessed by
the authorities by means of questioning based solely on stereotypical notions
about homosexuals BUT the applicant is obliged to submit "as soon as possible"
all the necessary elements in support of his/her application for international
protection, leaving the timing to his/her discretion.
• B. The competent national authorities must not conduct detailed interviews on
the sexual practices of an asylum seeker:
1. They are contrary to the fundamental rights guaranteed by the Charter
and in particular the right to respect for private and family life (Art. 7);
2. Their possible submission to "tests" in order to establish their
homosexuality, the presentation by the applicants in question of
evidence such as video recordings of their intimate acts, in addition to
not necessarily having probative value, would be likely to undermine
human dignity. (Ex. Phallometric test = empirical testing the physical
reaction to heterosexual pornographic material; Kurt Freund's Method -
penile plethysmography and vaginal photoplethysmography -
implication of testing machines).
C-473/2016, Judgment of 25 January 2018 F v. Bevándorlási és Állampolgársági Hivatal
(Citizenship and Immigration Office)
- National authorities may order an expert assessment to be carried out as part of the
evaluation of the facts and circumstances of an applicant's declared sexual orientation:
• 1. provided that the modalities of such expertise are consistent with the
fundamental rights guaranteed by the Charter;
• 2. provided that such authority and such courts do not base their decision solely
on the conclusions of the expert report;
• 3. Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of
Fundamental Rights of the European Union, must be interpreted as excluding
the carrying out and use, for the purpose of assessing the true nature of the
declared sexual orientation of an applicant for international protection, of a
psychological expert opinion.
Politically Correct Conclusions
- 1. Both the CJEU and the ECHR have consistently held that sexual orientation is a
fundamental aspect of a person's identity and conscience, from which it follows that
such a person cannot be required to express/live their sexuality in secret. On the other
hand, we must not forget that real sexual orientation is acquired by birth, is immutable
and resistant/reliable to change, although a person's other identities such as ethnicity,
language or culture can be changed voluntarily.
- 2. Sexual orientation in itself does not automatically constitute sufficient grounds for
persecution for asylum, but a causal link between the two must be proven. PER SE the
prospect of criminal sanctions for sexual orientation does not constitute a ground for
persecution if these provisions are not applied by the state authorities.
- 3. On the other hand, a custodial penalty which penalizes acts of homosexuality and
which is actually applied in the country of origin which has adopted such legislation
must be regarded as a disproportionate or discriminatory penalty and therefore
constitutes an act of persecution.
- 4. The danger of persecution based on sexual orientation may come not only from state
authorities, but also from private actors, for example in the form of blackmail from non-
homosexual entourage or in the form of violent reaction from family members. In such
situations, however, we cannot speak unconditionally of persecution by the state of
origin without addressing immutability.
- 5. Basic principles of granting refugee status to LGBT persons
• Burden of proof of sexual orientation = asylum seeker;
• "Benefit of the doubt"/presumption "in dubio pro reo" = is in favour of Asylum
seekers
• Credibility check = obligation of the State where the asylum application was
lodged;
• Questions relating to a person's personal sphere regarding his/her sexuality =
must be subsidiary, supplementary and not decisive.
- 6. Given that, according to the case law of the CJEU, the provisions of the Qualification
Directive must be interpreted in the light of its general structure and purpose, in
compliance with the Geneva Convention and the other treaties in this field, and with
respect for the rights recognized by the EU Charter of Fundamental Rights, national
courts, when applying national law transposing the Directive, will have to apply a
principle of double mediated effect (based on the analogy Mar leasing, Von Colson &
Kamann), since they will have to take into account not only the purpose and spirit of
the Directive, but also the content of the Geneva Convention.
Real Conclusions
- 8. Invoking sexual orientation is the best and surest way to obtain asylum protection
because:
• It does not have to be proven;
• It does not have to and cannot be tested on grounds of human dignity;
• Its credibility cannot be questioned (8-9000 people from the LGBT community
claim asylum in EU every year).
- 9. The only way to stop this ground being misused remains to prove the insufficiency
of the seriousness of the criminal persecution in the country of origin, but this is
undermined by the waiver of the "discretion order".
- 10. The pan-European "collective" solution to this kind of asylum could be the political-
economic pressure exerted on the 65 "non LGBTQ friendly" states by the European
Union institutions and those EU member states that are notorious for their hyperactivity
in this area.
- 11. The "individual/palliative" solution would be to verify the reality of sexual
orientation after the granting of refugee status on the model of detecting and cancelling
marriages of interest/appearance entered into for fraudulent acquisition of citizenship.
