Rules to grant asylum in European Union Member States are laid down in the Directive on asylum qualifications. The Directive holds that depending on circumstances in their country of origin, people belonging to “particular social groups” may seek refuge in the EU.
Faced with asylum requests from three gay men from Senegal, Sierra Leone and Uganda, the Dutch State Council asked the CJEU whether homosexual people were considered a “particular social group” within the meaning of the Directive.
The Court of Justice answered that indeed, people of a specific sexual orientation targeted by laws criminalising their conduct or identity could constitute such a group.
The Court added that prison sentences prescribed by law only counted as “persecution” when they were enforced. This is the case in most of the 76 countries criminalising homosexuality, but not all.
Finally, the Court affirmed that EU Member States could not reasonably expect gay, lesbian and bisexual asylum-seekers to hide their sexual orientation in the countries they fled.
Jean Lambert MEP, European Parliament rapporteur for the Directive when it was re-drafted in 2011, commented: “As Rapporteur on the Asylum Qualification Directive, I am extremely happy to see the Court decided to interpret EU law humanely.”
“Now Member States must heed the Court’s ruling, and carefully consider the dire situation in 76 countries that still make being gay or lesbian a crime.”
Michael Cashman MEP, Co-President of the LGBT Intergroup, added: “This is certainly a landmark decision, and the right one.”
“I hope Member States will work constructively with the excellent guidance being developed by the European Asylum Support Office in Malta, so that our asylum procedures become more accommodating of the terrible realities people flee.”