The European Court of Justice has ruled that active criminalization of homosexuality can be grounds for asylum, an important ruling that unfortunately doesn’t go nearly far enough.
The Case for Asylum on Grounds of Sexual Orientation
The ruling was prompted by the cases of three Africans, known only as X, Y, Z, who are from Sierra Leone, Uganda and Senegal respectively. They have all sought asylum in the Netherlands, claiming that they have a fear of being persecuted in their home countries because of their sexual orientation. Based on the laws in effect in their home countries, they contend they could be subject to heavy fines or life imprisonment.
The Council of State for the Netherlands sought the European Court of Justice’s opinion as to how to assess this kind of claim and how it should be reconciled with European and global human rights standards. In particular, the Council asked what actually constitutes an “act of persecution” against gay people in this context and whether criminalization is of itself enough to warrant asylum.
The Court Decides: Countries Imprisoning Gays Should Warrant Asylum
The Court made a number of declarations in deciding this case, many of them not new but all of them very important.
First, the Court highlighted its previous recognition that a person’s sexual orientation is a fundamental characteristic. Therefore, the Court said, it is not appropriate to deny asylum on grounds that someone should simply hide their sexual orientation. Such rulings have been given throughout Europe in the past, though are less common today.
With that in mind, the Court next recognized that in many nations of the world, and specifically in North Africa, there are laws specifically targeting the gay population on grounds of their sexual orientation. However, the question of what constitutes “persecution” under legal standards such as the Geneva Convention and European human rights laws differs from what may be broadly termed persecution and, the Court notes, must be “sufficiently serious.” For that reason, not all breaches of fundamental human rights qualify.
As such, the Court found that a country having a law criminalizing homosexuality is not of itself enough to grant refugee status. The country must be actively applying such laws to be classed as committing an act of persecution. That doesn’t necessarily mean a jail term, but obviously the degree of seriousness is high there and leaves little ambiguity.
In this regard, the Court stresses that it is for the country reviewing the asylum application to consider all relevant factors but that this is the legal benchmark for assessing a claim of “persecution” that violates the Geneva Convention and adopted human rights standards throughout Europe.
In one sense, this ruling is extremely positive. It means that for asylum applicants from countries that have active penal laws, such as Cameroon, Uganda, Nigeria and more, there is now an unequivocal statement that applicants should be considered persecuted and in danger. However, there is cause to say that this ruling is disappointing.
Persecution: Too Narrow a Field
To claim that legal persecution must hinge on whether a gay community faces jail time neglects that persecution can be achieved through so-called soft approaches that are no less harmful.
Consider Russia’s current attack on its LGBT population. President Putin has gone to great lengths to repeatedly state that Russia is not recriminalizing homosexuality and yet through its propaganda laws it has managed to set off a wave of persecution that has turned violent and chilling.
With even more legislative attempts aimed at removing gay peoples’ children and vague threats of further laws aimed at stopping “propaganda,” Russia is now a hostile and dangerous place to be for LGBTs. Yet under the Court’s reading of “persecution,” asylum claims on these grounds could fall short. Fortunately, several nations have used their own reading of the law to decide that what Russia is doing does in fact add up to persecution.
It should be noted that this latest ruling is a precursor to a wider clarification to be issued by the European Court of Justice as to how exactly the courts should determine a genuine claim on grounds of LGBT identity from one that is simply opportunistic. This is a question that courts the world over have had difficulty with, and as such the court’s clarification of this issue will be of keen interest to human rights groups when it is issued early next year.
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