The status of homosexuals is an extremely fascinating aspect of asylum and human rights law. Even in the freedom of western society, it is only fairly recently that homosexual, transgender and bisexual individuals have achieved parity – albeit superficially – with heterosexuals. Geography aside, gay people can be found in abundance all over the world and are routinely victimised because of their sexuality. Ultimately we are all human and of course sexual expression is inextricably linked to selfhood.
In these Dutch cases, the Court of Justice of the European Union (CJEU) held that sexual orientation is a fundamental part of identity and people should not have to abandon their sexuality. Similarly, criminal laws specifically targeting homosexuals clearly single them out from the rest of society.
X was from Sierra Leone where under section 61 of the Offences Against the Persons Act 1861 homosexuality is punishable by 10 years’ imprisonment to life. Y was from Uganda where under article 145 of the Penal Code Act 1950 being gay can attract a life sentence. Z was from Senegal where under Article 319.3 of the Senegalese Penal Code a conviction for engaging in homosexual acts may result in up to 5 years’ imprisonment and a fine of up to €2000. X, Y and Z sought asylum in the Netherlands on the basis that owing to their sexuality they had a well-founded fear of persecution in their respective countries of origin. They claimed that they were treated violently by their families and repressively by the authorities. Whilst their sexual orientation was considered credible, their asylum applications were refused because it was considered that X, Y and Z failed to demonstrate that upon return to their respective homelands they would be persecuted for being members of a particular social group.
The Qualification Directive or Council Directive 2004/83/EC (the directive) envisages a full and inclusive application of the Geneva Convention and affirms the principle that no one should be sent back to face persecution (sufficiently serious either by the nature or repetition of the acts of persecution as to constitute a severe violation of basic human rights) for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Against that background, in essence, the Dutch Raad van State or Council of State, the national court in charge of hearing these cases at final instance, asked the following questions of the CJEU (1) do homosexual third country nationals comprise a particular social group in line with article 10 – reasons for persecution – of the directive (2) for the purposes of article 9 – acts of persecution – of the directive how should acts of persecution be evaluated by national authorities (3) does the criminalisation of homosexuality in Sierra Leone, Uganda and Senegal and possible imprisonment after conviction amount to persecution.
The second question broke down into three sub-questions (a) whether homosexuals could be expected to hide their true sexuality to avoid persecution (b) if not then can they be expected to exercise restraint about their sexual orientation – and to what extent – and should they be expected to restrain themselves more than heterosexuals and (c) which, if any, areas of sexual orientation formed the core areas of a person’s sexual preferences as distinguished from areas which were not essential and what constituted the core area and in what way can it be determined.
The CJEU explained that the directive recognised that the Geneva Convention was the “cornerstone” of the international framework for protecting refugees and the directive was aimed at guiding the Member States so that they are able to apply the convention uniformly: para 39. The directive’s scheme and purpose underpin its connection to international law and it must be interpreted consistently with the Charter of Fundamental Rights (CFR).
In respect of the first question, the CJEU held that homosexuals share an innate characteristic, or a common background that cannot be changed and that sexual orientation is a trait so germane to a person’s identity that no one should be forced to renounce it: para 45. Similarly, as a group, homosexuals have a distinct identity in Sierra Leone, Uganda and Senegal because their sexuality is perceived as being different by society. Therefore, insofar as article 10 of the directive is concerned, in the context of the cases in the Dutch proceedings, the singling out of homosexuals as wrongdoers under the criminal laws of the countries in question meant that they “must be regarded as forming a particular social group”: paras 48 – 49.
The CJEU considered it necessary to examine the third question before the second. The Court noted that the question related to whether, upon a proper construction, article 9 of the directive is to be taken as meaning that the “mere” criminalisation of homosexuality, coupled with imprisonment, constitutes an act of persecution – if it does not, then in what circumstances does an act amount to persecution: para 50. Such acts, under article 9, must be sufficiently serious either naturally or by repetition to merit a severe violation of basic human rights; especially the absolute rights from which there can be no derogation within the meaning of article 15 (derogations) of the European Convention on Human Rights (ECHR).
Equally, the aggregation of sufficiently severe human rights violations also constitutes persecution. Not all violations of homosexual asylum seekers’ fundamental rights amount to persecution within parameters set by article 1(A) of the Geneva Convention because the violations must be sufficiently serious: para 53. Since article 8 ECHR (right to private and family life), to which article 7 CFR correlates, read with article 14 ECHR (anti-discrimination) and article 21 CFR, can be derogated from, the “mere” existence of laws criminalising homosexual acts is incapable of being considered as reaching the requisite degree of severity for the Court to rule that it constitutes persecution within the meaning of the directive: paras 54 – 55.
On the other hand, in the event that it is actually administered, imprisonment that coexists with legislation penalising homosexuality is by definition capable of amounting to persecution: para 56. Such measures breach article 8 ECHR and article 7 CFR and are disproportionate and discriminatory under article 9 of the directive and national courts must examine, in line with article 4 (assessment of facts and circumstances) of the directive, the legal environment (and manner of enforcement) in the country of origin: paras 57 – 58. Whether or not the imprisonment contemplated by the legislation in the country of origin is actually applied remains crucial and is determinative of whether a well-founded fear of persecution exists within the meaning of the directive: para 59. Therefore, the answer to the third question is that article 9 of the directive must be interpreted as meaning that in itself criminalising homosexuality does not amount to persecution but if imprisonment for homosexual acts is actually applied on the basis of legislation existing in the country of origin then such punishment is “disproportionate or discriminatory and thus constitutes an act of persecution”: para 61.
As regards the second question it was noted that the issue at hand was if homosexual asylum seekers comprised a particular social group under the directive, then must a distinction be made between those homosexual acts caught by the directive’s ambit and others which are not and do not lead to refugee status being granted. As identified above, in its full form the second question had been set out in three parts and it envisaged circumstances whereby persecution or direct persecutory threats on the basis of sexual orientation had not already occurred. So in the absence of a “serious indication” of a well-founded fear of persecution – where the fear was not based on persecution already suffered by reason of homosexuality – the referring court needed to know whether on return to his country of origin an asylum seeker “should continue to avoid the risk of persecution by concealing his homosexuality or, at the very least, that he should exercise restraint in expressing his sexual orientation”: para 64.
The CJEU examined sub-questions (a) and (b) – i.e. reading article 10 and article 2 (definitions) of the directive together, is it unreasonable to expect gay people to conceal their sexuality in order to avoid persecution and if not can they be expected to restrain their sexual orientation and to what extent and should they be expected to exercise restraint in expressing their sexual preferences more than straight people – of the second question together. In respect of the drafting of article 10 of the directive, sexual orientation cannot be understood to include acts considered to be criminal in accordance with the national laws of the Member States and except for those acts falling within the criminal law of the Member States the drafting of article 10 does not reflect the European Union legislature’s intention to oust other kinds of behaviour connected to sexual orientation from that provision’s scope: paras 66 – 67. The directive therefore does not restrict the outlook that homosexuals may espouse in connection with their identity and since in respect of religion the directive covers formal worship in both the public and private spheres, it is not possible to conclude that sexual orientation “must only apply to acts in the private life of the person concerned and not to acts in his public life”: paras 68 – 69. So expecting homosexuals to hide their sexual orientation is incompatible with “the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it” and by the same token asylum seekers cannot be expected to conceal their homosexuality in their country of origin to avoid persecution: paras 70 – 71.
In terms of exercising restraint, in the scheme of the directive, following Cases C-71/11 and C-99/11 Bundesrepublik Deutschland v Y and Z  ECR I-0000 at para 76, in evaluating whether there is a well-founded fear of persecution, the Member States’ authorities must discern whether the circumstances pose such a risk that in light of his situation the person in question may reasonably fear that acts of persecution will be inflicted upon him: para 72. In light of Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and Others  ECR I-1493 at para 90, the evaluation of the magnitude of the risk – which must always be conducted with vigilance and care – will turn on a specific assessment of the facts in conformity with the terms set out in article 4 of the directive (see Y and Z at para 77): para 73. In evaluating the degree of risk of actual acts of persecution in specific circumstances, nothing within article 4 mandates considering that an asylum seeker may avoid being persecuted by desisting from the practice concerned and thereby waiving the protection which the directive aims to provide by conferring refugee status. Rather, in circumstances where returning a homosexual asylum seeker to his country of origin exposes him to a genuine risk of persecution, such a person must be granted refugee status – the fact that in expressing his sexual orientation the risk can be avoided by exercising more restraint in comparison to a heterosexual is irrelevant: para 75.
In light of its overall analysis, the CJEU did not think that part (c) of the second question needed a reply. Yet the Court clarified that in determining which acts may be considered as amounting to persecution under the directive, it is not essential to differentiate between acts which interfere with the core areas of sexual orientation and the acts which do not impact “those purported core areas” (see X and Y at para 62): para 78.
In summary, the Court (Fourth Chamber) held that:
1. Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.
2. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
3. Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.