The Court of Justice of the European Union (CJEU) declined in its ruling in X, Y and Z that the criminalisation of consensual same-sex activity, as such, constitutes ‘persecution’ for the purposes of EU asylum law.
In its judgment, the CJEU ruled that asylum seekers who are escaping their home countries because of a fear of persecution based on their sexual orientation cannot be expected to “conceal [their] homosexuality in [their] country of origin or exercise restraint in expressing it”. The CJEU considered that the existence of criminal laws, which specifically target homosexuals, supports the finding that they must be regarded as forming a “particular social group”. Where criminal laws that sanction homosexuality by means of a term of imprisonment are actually applied in the country of origin amounts to an act of persecution.
X, Y and Z are three asylum applicants in the Netherlands from Sierra Leone, Uganda and Senegal, who in their respective country of origin faced a criminal offence punishable by a term of imprisonment due to being homosexual.
This judgment has been received with mixed feelings of hope and criticism. Evelyne Paradis, Executive Director of ILGA-Europe, welcomes the “judgment which clarifies that LGBTI asylum seekers from many countries around the world clearly belong to a particular social group which is united by violence, degrading treatment and fear of persecution because of their sexual orientation and are entitled to claim asylum in the EU”. The Human Dignity Trust, welcomed the judgment hoping that “[i]t makes some good headway” for future LGBTI asylum cases; however, it expressed that the “Court missed an important opportunity”. Amnesty International added that the CJEU’s ruling, neglecting to recognise mere criminalisation of homosexuality as a ground for persecution, was hence “out of step with international human rights and refugee law”. This criticism was complemented by a statement made by the International Commission of Jurists that “laws, even when they have not recently been applied in practice are capable of giving rise to a well-founded fear of persecution and […and those affected] should be recognised as refugees when they apply for asylum”.
ORAM reported that 78 countries in the world criminalise same sex relations and in many more LGBTI people face homophobic behaviour, causing them to fear for their lives and safety. Recently a new Russian law was introduced, which bans the spreading of gay ‘propaganda’ causing LGBTI activists around the world to call for a boycott of the Winter Olympics Russia to be host in Sochi in February 2014.