Three gay men from African countries who sought asylum in the Netherlands have won their case at the European Court of Justice. The decision could set a precedent - and was of course welcomed by pro-refugee groups.
Homosexual refugees persecuted for their gender preference could more easily gain asylum after a ruling by Europe's high court on Thursday (07.11.2013). The Luxembourg-based European Court of Justice (ECJ) ruled that gay refugees from African countries, where homosexuality is legally punished, form a "particular social group" under the Refugee Convention.
Asylum agencies and courts in European states should in every case check that homosexual asylum-seekers are subjected to state persecution and discrimination, according to the ECJ judgment. "The fact that punishment is threatened for homosexual acts is not enough. Actual imprisonment must be imposed and carried out in the refugee's country of origin," said presiding judge Alexandra Prechal upon release of the decision.
'X, Y and Z' vs. the Netherlands immigration ministry
According to Amnesty International, homosexuality is officially a crime in 38 sub-Saharan African countries
Three gay asylum-seekers from Uganda, Sierra Leone and Senegal - named X, Y and Z to protect their identities - had applied for asylum in the Netherlands because they felt persecuted on the basis of their sexual orientation. Dutch authorities denied the applications in 2011 and the three appealed.
The Netherlands high court turned to the ECJ for clarification on European regulations relating to the issue. The cases now return to the Netherlands, where the authorities must apply the standards set out in the ECJ ruling.
Michael Diedring, head of the European Council on Refugees and Exiles, welcomed the decision. It's a positive step, he said, that now European Union states must look more deeply into the cases of homosexual refugees.
"Perhaps we had hoped that we would have a clearer groundbreaking case," Diedring told DW. "But this is definitely moving in the right direction, and we are very encouraged by that."
The ruling gives hope to people in the 71 countries around the world where homosexuality is still criminalized.
No more denial
The ECJ very clearly rejected one specific argument made by the Dutch immigration agency. "Asylum authorities cannot fairly expect that an asylum-seeker should hide his homosexuality in his country of origin in order to avoid persecution," Prechal said. "Particular restraint" in lifestyle can also not be expected, she added - in short, homosexuals should not have to pretend that they are not gay.
Dutch immigration authorities had said that the three applicants could have behaved in a restrained manner in their home countries, in order to avoid punishment. Julian Pepe Onziema, director of Sexual Minorities Uganda, said that such restraint violated human rights.
"No gay Ugandan goes around kissing or making out on the streets deliberately exposing themselves - what we are persecuted for is what is done in the privacy of our bedrooms," he told the Deutsche Presseagentur news agency.
Diedring said the ruling means that asylum applicants will no longer have to fear that they will be sent back with the argument that they could pretend not to be gay. "The biggest change perhaps is that someone does not feel that they have to hide their gender identity," he said.
Scope of ruling
The ECJ press office noted that although the decision provides a binding interpretation of EU law, member countries will continue to adjudicate such disputes on a case-by-case basis.
Dutch Foreign Minister Frans Timmermans on Tuesday sent a letter to parliament saying that homosexuality could play a larger role in approval of asylum applications from Russia. He criticized Russian law criminalizing so-called homosexual propaganda. "The law leads to stigmatization and discrimination and contributes to an atmosphere of homophobia," he wrote.
The International Lesbian and Gay Association in its annual report indicated that Mauritania, Nigeria, Sudan, Somalia, Saudi Arabia and Iran proscribe the death penalty for homosexuality. In wide swaths of Africa and the Muslim world, also in Asia, the law includes imprisonment as a possible punishment for homosexuality.