The Court of Justice of the European Union has ruled that gay people who face the real threat of being jailed have the grounds to request asylum in the EU.
The court ruled on a request by the Netherlands to decide if under the terms of the Geneva Convention foreigners who are homosexuals may be regarded as forming a “particular social group”.
The Netherlands also asked the court if the criminalisation of homosexuality amounts to persecution.
This related to a case in which three individuals from Sierra Leone, Uganda and Senegal have applied for asylum in the Netherlands, claiming that they have a well-founded fear of being persecuted in their countries of origin because of their sexual orientation.
Homosexual acts are a criminal offence in those three countries and may lead to serious punishment; from heavy fines to life imprisonment in certain cases.
The court said the criminalisation of homosexuality resulting in imprisonment was in fact persecution, as long as the laws are actually applied. In other words, “the mere existence of legislation criminalising homosexual acts” is not necessarily sufficient grounds for granting asylum.
The ruling seems to address the fact that in some countries in which homosexuality is illegal, the law is rarely if ever used against LGBT citizens.
Importantly, the court also ruled that a “person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it”.
It stated that expecting people to simply conceal their homosexuality to avoid being persecuted in their home countries is not reasonable.
“Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution”.
Finally, the court said that it is up to each EU member country to assess the seriousness of the law in applicants’ countries and how these laws are applied.