Gay people who are criminalized in their own countries because of their sexual orientation can be granted refugee status in the European Union.
This is according to the conclusions of the Advocate General of the European Court of Justice, Eleanor Sharpston, in the case of three citizens from Sierra Leone, Uganda and Senegal. Each country metes out severe punishment for homosexuality, including life imprisonment.
Under Directive 2004/83/EC, which refers to the provisions of the Geneva Convention, a citizen of a third country may apply for refugee status if they have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, and if they are outside their country of nationality and cannot or, for fear of persecution, do not want to seek that country’s protection.
In the case in question, the Council of State of the Netherlands, where the three had applied, asked the Court whether gay citizens constitute a “particular social group”. The judge’s response was affirmative. In her view, “the wording of the Directive shows that the EU legislature has indicated that people who share a characteristic of sexual orientation do count as being members of a particular social group.”
Eleanor Sharpston clarified that “the criminalization of homosexual activity does not in itself constitute an act of persecution within the meaning of the Directive.” It is up to the relevant national authorities to assess whether it is probable that a particular asylum applicant has been subjected to sufficiently serious measures, in terms of their nature or frequency, to constitute a violation of human rights. It is not enough that homosexuality is considered a crime in the country of origin: there must also be evidence of persecution.
The case sets a precedent for asylum seekers in Europe who cite sexual harassment as their main motive for seeking asylum. The 2012 report Fleeing Homophobia estimated there to be about 10,000 refugees escaping persecution because of their sexuality.
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