EU Court of Justice: LGBTI people are eligible group for claiming asylum in EU and they cannot be requested to conceal their sexual orientation

08/11/2013

On 7 November 2013, the Court of Justice of the European Union (CJEU) delivered a judgment in the case X, Y, Z v Minister voor Immigratie en Asiel related to claiming asylum in the EU on the basis of fear for persecution because of individuals’ sexual orientation in countries where homosexuality is criminalised.

The Court clearly stated that asylum seekers who are escaping their home countries because of fear for 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 Court stressed that sexual orientation is a fundamental characteristic of person’s identity and it cannot be required to renounce it.

The Court also considered that criminalisation of people engaging in same-sex acts supports the finding that these people are members of a particular social group potentially subjected to persecution. It confirmed that the actual application of such criminal laws by means of a term of imprisonment is an act of persecution as such.

The Court made this judgment as a result of a request from the Netherlands to clarify existing EU law dealing with asylum issues and which establishes minimum standards for EU countries when granting refugee status.

Evelyne Paradis, Executive Director of ILGA-Europe, said:

“We welcome today’s 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.

We particular welcome the Court’s rejection of completely unreasonable and degrading requirements noticed in some countries when LGBTI asylum seekers were suggested to ‘tone down’ their homosexuality, be ‘discreet’ and therefore be ‘safe’ back in their home countries. We hope this will put an end to the use by national authorities of the so-called “discretion argument” to return LGBTI asylum seekers to their countries of origin.”

Press release of the Court of Justice of the European Union

Judgment of the Court of Justice of the European Union

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