European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

Guidelines : transposition of the Asylum Qualification Directive

In 2011, the European Union adopted the recast Qualification Directive (2011/95/EU) setting out rules governing minimum standards on conditions under which international protection is granted as part of the Common European Asylum System (CEAS). The purpose of these guidelines, which update the previous version published by ILGA-Europe in 2005 after the adoption of the first Qualification Directive, is to identify the relevant parts of the Directive for applicants for international protection persecuted because of their being lesbian, gay, bisexual, trans or intersex. This publication will help national policy makers and NGOs to work towards a full implementation of EU law in this area.

In 2004, the European Union adopted a Directive setting out rules governing minimum standards on conditions under which refugee status is granted as part of the Common European Asylum System (CEAS). It applies to third country nationals (i.e. persons from outside the EU) who request asylum within a Member State of the EU. It covers the criteria for being awarded international protection, but also the rights of persons once they are recognised as refugees or benefi ciaries of subsidiary protection. Amongst those who apply for asylum, some are lesbian, gay, bisexual, trans or intersex (LGBTI). Some of them will be
fleeing persecution unrelated to their sexual orientation or gender identity, for example due to their involvement in political movements opposed to the government of their country of origin. In other cases, their sexual orientation or gender identity is the principal reason why they have experienced persecution or are at risk of persecution. The Directive, which had to be transposed by 10 October 2006, has been highly relevant to the processing of such claims within the EU. In 2009 the European Commission issued a proposal to recast the Directive. According to the Commission the aims of the proposal included addressing inconsistencies, achieving a higher level of harmonization and ensuring coherence with the
jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). 

Negotiations between the European Parliament and the Council led to the adoption of the recast Directive in December 2011. Certain States have special ‘opt-out’ arrangements for EU immigration legislation; in this case, Ireland and the UK decided not to opt in to the recast Directive. These two Member States continue to be bound by the provisions of the 2004 version of the Directive. Denmark is not bound by either version of the Directive. The purpose of these guidelines, which update the previous version published by ILGA-Europe in 2005, is to identify the relevant parts of the Directive for applicants for international protection persecuted because of their being lesbian, gay, bisexual, trans or intersex. In particular the guidelines highlight the changes brought by the 2011 amendments in order to enable national organisations to assess whether national legislation meets the Directive’s standards in this area, and to devise advocacy strategies for an adequate transposition if this is not the case.