On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting
Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In
X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:
the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.
... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.
The Court also issued a
press release on the decision. So did
ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The
Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.
