Statement on pending preliminary rulings by CJEU regarding alleged persecution on the ground of sexual orientation
02/08/2012
Read ILGA-Europe's statement on three requests of preliminary rulings by the Court of Justice of the European Union (CJEU) on the interpretation of Directive 2004/83/EC in the case of alleged persecution on the ground of sexual orientation.
Cases references: C-199/12, C-200/12, C-201/12.
Granting refugee status as a consequence of persecution based on the sexual orientation of the applicants in their country of origin
The pending preliminary ruling before the European Union Court of Justice (CJEU) concerns three separate cases of gay asylum seekers from three different countries of origin: Senegal, Sierra Leone and Uganda. Referring to the cases, the Council of State of the Netherlands has asked the CJEU to clarify the interpretation of Articles 9 and 10 of the Qualification Directive 2004/83/EC. The Directive in question establishes minimum standards for all the Member States for the recognition of refugee status for asylum seekers within the meaning of Article 1 of the Geneva Convention.
The questions asked to the Court address the issues concerning the "discretion requirement" (the possibility for asylum authorities to expect applicants to conceal their sexual orientation after their return to their country of origin) and whether criminalisation of consensual same-sex sexual activity constitutes an act of persecution. To what extent, if any, can a person be expected to exercise restraint in expressing their sexual orientation? What activities are part of 'sexual orientation', and hence protected by the Directive? Does criminalisation of same-sex activity constitute an act of persecution as such, or only when the law is enforced, or only when enforcement is related to the specific case of the applicant?
In relation to the questions of interpretation of the Qualification Directive, ILGA-Europe wishes to provide explanation on the following issues:
• On the one hand, the "discretion requirement" cannot be accepted because it is a violation of the applicants' human rights, in particular of their right not to be subjected to discrimination, of their right to respect for private and family life, and of their freedom of expression of an "innate characteristic or a common background that cannot be changed, or […] a characteristic […] that is so fundamental to their identity or conscience that a person should not be forced to renounce it" in the sense of Article 10 (1) (d) of the Directive.
• On the other hand, criminalisation of same-sex sexual acts in the laws or regulations of the countries of origin are in themselves discriminatory and provide State authorities as well as non-State actors with the means to engage in severe human rights violations, while depriving the victims of judicial redress or any other form of protection. As a result, they should be considered to constitute an act of persecution in the sense of Article 9 of the Directive, even where there is no evidence of enforcement.
1. The "discretion requirement" is unacceptable
The "discretion requirement" refers to the expectation that lesbian, gay, bisexual or trans persons can or should be 'discreet', i.e. secretive about their sexual orientation or gender identity to avoid or diminish the risk of persecution in the country of origin.
Article 10 (1) (d) of the Qualification Directive, which defines the members of 'a particular social group' as the persons who share a characteristic that is so fundamental to identity that a person should not be forced to renounce it, also makes clear that sexual orientation can be regarded as determining the existence of a particular social group in the sense of the Geneva Convention. According to the Directive, this is the case where the circumstances in the country of origin are such that a group based on sexual orientation is perceived as being different by the surrounding society. The "discretion requirement" expects lesbian, gay, bisexual and trans people to conceal a characteristic that, according to the Directive, is so fundamental that they cannot, or cannot be expected to change it. As a result, applying the "discretion requirement" in cases of sexual orientation comes in contradiction to and as a violation of the article in question.
Moreover, persecution does not cease to be persecution because the persecuted person can eliminate or diminish the harm by avoiding action. Such restraint would not be expected from a person fleeing political or other persecution and should not be expected of a lesbian, gay, bisexual or trans person either, as it would actually amount to this person being deprived of various human rights recognised in international law (equality and non-discrimination, rights not to be subjected to arbitrary interference with privacy and family life, freedom of opinion and expression). The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity clearly states that "[b]eing compelled to forsake or conceal one's sexual orientation and gender identity, where this is instigated or condoned by the State, may amount to persecution."
The Advocate General Bot to the CJEU has recently taken a similar stand in a case regarding the right to exercise religious freedom without fear of persecution. According to the Advocate General, a serious infringement of the freedom of religion may constitute an 'act of persecution' where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom, runs a real risk of being deprived of his most fundamental rights. ILGA-Europe believes that the same reasoning should apply to reject the "discretion requirement" in the case of claims relating to sexual orientation and gender identity.
Core to this reasoning is the consideration that a person's sexual orientation or gender identity is fundamental to her/his identity, and cannot be confined to a mere sexual act, which would amount to overlooking everyday activities affected by sexual orientation or gender identity. In real life, a person concealing his or her sexual orientation would have to be – for a lifetime – careful of friendships s/he forms, the social circles and places where s/he moves in, as well as in all day-to-day contacts and deeds.
The Supreme Court of the United Kingdom supported the abandonment of the "discretion requirement" in its ruling on the cases of HJ (Iran) and HT (Cameroon) in 2010, stating that the effect of discretion undermines the rationale of the Geneva Convention. According to the Supreme Court, the question should not be if the applicant can be expected to live 'discreetly' but whether an act of persecution would occur if s/he were to live openly.
Hence, the "discretion requirement" amounts to the same submissive and compliant behavior, the same denial of a fundamental right, which the agent of persecution seeks to achieve.
2. Criminalisation of consensual same-sex sexual relations per se constitutes an act of persecution
Article 4 (3) of the Qualification Directive states that when making a decision on granting refugee status, all relevant facts relating to the country of origin, including laws and regulations, shall be taken into account. Article 9 (2) qualifies discriminatory legal and administrative measures as persecution. Criminalisation of consensual same-sex relations is inherently discriminatory, therefore laws which directly or indirectly criminalise such relations constitute an act of persecution per se in the sense of the Directive.
This persecutory nature of criminalisation is obvious in the cases where the enforcement of such legislation is attested and documented. ILGA-Europe considers that legislation criminalising consensual same-sex relations shall also be considered as an act of persecution, in the case where enforcement is not attested. Various reasons support those views.
Firstly, an existing law, even when it is not enforced by the State as an actor of persecution, contributes to an atmosphere of state-supported homophobia, a hostile climate stigmatising gays and/or lesbians, bisexual people and arguably trans people as well (LGBT). Such legislation also allows isolated State officials to use existing provisions to inflict severe harm to LGBT people, or to blackmail on a permanent basis. Since the possibility of prosecution continues to exist, LGBT people are indeed defenseless against homophobic violence, discrimination and extortion. In that respect, the UNHCR points out that law enforcement can also happen in an unofficial manner, which does not lead to recorded prosecutions, for instance through police inflicted violence or detentions.
Secondly, the existence of legislation criminalising consensual same-sex relations also enables non-state actors to persecute or harm LGBT people with impunity. The criminalised nature of such relations will indeed always prevent all State authorities to be actors of protection in the sense of Article 7 of the Directive, according to which "protection is generally provided when the actors [of protection] take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection". Similarly, criminalising legislation makes it close to impossible for non-State entities to become actors of protection in the sense of the same article, since offering protection to persecuted LGBT people would amount to protecting people who could be found guilty of criminal offences according to the legislation of the country.
Considering that Article 9 (2) of the Directive includes "legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner" and "denial of judicial redress resulting in a disproportionate or discriminatory punishment" in the forms taken by acts of persecution, ILGA-Europe is of the opinion that the criminalisation of consensual same-sex sexual relations constitutes an act of persecution per se towards LGB people, including in cases where the enforcement of such provisions is not attested.
3. Elements of country of origin information
The three cases in question in the preliminary rulings are cases of gay men coming respectively from Senegal, Sierra Leone and Uganda.
In all three countries, consensual male same-sex sexual activities are criminalised with varying punishments up to life time imprisonment. In practice, the level of enforcement varies from arrests (Senegal and Uganda) and prosecution (Senegal) to police harassment (all three countries) and to the absence of protection given to LGBT people harassed and/or persecuted by non-State actors (all three countries). International human rights organisations such as Amnesty International and Human Rights Watch report incidents of LGBT people facing violence, harassment, threats, unequal treatment by different actors as well as unfair trials in the three countries in question, and even torture in Senegal and Uganda.
It is clear that criminalisation of consensual same-sex relations, in all three cases pending before the Court, as well as in all other cases of LGBT asylum applicants originating from countries where a similar situation is documented, supports the hostile climate and, as the country of origin information on the relevant countries shows, contributes to the real risk of serious incidents of violence and discrimination amounting to persecution.
Annex 1: Questions asked to the CJEU:
1. Do aliens with a homosexual orientation form a particular social group as referred to in article 10, paragraph 1, opening words and (d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304; 'the Directive')?
2. If the first question is answered in the affirmative, which homosexual activities fall under the scope of the Directive and, if persons engaging in these activities are subject to acts of persecution and if the other requirements are met, can that lead to the granting of refugee status? This question comprises the following sub-questions.
• Can aliens with a homosexual orientation be expected to conceal their sexual orientation from others in order to avoid persecution?
• If the previous question is answered in the negative, can aliens with a homosexual orientation be expected to exercise restraint in expressing their sexual orientation in the country of origin in order to avoid persecution and, if so, to what extent? Can homosexuals be expected to exercise more restraint in this respect than heterosexuals?
• If, in this regard, a distinction can be made between activities that fall within the core area of a sexual orientation and those that do not, what is to be understood by the core area of a sexual orientation and how can it be established?
3. Do the mere criminalisation of homosexual activities and the associated threat of a prison sentence, which are discriminatory in nature, as stipulated [in the criminal legislations of [Senegal, Sierra Leona, Uganda], constitute an act of persecution as referred to in article 9, paragraph 1, opening words and (a) in conjunction with paragraph 2, opening words and (c) of the Directive? If not, in what circumstances would this be the case?
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