LUXEMBOURG-In a landmark decision, the European Court of Justice (ECJ) ruled recently that homosexual African refugees from Sierra Leone, Uganda, and Senegal have grounds for asylum in E.U. member countries if they fear that their basic human rights will be violated in their home country. The ruling came as a response to the Netherlands asking for advice on three citizens from those countries who were seeking asylum. The Dutch Council of State asked the ECJ to determine whether homosexuals constituted a “particular social group” and whether the criminalization and imprisonment of homosexuals is equivalent to persecution. In response, the ECJ responded that sexual orientation is indeed a “characteristic fundamental to a person’s identity.” Therefore, under international law, homosexuals may claim refugee status if their human rights are being violated.
The ruling by the ECJ will pertain to all E.U. member countries. However, the ruling applies only in cases where people face actual imprisonment for being gay in their home country. It will be the responsibility of the national authorities–that is, the authorities in the country where a person is seeking asylum–to determine “whether, in the applicant’s country of origins, the term of imprisonment…is applied in practice.” The mere criminalization of homosexuality does not constitute grounds in and of itself for granting asylum.
The Dutch Supreme Court also demanded of the ECJ a ruling as to what the limits are for the “method of assessing the credibility of a declared sexual orientation.” That is, how should authorities set about the delicate task of determining the validity of a person’s claim of being gay? It is not expected that the ECJ will rule on this matter before the end of the year.
This ruling is of particularly importance as it comes in the wake of a June report by Amnesty International that finds that homophobic attacks are escalating in sub-Saharan Africa. Indeed, acts of a homosexual nature are outlawed in many African countries (including several countries that are key allies to the U.S.) Many of these countries, however, rarely enforce these laws. It will therefore be up to the authorities to determine whether or not a person seeking asylum faced an actual threat of imprisonment in their home country.
– Rebecca Beyer