On November 7th of 2013, the European Court of Justice declared that being gay or lesbian is reason to get asylum in the European Union. The Directive on asylum qualifications describes the rules to get asylum in the European Union Member States. It also covers eligibility criteria to seek refugee in the EU for those who belong to “particular social groups”.
Based on requests from three gay men from Senegal, Sierra Leone and Uganda, the Dutch State Council raised question at the Court if homosexual people are also covered by the term “particular social group” that is used at the Directive. The Court of Justice answered that indeed, people of a specific sexual orientation targeted by laws criminalising their conduct or identity could constitute such a group.
The Court continued on explaining that prison sentences prescribed by law only counted as “persecution” when they were enforced. This is the case in most of the 76 countries criminalising homosexuality, but not all. It also affirmed that EU Member States could not reasonably expect gay, lesbian and bisexual asylum-seekers to hide their sexual orientation in the countries they fled.
IFSW welcomes this decision of the European Court of Justice as a major step for those being persecuted because of their sexual identity.