Last year, the Court of Justice of the European Union (CJEU) found that “[h]omosexual applicants for asylum can constitute a particular social group who may be persecuted on account of their sexual orientation”. On December 2, this decision was followed up by a preliminary ruling on the assessment of facts and circumstances concerning the declared sexual orientation of an applicant for asylum. In its judgment, the Court held that asylum seekers should not have to undergo test to prove their claims. Inter alia, the Court prohibited national authorities to carry out “detailed questioning as to the sexual practices of an applicant for asylum”.
In autumn last year, the CJEU ruled that asylum be granted to homosexual individuals subject to criminal prosecution in their home countries. In a preliminary ruling procedure the Supreme Court of the Netherlands had asked the Court on the interpretation of EU law on that matter. Council Directive 2004/83/EC “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” refers to the Geneva Convention definition of a refugee, an individual with a well-founded fear of persecution on the grounds of race, religion, citizenship, political opinion or membership of a particular social group. Under Chapter III “Qualification for being a refugee” it states reasons for persecutions. Homosexuality not being explicitly mentioned, the Court assesses to which extent homosexuals are to be considered a particular social group. It found, in no uncertain terms, that homosexuals can be considered such. Thereby, “[t]he ECJ refutes a frequent pattern of argumentation in German jurisdiction and the decision-making practice of the Federal Office for Migration and Refugees (BAMF) on the grounds of which homosexual individuals’ asylum applications were rejected.”
On December 2 2014, the CJEU rendered its opinion on a question regarding the assessment of facts and circumstances concerning declared sexual orientation of an applicant for asylum. Chapter II of the Council Directive 2004/83/EC “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” regulates the assessment of applications for international protection. Article 4 lays down rules concerning the assessment of facts and circumstances. According to the Court in the case A, B and C v Staatssecretaris van Veiligheid en Justitie, the assessment of declared sexual orientation of an applicant for asylum had to be consistent with EU law read in the light of fundamental human rights, explicitly human dignity (EU Charter of Fundamental Rights) and private and family life (EUCFR, Article 7). The directive, read in light of Article 7 EUCFR specifically prohibits national authorities “from carrying out detailed questioning as to the sexual practices of an applicant for asylum.” A “submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts” as evidence in the context of the assessment of the case through the competent national authorities is incompatible with the directive read in the light of Article 1 EUCFR, according to which “human dignity is inviolable. It must be respected and protected.“ Furthermore, the Court held that according to the directive the fact that an asylum seeker had not stated homosexuality as a ground for persecution on the first occasion did not preclude the credibility of her or his statement. The “assessment by those authorities founded on questions based only on stereotyped notions concerning homosexuals” was also found to be inconsistent with the directive. The judgment has direct effect in the EU.