EU Court: No automatic refugee status for asylum seekers with unusual “sexual orientation”

CJEU-logoThe Court of Justice of the EU has issued an important judgment in the case of A, B, and C, v. Staatssecretaris van Veiligheid en Justitie, reconfirming the right of Member States’ authorities to verify claims by asylum seekers that they were facing persecution on grounds of their “sexual orientation” in their countries of origin.

The background of the case is that following the de-criminalization of sodomy laws in the EU the gay lobby has pushed for, and obtained, the recognition that possible persecution on the grounds of a person’s “sexual orientation” may constitute a reason for being granted refugee status in the EU.

In practice, however, this provision has proved very difficult to implement. On the one hand, most countries in the world outside Europe and North America have anti-sodomy laws, which for gay-“rights” advocates is sufficient reason to claim that people face persecution “because of their sexual orientation”. On the other hand, how can an immigration authority reliably find out whether someone is really facing persecution, and thus entitled to refugee status? This would in fact require two different points to be verified: firstly, whether the applicant’s claim to be “homosexual” (or otherwise sexually disoriented) is genuine, or whether it is simply made for the purpose of granting asylum status, and secondly, whether such persons are really facing persecution on the sole ground of their unusual “sexual orientation”.

Even in a traditionally “gay-friendly” country like the Netherlands immigration authorities are increasingly wary of spurious asylum seekers who claim to be homosexual. Three such cases were at the origin of the CJEU judgment that was issued yesterday. In one of the cases, the applicant came forward with his claim to be homosexual only after a first application for refugee status he had based on other grounds had been turned down. In another case, an applicant claimed to be homosexual but refused to answer any further questions regarding details of his sex life – his claim thus remained unsubstantiated. In the third case, an applicant offered to provide evidence for his “sexual orientation” by performing sodomy in front of a video camera or, alternatively, in the presence of the public officials investigating his file. The public authority turned this proposal down and dismissed his application for refugee status as unsubstantiated.

A “Gay Pride” event in Uganda. Sodomy is prohibited in many African countries, but having a misguided “sexual orientation” is not.

The three applicants appealed against those judgments, submitting “in particular that because it is impossible to determine objectively the sexual orientation of applicants for asylum, the authorities … should base their decisions solely on the assertions made by those applicants”.

This would in practice mean that anyone coming from a country in which sodomy is punishable could get refugee status in the EU simply by claiming to be homosexual, and without having to substantiate such claims. One can easily guess what this, if accepted, would mean for the EU’s immigration policy…

No wonder, therefore, that the Dutch supreme judiciary instance, the “Raad van State”, rejected this argument. It nevertheless looked for guidance in the application of relevant EU laws, asking the CJEU for a preliminary ruling to clarify the limits imposed by Directive 2004/83 and the EU Fundamental Rights Charter on the methods used to assess the credibility of a declared “sexual orientation”.

This is a very difficult question – and the CJEU, it must be said, fails to provide an exhaustive answer. Nevertheless, it does provide some important clarifications:

  • First and foremost, it emphasises that “contrary to the submissions made by the applicants in the main proceedings, according to which the competent authorities examining an application for asylum based on a fear of persecution on grounds of the sexual orientation of the applicant for asylum must hold the declared sexual orientation to be an established fact on the basis solely of the declarations of the applicant, those declarations constitute, having regard to the particular context in which the applications for asylum are made, merely the starting point in the process of assessment of the facts and circumstances…” The mere claim of “being homosexual” is thus not sufficient for being granted refugee status.
  • Second, it clarifies that “it is the applicant’s duty to submit … all elements needed to substantiate the application”, whereas it is the public authority’s duty “to cooperate with the applicant in assessing those elements”. This assessment must be made on an individual basis (i.e., it is not sufficient to base the decision on a general affirmation that in a given country homosexuals face, or do not face, persecution.)
  • Third, it affirms that “questions based on stereotyped notions (associated with homosexuals) may be a useful element … for the purposes of the assessment”, an assessment based solely on such stereotyped notions is not sufficient. The applicant’s individual situation and personal circumstances must also be taken into account.
  • Fourth, interviews carried out to establish the facts of the individual case must not include questions concerning details of the sexual practices of the applicant.
  • Fifth, the authority should neither demand nor even accept any “evidence” in the form of homosexual acts openly performed, or of video films of such acts, given that, besides being contrary to human dignity, such evidence does not necessarily have probative value.

The fifth point deserves particular attention as it highlights the Court’s awareness of possible abuses: it should not be underestimated which degrees of self-humiliation people may be willing to inflict on themselves in order to obtain refugee status. But this willingness to abuse oneself does not constitute proof of any particular “sexual orientation” – it only shows that the applicants wants to stay in Europe at any cost.

All this, however, does not really answer the question exactly how public authorities may determine a person’s “sexual orientation”. Perhaps the question is unanswerable. If, as the submission made by the three applicants suggests (and it should be noted that the Court has not provided any argument to the contrary!), the notion of “sexual orientation” is merely subjective, then it cannot be a valid ground for asylum.

The real question is whether an applicant faces an actual risk of persecution. However, there is not a single country in the world where the law prohibits a particular “sexual orientation”. What is prohibited in many countries of the world is sodomy, i.e. the sexual act between persons of the same sex. People are thus not persecuted for their “orientation” or their sentiments, but for their acts.

If one says that a country prohibiting sodomy is persecuting homosexual persons “because of their sexual orientation”, one might equally say the same thing about a country with criminal laws against paedophilia, child porn, incest, or rape. But in each of these cases, we assume that people, even if strongly compelled to engage in such acts by their respective “orientation”, can be asked to keep themselves under control. This is precisely what countries with laws against sodomy expect homosexuals to do.

It can nevertheless be a valid ground for asylum if, in a given country, legal or other sanctions against sodomy are disproportionate. Maybe the best approach therefore would be to determine whether, because of an act of sodomy committed in the country of origin, an applicant is facing a concrete risk of prosecution and, if so, how severe that risk really is.

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