Belgium – X. v. Commissioner General for Refugees and Stateless Persons, No. 220.190, 24th April 2019

Country of Decision:
Country of Applicant:
Date of Decision:
24-04-2019
Citation:
Council of Alien Law Litigation, X v. Commissioner General for Refugees and Stateless Persons, No. 220 190, 24th April 2019
Court Name:
Council of Alien Law Litigation
Relevant Legislative Provisions:
National / Other Legislative Provisions:
December 15th 1980 Law no. BEL-1980-L-35769 on Access to territory
residence
Establishment and Departure of Aliens (« Loi du 15 décembre 1980 sur l’accès au territoire
le séjour
l’établissement et l’éloignement des étrangers »)
Articles 48/3 §2 and §4
Article 48/4
Article 48/5 §2
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Headnote: 

LGBT individuals who have left Morocco can be granted refugee status as the socially and legally hostile environment towards LGBT individuals in this country can justify fear of persecution based on their membership to a particular group. A cautious assessment of the consequences of a return to the country of origin and an extensive benefit of the doubt are advised in the review of asylum applications of Moroccan nationals identifying as LGBT.

Facts: 

The applicant, a Moroccan national, arrived in Belgium on October 26th 2015. On May 18th 2016, he submitted an asylum application before the Aliens Office (AO) on the basis of his sexual orientation and the fear of persecution it led to, given the hostile attitude towards LGBT individuals in Morocco. The AO rejected the applicant’s claim to asylum, on the basis that he had insufficiently supported his sexual orientation claim, as he had merely provided vague, impersonal and stereotypical elements. Because sexual orientation would be the sole reason for granting him refugee status under the Geneva Convention, the OA rejected the application and did not consider the possibility of subsidiary protection within the meaning of Article 48/4 of the 15 December 1980 Belgian law on Aliens. The applicant appealed against that decision.

Decision & Reasoning: 

The Council first started by examining the credibility of the applicant's claims regarding his sexual orietnation. It noted that the discovery of one’s sexuality is a complex process and is difficult to explain. The claimant had been consistent in the account of his developing awareness and the realisation of the difference in attitudes compared to other boys of his age. In view of the applicant’s declarations, and in light of the diverse elements put forward by him as part of the asylum application, the Council stated that the claimant – who, the Council noted, was ‘still young’ and whose sexual identity was ‘still under construction’ – had provided sufficient proof of his sexual orientation.

Looking into whether the applicant's fear was well-founded, the Council called for caution in reviewing applications for international protection of LGBT applicants from Morocco, advising bodies to give the benefit of the doubt extensively in such cases and to conside rpotential consequences of a return. The Council aligned itself with the claimant’s observation that LGBT identities were not accepted in Morocco, and was seen as intolerable both within the society and the family. In this line, it further recalled that the claimant had been disinherited, was physically assaulted by his father and uncle, and had received death threats from the latter while in Morocco.

The Council concluded that the ill-treatment to which the applicant had been subjected in Morocco constituted acts of mental or physical violence within the meaning of article 48/3 §2 of the December 15th 1980 Law, as a result of the individual’s belonging to a social group as intented in Article 1, Section A §2 of the 1951 Geneva Convention. Consequently, the applicant could rightfully be recognised as a refugee.

Outcome: 

Appeal granted.

Observations/Comments: 

The Council’s decision raises awareness about a delicate, yet fundamental aspect of asylum claims : sexual orientation. In having to establish his homosexuality, the claimant finds himself under the responsibility to ‘do what scientists have never been able to do’, as Gartner notes in «(In)credibly Queer : Sexuality-based Asylum in the European Union» (Humanity in Action Press, 2015). In such a context, many have called for  greater attention paid towards the facts underlying the exiel as well as the potential ill-treatment suffered by the claimant in his country of origin. 

This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.

Other sources cited: 

« Etre homosexuel au Maroc », www.ossin.org

« Homosexualité au Maroc : on me disait que j’avais une maladie contagieuse », Le Monde 12 avril 2016

« Fés : Un homme présenté par Goud.ma comme homosexuel, lynché par la foule », Al Huffington Post, 30 Juin 2015

« Maroc : Deux homosexuels violemment agressés puis emprisonnés », Le NouvelObs

« Maroc : homosexuels, des victimes jugées coupables », http://information.tv5monde.com

« Agression sauvage d’un travesti à Meknès (video), www.bladi.net

« ‘Faut-il brûler les homos’, demande un habdo marocain », www.7sur7.be

« Maroc : le droit à la vie privée ne s’applique pas aux homosexuels », http://fr.blastingnews.com

« Benkirane sur l’homosexualité : ‘Les gens qui souffrent de cette tare devrait se cacher’ », www.huffpostmaghreb.com