Amnesty International and the International Commission of Jurists Joint Observations on sexual orientation and the Qualification Directive

Friday, October 18, 2013

The two NGOs have made observations to the CJEU concerning case X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C‑199/12, C‑200/12 and C‑201/12), referred by the Raad van State (Council of State) of the Netherlands, following the Opinion of Advocate General (AG) Sharpston on 11 July 2013.  The case involves the asylum applications of three male nationals of Sierra Leone, Uganda and Senegal (X, Y and Z). Each maintains that he has a well-founded fear of persecution in his country of origin based on his undisputed same-sex sexual orientation. Sex between men is criminalised in each of their home countries.

The questions referred are:
1) “Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d)” of the Qualification Directive?
2) “Which homosexual activities fall within the scope of the Directive”; “how should national authorities assess what constitutes persecution in this context” and “whether applicants for refugee status should be expected to conceal, or exercise restraint in expressing, their sexual orientation in their country of origin” in order to avoid persecution?
3) Do the criminalisation of same-sex sexual activity and the possibility of imprisonment upon conviction constitute persecution within the meaning of the Qualification Directive?

The two NGOs agree with the AG's Opinion on questions 1) and 2), namely that asylum applicants “who have a homosexual orientation may, depending on the circumstances in their country of origin, form a particular social group within the meaning of” relevant EU refugee law provisions. The AG also did not consider “that an applicant for refugee status should be expected to conceal his sexual orientation in order to avoid persecution in his country of origin”. However, the NGOs disagree with the AG concerning question 3), namely that “the criminalisation of homosexual acts does not per se constitute an act of persecution for the purposes of” relevant EU refugee law provisions.

Read the NGOs' Joint Observations, the Reference for Preliminary Ruling, and the AG's Opinion.


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