CJEU judgment in C-199/12, C 200/12 and C 201/12, X, Y and Z, 7 November 2013

Wednesday, November 13, 2013

(Directive 2004/83/EC – Minimum standards relating to the conditions for granting refugee status or subsidiary protection status – Article 10(1)(d) – Membership of a particular social group – Sexual orientation – Reason for persecution – Article 9(1) – Concept of ‘persecution’ – Well-founded fear of being persecuted on account of membership of a particular social group – Acts sufficiently serious to justify such a fear – Legislation criminalising homosexual acts – Article 4 – Individual assessment of the facts and circumstances)

Facts of the case

The joined case of X, Y and Z concerns three asylum Applicants in the Netherlands from Sierra Leone, Uganda and Senegal respectively. In each country of origin, homosexuality is a criminal offence punishable by a term of imprisonment. In none of the cases had the Applicant demonstrated that he has already been persecuted or threatened with persecution on account of his sexual orientation. The Dutch Raad van State referred questions for preliminary ruling.

Questions referred for a preliminary ruling

(1) Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d) [of the Directive]?
(2) If the first question is to be answered in the affirmative: which homosexual activities fall within the scope of the Directive and, in the case of acts of persecution in respect of those activities and if the other requirements are met, can that lead to the granting of refugee status? That question encompasses the following subquestions:
(a) Can foreign nationals with a homosexual orientation be expected to conceal their orientation from everyone in their [respective] country of origin in order to avoid persecution?
(b) If the previous question is to be answered in the negative, can foreign nationals with a homosexual orientation be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals?
(c) If, in that regard, a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined?
(3) Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, as set out in the Offences against the Person Act 1861 of Sierra Leone (Case C-199/12), the Penal Code Act 1950 of Uganda (Case C-200/12) or the Senegalese Penal Code (Case C-201/12) constitute an act of persecution within the meaning of Article 9(1)(a), read in conjunction with Article 9(2)(c) of the Directive? If not, under what circumstances would that be the case?’

Consideration of the questions referred

The CJEU answered the questions in a different order, ruling that:

(1) ‘The existence of criminal laws, … which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group’ [48].

Article 10(1)(d) of the Qualification Directive (“QD”) says a group will be a ‘particular social group’, membership of which may give rise to a genuine fear of persecution, if two conditions are met: (a) members share a characteristic or belief that is fundamental to their identity or conscience; (b) members have a ‘distinct identity’ because they are ‘perceived as being different by the surrounding society’. As to (a), the second subparagraph of Article 10(1)(d) of the QD states that depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation’. On this basis, the Court ruled that ‘a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it’ [46]. As to (b), the court saw the condition as met by virtue of ‘the existence of criminal laws … which specifically target homosexuals’ [48].

(2) Although ‘the criminalisation of homosexual acts per se does not constitute an act of persecution’, imprisonment that is ‘actually applied’ [56] must constitute an act of persecution.

Article 9(1)(a) of the QD states that the relevant acts must be ‘sufficiently serious’ by their nature or repetition as to constitute a ‘severe violation of basic human rights’. The Court infers from this that ‘not all violations of fundamental rights suffered by a homosexual asylum seeker will necessarily reach that level of seriousness’ [53]. Therefore, ‘the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the Applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution’ [55]. Instead, the Court says it is for ‘the national authorities to undertake … an examination of all the relevant facts concerning the country of origin including its laws and regulations … in particular [whether] … the term of imprisonment provided for by such legislation is applied in practice’ [58-59].

(3) Applicants for asylum cannot be reasonably expected to ‘conceal their homosexuality in their country of origin, or to exercise reserve in the expression of his sexual orientation’ [71].

Considering the issue of concealment, the Court reasons by analogy with Y and Z Joined Cases C-71/11 and C-99/11, where the Court ruled that the possibility open to the Applicants of avoiding the risk of persecution by abstaining from religious practice is not to be taken into account in determining the risk of persecution. The same applies analogously to cases of sexual orientation persecution. The court states that ‘requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it’ [70]. In addition, ‘the fact that [the Applicant] could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account’ [75].

Read the full judgment and press release of the CJEU.

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Assessment of facts and circumstances
Membership of a particular social group
Persecution (acts of)
Persecution Grounds/Reasons
Sexual orientation