C-199/12, C-200/12, C-201/12 – X, Y, Z v Minister voor Immigratie en Asiel: A Missed Opportunity or a New Dawn?

 The Court of Justice of the European Union (‘the Court’) in the landmark decision of X, Y and Z v Minister voor Immigratie en Asiel, has provided a template based on which the Member States can address the claims of gay asylum seekers.[1]  The Court has ensured that the floodgates are not opened to enable gay and lesbian[2] applicants from the 78 countries in the world, to arrive through the portcullis of Fortress Europe, seeking, and being granted sanctuary, solely on the basis of the existence of laws which criminalise consensual same-sex conduct in their countries of origin, even when they are not enforced.

The Fleeing Homophobia report estimated in September 2011 that approximately 10,000 gay or lesbian asylum seekers seek sanctuary in Europe every year.[3]  The following year, the Dutch authorities, ironically the first country in the world to recognise in 1981[4] the protection of gay men as a Particular Social Group under the 1951 Refugee Convention,[5] posed three questions to be addressed by the Court, through the prism of the 2004 Qualification Directive,[6] with respect to the asylum claims of 3 gay men from Senegal, Sierra Leone and Uganda:[7] 

‘(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?’

All three questions primarily arose from the interpretation of the 2004 Qualification Directive. Nevertheless, the Court drew on both the EU Charter, and the 1950 European Convention on Human Rights and Fundamental Freedoms, to enable the construction of a prism, through which these questions could be answered.

Question One:  – Under Directive 2004/83/EC, Are Gay Applicants Considered to be Members of a Particular Social Group Where Criminal Laws Targeting Homosexuals Exist? – Yes

Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 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 must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.[8]

In addressing the issue on membership of a Particular Social Group (‘PSG’)(paras. 41 to 49), the Court reaffirmed the Directive’s two limb approach, firstly, identification of the shared characteristic, and secondly, the recognition of that identity, “it is perceived as being different by the surrounding society”.[9]  Ironically, in a case which centres on the application of mere criminalisation and the definition of persecution, the Court ruled that the existence of the legislation was by itself an indicator of PSG membership for ‘homosexual’ claims.  The limitations of this group identity is directly linked to the prohibition of homosexual acts, which are considered criminal by the respective Member States, as proscribed in Article 10 (1) (d)[10], read in line with Article 2 (c) of the Directive.[11] Whilst this author is not condoning criminal acts, to be so focussed on conduct, rather than expression of a fundamental aspect of identity, the Court ignored the protection needs of children who identify as gay or lesbian.  The judgment can be criticized for extending the scope of analysis to Article 10 (1) (d) and the limitation of scope, but in effect it reveals the failure of the Directive and the European Union to adequately address the issue of gay and lesbian children.

Having held that there are no limits to the membership of a group based on sexual orientation based on behaviour, or identity (para. 68), the Court then focuses on ‘prohibited homosexual acts’(para. 76), excluded by Article 10 (1) (d).  Those acts prohibited by the criminal law of the Member State, focusing on ‘homosexual acts’ made it clear that this provision in Article 10 (1) (d) was not drafted with respect to the protection needs of children, who are subject to abuse by paedophiles, where paedophilia is not a sexual identity, or orientation.  This raises the question of what protection the Directive provides for gay and lesbian children.

The age of consent, usually within the EU to mean the same age for same-sex or different-sex sexual conduct, is the line which States draw with respect to criminality, and an ability under law, to freely consent to sex.  This line does not allude to when an individual identifies, or is identified as not being ‘straight enough’, by the prospective persecutor.  The age of consent, consistent with a birthday, for example sixteen in the United Kingdom, is additionally not a date when a teenager wakes up and suddenly becomes aware of their sexual, or gender identity.  Engagement in ‘sexual acts’, prohibited or not, is not the determinative factor in the identification of an individual’s difference by that individual, or by the potential persecutor, and therefore this lack of recognition of the rights of gay and lesbian minors, which is also excluded by the prohibition on ‘homosexual acts’, is of a fundamental importance to this exceptionally vulnerable group, based both on age and sexual or gender identity.  Even though the Court was not asked specifically about this point, the Court had the opportunity to clarify whether gay or lesbian teenagers, under the age of consent, are excluded from PSG Convention reason protection, as this provision alludes to.  This is a further missed opportunity, to this vulnerable, and mainly invisible class of applicants.

Question Three – Does Criminalisation Without Enforcement Amount to Persecution?- No

Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

The Court addresses the third question, prior to replying to the second (paras. 50 to 60). The Court, when addressing the issue of whether mere (unenforced) criminalisation amounts to persecution, could have not only addressed the definition of persecution in Article 9 (2) (c) (‘prosecution or punishment, which is disproportionate or discriminatory’), but additionally the definition in Article 9 (2) (b) (‘legal, administrative, police and/or judicial measure which are in themselves discriminatory, or which are implemented in a discriminatory manner’).[12]

The Court decided in these proceedings to only  address the question it was asked, and found, unsurprisingly, that when addressing the Article 9(2) (c) definition, purely on the basis of construction, the terms ‘prosecution or punishment’ is not prefixed with ‘threat of’, and therefore requires existence of actual application of ‘prosecution or punishment’.  In this author’s opinion, Article 9 (2) (b) does not require application, but addresses the existence of such measures. However, this point is not analysed by the Court.  The clear problem with the requirement of imprisonment, as is found by the Court(paras 59 and 60), is that the narrative of past and future persecution in many countries such as Zimbabwe and Uzbekistan,[13] is that in these and many other countries the law enforcement authorities use the criminal law to extort, blackmail, detain and torture, without recourse of due process of law which would require a trial, conviction and sentencing, in accordance with the national law of the country of origin.  Examples of due process are few (for example Iran).  The Court also ignores the ‘climate of fear and impunity for non-state agent harm due to the existence of such laws, hence the persecutory nature per se, outlined by the UNHCR in their October 2012 International Protection Guidelines on Sexual Orientation claims.[14]

As the UK’s Human Dignity Trust outlines in their press release,[15] such measures are not ‘benign’ and the Court ignores the psychological and sociological impact of such laws.  The Court finds pursuant to Article 4 (3) of the Directive,[16] that each Member State will need to exercise a fact-finding exercise on whether such laws are applied.  Jurisprudentially, the analysis is linked through the prism of private life rights, pursuant to Article 8 of the ECHR and Article 7 of the EU Charter,[17] which protects the right to the expression of sexual identity in the private and public sphere, subject to a State’s justification within a margin of appreciation.  The Court further examined the right to non-discrimination (on grounds of sex or ‘sexual orientation’ respectively), provided for by Article 14 of the ECHR and Article 21 (1) of the EU Charter, noting that derogations to both categories of rights can exist (para. 54).

This provides a clear schism between the case law of the Strasbourg Court, which not only identified an unjustifiable interference with article 8 on the basis of ‘sanctions’, as relied on by the Court in these proceedings (para. 58), but more importantly, found the ‘mere existence of such laws to be an infringement of Article 8’ [Dudgeon v UK, Norris v Ireland and Modinos v Cyprus].[18]  In Dudgeon, the European Court of Human Rights recognised the “fear, suffering and psychological distress directly caused by the very existence of the laws in question, including fear of harassment and blackmail”, [19] and in Norris  the Strasbourg Court further noted: [20]

“A law which remains on the statute book, even though it is not enforced in a particular class of cases for a considerable time, may be applied again in such cases at any time, if for example there is a change of policy. The applicant can therefore be said to ‘run the risk of being directly affected’ by the legislation in question. This conclusion is further supported by … the witnesses’ evidence, found, inter alia, that ‘One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease.”

 The Court’s additional reference to Article 9 (1) (a) of the Directive,[21] and the need that the relevant acts must be “sufficiently serious by their nature or repetition as to constitute a severe violation of human rights” (para. 51), does not engage with the “accumulation of variation measures, including violation of human rights” which provides an alternative measure, pursuant to Article 9 (1) (b) of the Directive.[22]  Once again, the Court is addressing the question specifically posed by the Dutch authorities, rather than examining alternative pathways.  Its requirement for imprisonment as evidence of the application of the discriminatory measure(para. 59), which thereby provides the gateway to persecution, ignores the actual daily experiences of gay and lesbian refugees in a climate of fear.

 The UN Committee Against Torture, in the 2011 case of Mondal v Sweden, also found that the existence of such laws violates article 3 of the UN Convention Against Torture.[23] The Committee highlighted the fact that even though the Bangladeshi state argued that they did not actively prosecute gay men, the criminal law existed with the attached sanction of life imprisonment.  The Committee found that “not actively prosecuting homosexuals does not rule out that such prosecution can occur”.[24]    This finding led them directly to find that the individual would be at risk of torture on return, for amongst other things there existed due to the fact of mere criminalisation a “risk of persecution on the basis of his homosexuality”.[25]

Whilst not a decision handed down by a the Luxembourg or Strasbourg Courts, the application of decisions from different jurisdictions must also arguably have some force when interpreting protection measures arising from the Refugee Convention.  For example, in Italy, in a September 2012 Sentenza[26]  (TT v  Minister of the Interior), the Italian Supreme Court held that ‘[t]he penalty for homosexual acts, as provided by art. 319 of the Senegalese Penal Code, constitutes per se a general condition of deprivation of the fundamental right to live one’s sexual and affective life freely’.  Because this deprivation of fundamental rights ran counter to the Italian Constitution, the European Convention and the EU Charter of Fundamental Rights, it provided an ‘objective situation of persecution’.  The Luxembourg Court has missed an opportunity to protect gay and lesbian applicants, but also sent a clear message to countries which criminalise same-sex conduct that such laws are unacceptable.

This author welcomes the lack of the Court’s support for Advocate General Sharpston’s rejection of the application of ECHR norms in her Opinion of the 11th of July 2013, with her warning against the ‘export [of] those standards’ (para 41) .  The Advocate General’s Opinion, which the Court regularly adopts within its judgment as providing an authoritative source on the interpretation of EU law, argued that such protection measures arise from a European perspective, and therefore should not be forced on non-EU States.  This reasoning ignores the fact that these Strasbourg cases have also been applied in other jurisdictions, such as the United States,[27] and the UN Human Rights Committee’s landmark 1994 decision on  a ‘right to privacy’ within the comparative Article 17 of the of the International Covenant on Civil and Political Rights 1966, in Toonen v Australia. [28]  The UN Committee struck down Tasmania’s anti-sodomy law as an infringement to a right to privacy, by relying on Dudgeon et al. This adoption of Strasbourg reasoning makes these European decisions an integral part of the core of international human rights norms connected to sexual identity claims, and this is why Advocate General Sharpston’s Opinion on this point failed to engage with the development of international human rights law in sexual identity claims.  Unfortunately, the Court’s mis-direction on the judicial reasoning protecting private life rights and sexual identity started by Dudgeon, is a shortcoming of the judgment, as the Court fails to engage with the impact that mere criminalisation has on gay and lesbian individuals, even without enforcement.

As but one reaction to the decision, Jean Lambert MEP applauds the judgment,[29] hoping that it would be applied to those who seek asylum from the 76 [sic] countries in the world which criminalise same-sex conduct.  Unfortunately, the Court says that this is not enough, as it requires actual application of the law for persecution to be established, undermining Jean Lambert’s hopes.  However, as the Fleeing Homophobia  report highlights, the five countries which refused to accept enforcement as being enough to show persecution,[30] will no longer be able to ignore the link between enforcement of these laws and persecution.  Whilst the 2004 Directive provides ‘minimum standards’, there is no reason to not apply the reasoning to the 2011 Recast Directive.[31]

 Question Two  – Expect Concealment on Return? – No

Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The third and final issue is with respect to whether an individual can be compelled to conceal their sexual identity(paras. 62 – 78).  Where there exists no evidence of past-persecution, then there is a lack of evidence to support a serious indication of future risk, pursuant to Article 4 (4) of the Directive.[32] In these cases the Court recognises the basis of a position by a Member State that an individual can  exercise concealment, and therefore avoid persecution on return to the country of origin(para. 64).  This policy position would force thousands of gay asylum seekers back to their countries of origin and having to not only lie about their true selves, but more importantly to engage with ‘proving’ a straight identity which is completely alien to their true selves.  The Court, drawing on the earlier CJEU reasoning in the September 2012 case of Y and Z, had in effect answered this question in the negative.

Whereas in Y and Z,[33] the Court in September 2012 ruled against forced modification  in a case involving religious persecution of those of Ahmadi faith in Pakistan, this must also apply to a sexual identity claim.  The Court held “to conceal that sexual orientation is incompatible with recognition of a characteristic so fundamental to a person’s identity … an applicant for asylum cannot be expected to hide his homosexuality in his country of origin in order to avoid persecution” (paras. 70 and 72).

The Court was also asked about being expected to refrain from peripheral conduct which does not go to the core of the individual’s sexual identity.  The Court rejected this artificial distinction, applying the reasoning of Y and Z[34] finding that it was “unnecessary to distinguish acts” (para. 78), providing a clear rejection of the reasoning of Hathaway and Pobjoy  in their critique of the UK’s 2010 Supreme Court ruling in HJ (Iran) and HT (Cameroon).[35]

Not content with having addressed these questions to the Court, the Dutch authorities were seeking further answers with respect to how to ‘prove’ sexual identity (A, B and C v Minister voor Immigratie en Asiel)[36].  The Court was asked whether a  declaration by an individual with respect to sexual identity, was enough to prove whether an individual is gay or lesbian, as questioning was intrusive.  Once again, this author is of the view that this forms unnecessary and potentially decisive litigation, which signals an urgency to litigate a point on the basis of a premise (mere declaration) which is extremely unlikely to result in a positive answer. The Court accepted that sexual identity is a characteristic which is specifically linked to fundamental human rights (para. 54).[37]  Nonetheless, the battleground is now one where a gay or lesbian refugee needs to ‘prove’ their sexual identity resulting in extreme lengths they feel they are pushed to in order to prove identity.[38]

Having not been able to address these issues in DBN v the United Kingdom,[39] due to the lack of contact the UK solicitors had with their client, the Strasbourg Court has not been able to address substantive asylum claims based on sexual identity since the earlier 2004 decisions in F v UK[40] and INN v the Netherlands[41].  In the two-track approach to the European human rights project, where the Luxembourg Court is also proactive in providing guidance, the Strasbourg Court in 2013 in M.E v Sweden is being asked by the interveners[42] to apply the guidance of the UK Supreme Court,[43] and the UK Upper Tribunal,[44] in engaging with the risk group (those who are open), and how they are identified (‘not being straight enough, including straight individuals, due to non-compliance with a heteronormative stereotype in the eyes of the potential persecutor’), independent of whether an individual is ‘voluntarily discrete’, where such discretion is due to a well-founded fear of persecution.

Whilst X, Y and Z provides thus a welcome sigh of relief by not adopting the prohibition in exporting human rights advanced by Advocate General Sharpston in her  Opinion, in the end, it is a missed opportunity. The Court must one day engage with the real life experiences of gay and lesbian refugees who, day by day, chilled in the climate of fear arising out of criminalisation per se, are then forced to flee and seek sanctuary in Europe.

 This post was previously published here

[1] 26 Council of Europe Member States/ Contracting Parties recognise sexual orientation  in their national legislation as coming within the Particular Social Group Convention reason asylum claims, with a further 12 recognising sexual orientation within their policy guidance – see T. Hammarberg, Discrimination on grounds of sexual orientation and gender identity, 2nd edn, 2011, Council of Europe, p. 65:     http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf  (last accessed 8 April 2013)

[2] References to ‘gay and lesbian’, include bisexual individuals.  ‘Homosexual’ is used only where the original source uses this term.  The definition of sexual orientation is drawn from the 2007 Yogyakarta  Principles. See definition of sexual orientation in the 2007 Yogyakarta Principles: ‘to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender’. Online. Available HTTP: http://www.yogyakartaprinciples.org/principles_en.htm (last accessed 8th November 2013).

[3] S. Jansen and T. Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, Amsterdam, 2011, P. 16.  The author was on the expert panel advising on the final report and the UK Country Expert.

[4] Afdeling rechtspraak van de Raad van State (Judicial Division of the Council of State) 13 August 1981, Rechtspraak Vreemdelingenrecht 1981, 5, Gids Vreemdelingenrecht (oud) D12-51.

[5] The Convention Relating to the Status of Refugees, opened for signature, 28th July 1951, 189 U.N.T.S. 150, entered into force, 22nd April 1954, as amended by the Protocol Relating to the Status of Refugees 1967, 606 U.N.T.S. 267, entered into force, 4th October 1967.  Article 1 (A) (2) states “For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who: … (2) … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of protection of that country.”

[6] Council Directive 2004/83/EC of 29 April 2004 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 (Official Journal L 304 , 30/09/2004 P. 0012 – 0023).   Denmark opted out of the 2004 Directive, but does recognise the claims of gay and lesbian applicants (see S. Jansen and T. Spijkerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, Amsterdam, 2011, p. 24, fn. 74 ‘… “Disturbing Knowledge – Decisions from asylum cases as documentation of LGBT-persons”, LGBT Denmark and Danish Refugee Council (2008), http://www.lgbtdk/uploads/media/DisturbingKnowledge.PA.01.pdf’).

[7] Official Journal of the European Union: “Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 27 April 2012 – Z v Minister voor Immigratie en Asiel (Case C-201/12)” (21st July 2012 pp. 8-9)

[8] Sections in bold under the questions are the finding of the Court at § 79 of the Judgment.

[9] § 45 of Judgment.  The identification of difference as the first stage of PSG asylum claims is advanced by the author in the ‘DSSH’ (Difference, Stigma, Shame and Harm) model, endorsed by the UNHCR in their October 2012 Guidelines [§ 62].  See also “S. Chelvan – Protecting the rights of LGBT asylum seekers”, Pink News (2 September 2013) http://www.pinknews.co.uk/2013/09/02/interview-s-chelvan-on-protecting-the-rights-of-lgbt-asylum-seekers/ (last accessed 8th November 2013).  The model has been adopted by the authorities in New Zealand (May 2013) and will be analysed by the Swedish Migration Board (November 2013).  Representatives from 16 governments were provided training on the model at the Intergovernmental Consultations on Migration, Asylum and Refugees workshop on Gender and Sexual Orientation in Geneva (October 2012).

[10] (d) a group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society; 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. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article.” [emphasis added to text]

[11] Article 2 (c) cites the definition of a Refugee as defined by Article (1A) (2) of the 1951 Refugee Convention and 1967 Protocol Op cit fn. 8.

[12] Article 9 (2) (b) and (c): “Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:… (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;(c) prosecution or punishment, which is disproportionate or discriminatory;

[13] For Zimbabwe see – Nowhere to Turn: Blackmail and Extortion of LGBT People in Sub-Saharan Africa International Gay and Lesbian Human Rights Commission (IGLHRC): New York: 2011 http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/484-1.pdf  (last accessed 9th November 2013).  For Uzbekistan – see Sexual Minorities in Uzbekistan: Mission Report (International Research Centre on Social Minorities: December 2005):

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CDAQFjAA&url=http%3A%2F%2Fwww.ein.org.uk%2Fresources%2FIRCSMUzbek.doc&ei=4Kt8UuerH4nChAfcpICgCg&usg=AFQjCNFTkW4ZAIoFTAfZED1wLAr5OF0UAA (last accessed 8 November 2013).

[14] United Nations High Commission for Refugees HCR/GIP/12/09, 23 October 2012, Guidelines on International Protection No. 9:  Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees: § 27 to 28, 37, 53 and 61 http://www.unhcr.org/50ae466f9.pdf (last accessed 8th November 2013).

[16] § 58 to 60 of the Judgment.  Article 4 (3): “The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;”

[17] Both Articles provide recognition of the right to protection of private and family life: “Everyone has the right to respect for his or her private and family life, home and communications”.

[18] Dudgeon v the United Kingdom judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, Norris v Ireland  judgment of 26 October 1988, Series A no. 142; A.D.T. v. the United Kingdom, no. 35765/97, § 23, ECHR 2000-IX and Modinos v. Cyprus judgment 22nd April 1993.

[19] § 37 in Dudgeon.

[20] § 33 in Norris.

[21] Article 9 (1): “Acts of persecution within the meaning of article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

[22] The England & Wales Court of Appeal in November 2009 rejected this point, with specific reference to Article 9 (1) (a), but noted that the UK Home Officer’s lawyer conceded that an accumulation of article 8 violations may amount to persecution, Article 9 (1) (b) of the Directive – see OO (Sudan) and JM (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 1432 (18th November 2009).

[23] Uttam Mondal v Sweden (Communication NO 338/2008) (23rd May 2011) (CAT/C/46/D/338/2008), paragraph 7.3. Available Online at:  http://www.worldcourts.com/cat/eng/decisions/2011.05.23_Mondal_v_Sweden.pdf (accessed 1 July 2012).  The Committee held that in light of the medical reports corroborating past-ill-treatment, there would be a violation of article 3 of the UN Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment of this Hindu gay man from Bangladesh.

[24] Ibid.  paragraph 7.3.

[25] Ibid, paragraph 7.7.

[26] Sentenza n. 15981 del 2012 depositata il 20 settembre 2012http://www.retelenford.it/sites/retelenford.it/files/2012_Cass_15981-asilo.pdf (Transcript in Italian, last accessed 8 November 2013).

[27] US Supreme Court, Lawrence and another v. Texas (2003) 15 BHRC 111.

[28] Toonen v Australia (Comm No 488/1992, UN Doc CC PR/C/75/902/1999, 4 April 1994); [1994] PLPR 33.

[29] “PRESS RELEASE – EU Court of Justice rules sexual orientation valid ground for fear of persecution in asylum procedures (7th November 2013: E-mailed to Author by Selun Bruno, Secretary, Intergroup on LGBT Rights: European Parliament).

[30] Fleeing Homophobia  report, page 24. Op cit. fn.6.  The report refers to Denmark, Norway, Bulgaria, Spain and Finland.  Since the September 2011 date of the publication of the report, both the Norwegian and Finish Supreme Courts have passed judgments which have either fully applied or endorsed the approach of the UK Supreme Court’s July 2010 judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 A.C. 596.  See Finish Supreme Administrative Court – Iranian gay man:  Decision KHO:2012: 1 (13th January 2012), Summary Online. At HTTP: < http://www.unhcr.org/refworld/pdfid/4f3cdf7e2.pdf> (accessed 20th April 2012),  and Norway (Norwegian Supreme Court – Iraqi gay man)  “A” 29th March 2012, Online (Norwegian only). At HTTP: http://www.domstol.no/upload/HRET/saknr2011-1688(anonymisert).pdf  (accessed 22nd April 2012).

[31] Council Directive 2011/95/EC of 13 December 2011 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 (recast) (Official Journal L 337 , 22/12/2011, P. 0009 – 0036).

[32] Article 4(4):  “The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

[33] C‑71/11 and C‑99/11, Bundesrepublik Deutschland (Federal Republic of Germany) v. Y and Z.

[34] § 62 of Y and Z Op cit. fn. 48.

[35] James Hathaway and Jason Pobjoy ‘Queer cases make bad law’ New York University Journal of International Law and Politics 44 (2), 2012, 315-389.

[36] C-148/13, C-149/13 and C-150/13.  For preliminary reference questions posed by the Dutch Court – see http://www.raadvanstate.nl/pers/persberichten/tekst-persbericht.html?id=557&summary_only=&category_id=8 :  20th March 2013 (accessed 8th November 2013).

[37] § 54 of the Judgment.

[38] This includes the submission of video and photographic material of sex acts, which is both inhumane and undignified and should never occur.  See “Gay Asylum Seekers Going to Extreme Lengths to Prove Sexuality” (27th February 2013) http://www.no5.com/news-and-publications/news/462-gay-asylum-seekers-going-to-extreme-lengths-to-prove-sexuality/ (accessed 8th November 2013).

[39] [2011] ECHR 192 (Application No 26550/10) (Judgment 27th January 2011).

[40] ECtHR 22 June 2004, F v. United Kingdom, no. 17341/03.

[41] ECtHR 9 December 2004, I.I.N. v. Netherlands, no. 2035/04.

[42] M.E. v. Sweden, Application no. 71398/12 (Gay man in same-sex relationship from Libya):  “Written submissions by FIDH (Fédération Internationale des Ligues des Droits de l’Homme), ICJ (International Commission of Jurists) and ILGA-Europe (European region of the International Lesbian, gay, Bisexual, Trans and Intersex Association)”  (9th April 2013) see http://www.fidh.org/IMG/pdf/fidh-icj-ilga_europe_intervention_-_me_v_sweden_-_app_no_71398_-_12_-_9th_april_2013.pdf (last accessed 8th November 2013).  The author is Counsel instructed by the interveners, by Diana Baxter of Wesley Gryk Solicitors LLP, London, United Kingdom.  Currently awaiting notification of the hearing date.

[43] See § 19 to 20 of the Written Comments.  Referred to as the HJ/HT guidelines  from the UK Supreme Court July 2010 landmark judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 A.C. 596, 7th July 2010 [§ 82] (in summary form) (i) is the Appellant gay or lesbian, or perceived to be gay or lesbian?; (ii) do openly gay or lesbian individuals face a well-founded fear of persecution in the country of origin; (iii) will the individual be open on return (and thereby a refugee)?; or (iv) if ‘voluntarily discrete’ will this (a) be only  for familial or societal pressure (and thereby not a refugee)? Or (b) is a ‘material reason’ a well-founded fear of persecution (and therefore a refugee)?

[44] See § 22 of the Written Comments.  UK Upper Tribunal (Immigration and Asylum Chamber), SW (lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 00251 (IAC), 24th June 2011.  Upper Tribunal, in a Country Guidance case, finds that even straight women in Jamaica, will be subject to persecution, which may involve curative rape or murder, if they do not conform to a ‘heterosexual narrative’ required by the potential persecutor, i.e. are married/have a partner, or if they do not, are receptive to their sexual advances.


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