By S Chelvan
The recent 2 December judgment in the A, B and C case, provides guidance on prohibited steps in determining an asylum claim based on sexual identity. Where was the positive guidance? Is the Court’s failure to provide guidelines on how a claim is to be determined a blessing in disguise?
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. The Court has ensured that the floodgates are not opened to enable gay and lesbian 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. The following year, the Dutch authorities, ironically the first country in the world to recognise in 1981 the protection of gay men as a Particular Social Group under the 1951 Refugee Convention, posed three questions to be addressed by the Court, through the prism of the 2004 Qualification Directive, with respect to the asylum claims of 3 gay men from Senegal, Sierra Leone and Uganda: Continue reading
On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.
On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.