Bruno Waterfield, Telegraph (London), November 7, 2013
A gay refugee from an African country where people are jailed for being a homosexual does qualify for asylum, the EU rules.
The fear of imprisonment for homosexuality in African countries is grounds for asylum in the European Union, Europe’s highest court has ruled.
According to the European Court of Justice, a gay refugee from a country where people are jailed for being homosexual does qualify as a persecuted group eligible for asylum.
The court’s ruling concerned three homosexual men from Sierra Leone, Uganda and Senegal who had sought asylum in Holland, but is binding for all EU countries, including Britain.
“Homosexual acts are a criminal offence in those three countries and may lead to serious punishment, from heavy fines to life imprisonment in certain cases,” the ECJ ruled.
“A term of imprisonment which accompanies a legislative provision which punishes homosexual acts may constitute an act of persecution per se, provided that it is actually applied.”
The EU judges also ruled that asylum seekers should not be expected to conceal their homosexuality to avoid persecution in their home country.
“The court considers that requiring members of a social group sharing the same sexual orientation to conceal it 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,” the judges ruled.
“Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.”
Homosexual acts are illegal across Africa including in countries such as Uganda, Nigeria, Kenya and Botswana, which have close links to the West.
Under international law people from a social group with a well-founded fear of persecution or human rights violations can claim asylum status.
It will be up to national authorities to decide whether the situation in an applicant asylum seeker’s country of origin amounts to persecution, particularly “whether the term of imprisonment is applied in practice”.
“The UK has a proud history of granting asylum to those who need it and applications are carefully considered before a decision is made,” said a Government spokesman.
“However, applicants must establish that they face persecution and inhuman or degrading treatment in their country of origin to qualify for our protection.”
Next year, following another Dutch case, the EU courts are expected to rule on a much more difficult matter: how national asylum authorities should verify a person’s claim that they are homosexual.