The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.
The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.
The questions referred were:
- Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
- Which homosexual activities might fall within the scope of the Directive:
(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;
(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;
(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).
3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading
The CJEU handed down its decision in Ministerul Public – Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu last week. In summary, the Court was asked to clarify the extent to which countries are required to take into account rights to a fair trial and liberty when considering whether to execute an a European Arrest Warrant (EAW). It is a short and somewhat surprising judgment, which does not sit well either with the Court’s decision in NS v Secretary of State for the Home Department last year, the original opinion of Advocate General Sharpston, or indeed the questions referred for preliminary ruling. Continue reading
Christopher Brown and Anita Davies
On 5 September 2012 the Grand Chamber of the CJEU gave judgment in Case C-83/11 Secretary of State for the Home Department v Rahman and Ors. This case had been referred to the CJEU by the Upper Tribunal (IAC) here in the UK. The questions referred concerned the interpretation of Article 3(2) of Directive 2004/38, also known as the Citizenship Directive. We think it is an interesting judgment, particularly for immigration practitioners, and so (rather later than planned) here is a short synopsis and comment.
Article 3(2) reads as follows:
The decision is Assange v The Swedish Prosecution Authority  UKSC 22 yielded a number of surprises. Firstly, the decision of the majority to rely on a point not argued before the Court (the 1969 Vienna Convention on the Law of Treaties) and secondly, the finding that the CJEU’s decision in Criminal Proceedings Against Pupino (Case C-105/03), which establishes that member states must interpret domestic law in conformity with the wording and purpose of framework decisions, does not bind UK courts. While this finding did not have a material impact on the outcome of Assange, as the majority concluded that the common law presumption that the UK will legislate in accordance with it international obligations would result in the same outcome as if Pupino had applied, it established an important constitutional point that appears, somewhat curiously, to have been overlooked in previous case law.
Joanna Buckley & Anita Davies
The High Court’s decision on 2 November that Julian Assange should be extradited to Sweden to face rape allegations has rekindled debate on the use and implementation of the European Arrest Warrant (“EAW)”. Critics of the system contend that EAWs do not include sufficient safeguards. Proponents argue that the EAWs are a necessary tool to fight cross-border crime.
UK extradition policy has undergone several reviews in the last year, highlighting divergent opinions on the future of the EAW. In September 2010, the government appointed an inquiry under Sir Scott Baker (“the Extradition Review”), which released its findings on 18 October 2011 (a useful summary can be found on the UK Human Rights Blog). The report concluded that, “apart from the problem of proportionality, we believe that the European arrest warrant scheme has worked reasonably well”. Prior to this, the Joint Human Rights Committee (“JHRC”) released a report on 22 June 2011. In contrast to the Extradition Review, the JHRC called for a future renegotiation of the 2002 Framework Decision on the EAW, given domestic effect by the Extradition Act 2003. A Westminster Hall debate on extradition is scheduled for 24 November.
These reviews highlight disagreement on key areas – whether there should be a requirement for prima facie evidence, the application of the principle of double criminality and the sufficiency of the human rights bar to extradition contained in ss21 and 87 of the Extradition Act 2003, amongst others. But they have also thrown up much larger issues of the theoretical underpinnings of the relationship between the EU and its member states (as previously discussed here on EUtopia).
At the heart of the EAW scheme is the principle of mutual recognition. Mutual recognition has been the cornerstone of European integration on criminal matters, put forward (perhaps ironically) by the UK during its presidency of the European Council in 1998. Supported theoretically by the architects of EU legislation, its implementation has been far more difficult.