On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.
Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘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’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that ‘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 [including Articles 2 and 3]; 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)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (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; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’.
The Dutch Raad van State referred three questions to the CJEU: Firstly, whether gay men form a particular ‘social group’ for the purposes of the Directive; secondly, which homosexual activities might fall within the scope of the Directive (encompassing the questions; (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 and (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), and thirdly (and perhaps most controversially) whether the criminalisation of homosexuality amounts to persecutory treatment per se.
The first question was for UK lawyers at least, uncontroversial (Islam v SSHD; R v Immigration Appeal Tribunal and another, ex parte Shah  2 AC 629; HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same  UKSC 31;  1 AC 596) and indeed the Directive (unlike the Refugee Convention) refers in terms to sexual orientation (Article 10(1)). Unsurprisingly, the Advocate General proposed that the Court rule that gay men may, depending on the circumstances in their country of origin, form a particular social group within the meaning of the Directive. Whether or not they do entails an assessment of the legal rules and the social and cultural mores in the applicant’s country of origin and that is a matter for the national authorities, subject to review by the national court (paragraph 35).
As to the second question (the proposed answer to which was given before the third), Advocate General properly shifted the focus from the acts of gay men, to the acts of persecution. She also observed that the questions from the referring court were premised on the assumption that gay applicants for refugee status ‘have a choice (and perhaps even a responsibility) to behave in their respective countries of origin in a manner that reduces the risk of acts of persecution on grounds of their sexual orientation’. That she rejected as ‘counter to their right to respect for the sexual identity’ (paragraph 58). Consistent with this, she considered that there is no distinction for the purposes of the Directive between the expression of an applicant’s homosexual orientation in private or public; ‘the pertinent questions are whether the applicant, by reason of his sexual orientation, is a member of a social group for the purposes of Article 10(1)(d) and whether there is a connection as required by Article 9(3) between that ‘reason for persecution’ and an act or acts of persecution under Article 9(1)’ (paragraph 61).
As to whether gay applicants for refugee status should be expected to conceal, or exercise restraint in expressing, their sexual orientation, in particular, again this is now uncontroversial for UK lawyers. Advocate General Sharpston concluded, as has the UK Supreme Court (lawyers (HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same  UKSC 31;  1 AC 596), that an applicant for refugee status should not be expected to conceal, or exercise restraint in expressing, his sexual orientation in order to avoid persecution in his country of origin. (See, the now notorious observations of Lord Rodger in HJ: ‘what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis—and in many cases the adaptations would obviously be great—the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution’). As Advocate General Sharpston commented, it would mean otherwise ‘that if the applicant (the victim) failed to conceal his sexual orientation, he was in some way deemed to be implicated in his own plight as an actor of persecution, which is irreconcilable with the way in which …the Directive is framed. Indeed, a requirement that applicants should conceal their sexual orientation might be regarded as constituting an act of persecution in itself’ (paragraph 64). Nor, relatedly, is there any identifiable ‘core’ area of expression of sexual orientation and in her view the court should not pursue that (paragraph 71). It is certainly true that such an approach could be dangerously reductive.
The third question, whether criminalization per se is persecutory, was the most controversial. The arguments depended upon the gross affront to human dignity consequential upon such laws through their stigmatization of gay men. On behalf of the applicants, it was submitted that the mere existence of such laws even in the assumed absence of imminent enforcement are persecutory as against gay men and/or amount to inhuman and degrading treatment. They seriously violate regional and international human rights standards and are, most particularly, contrary to the core values underpinning the European Union, namely human dignity and equality as reflected in the Charter of Fundamental Rights. Further, the mere non-enforcement of such laws does not mean that their effect is non-persecutory or that they do not subject gay men to inhuman or degrading treatment. They operate to stigmatise gay men individually and as a class, causing psychological damage, injury to self-esteem, social marginalisation, stigmatisation and fear – simply for who they are. It was argued that the non-refoulement obligations both in the Directive and now in the Charter prohibit the forced return of gay men to a country where such laws remain on the statute books. Sexual orientation is a fundamental aspect of human identity and measures taken to stigmatize some sexual orientations or the expressions of sexual orientation are profoundly violatary of human dignity. It was argued that the non-refoulement obligations inherent in the rights protected under the European Convention and in the Charter (see, NS Case C 411/10) prohibit the return of a person to their country of origin where there is, amongst other things, a real risk of a breach of Article 3 of the Convention, now also in Article 4 of the Charter, namely the prohibition on inhuman and degrading treatment. As the European Court observed in Amatkulov and Askarov v Turkey (2005) (Applications nos. 46827/99 and 46951/99): It would hardly be compatible with the “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble [in the Convention] refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to a denial of the most important of the rights protected. The same is true of the values and actions of the European Union, especially post the Lisbon Treaty and the enhanced status in the Union of fundamental human rights. The CJEU was invited to consider whether the existence of laws criminalizing gay men by reason of their existence alone, create a real risk that a homosexual will be subject to a serious violation of Article 1 of the Charter, the right to respect for human dignity, and/or inhuman and degrading treatment for the purposes of Article 4, of the Charter. The existence of laws criminalizing homosexuality degrade and de-humanise gay men in the eyes of the wider community and they do so deliberately in order to debase and humiliate and so compel compliance with hetero-normative behaviours, causing grave psychological distress. As the Court of Human Rights has long since held, publicly to single out a group of persons for differential treatment on the basis of race may constitute a special form of affront to human dignity and might therefore be capable of constituting inhuman and degrading treatment contrary to what is here Article 4 of the Charter (East Africa Asian Cases Application no. 4403/70 and Others). If the law allowed for the incarceration of an ethnic group based on ethnicity alone in it inconceivable that anyone would regard that as otherwise than a violation of the prohibition on inhuman and degrading treatment. It was argued that the same must be true of gay men, especially having regard to the long history of persecution against them, including in Europe. Certainly, the impact of such laws and their assault on dignity and equality is recognized in the case law from other jurisdictions (for example, Lawrence v Texas 539 U.S. 558 (2003); Vriend v Alberta  1 S.C.R. 493 and National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) Case CCT 11/98).
The third question and the arguments just summarized in support of an affirmative answer were always going to be difficult and controversial. However, the issues raised by the third question are important and in answering it, the impact of the laws in issue, even where apparently not enforced, must be confronted. Criminal laws, are connectedly both normative and punitive. They tell society what is acceptable and tell individuals what is not acceptable – they operate as a legal and social imperative not to do something, or, to be someone and license society to express its disapproval through stigmatisation, prejudice and discrimination. Laws criminalising homosexuality cause shame, damage to self-esteem, fear and psychological damage, and utterly eat away at a person’s human dignity, personality and therefore humanity, and may affect their enjoyment of State protection.
Nevertheless, Advocate General Sharpston adopted a modest approach. In her opinion, whilst such laws may be so, in determining whether legislative measures prohibiting the expression of sexual orientation are actually such as to constitute ‘acts of persecution’, the national authorities should take into account, in particular, (i) evidence concerning the application of criminal provisions in the applicant’s country of origin, such as whether the authorities actually bring charges and prosecute individuals; (ii) whether criminal sanctions are enforced and, if so, how severe those sanctions are in practice and (iii) information concerning the practices and the mores of society in general in the country of origin (paragraph 45). Criminal sanctions that result in a long period of imprisonment for expressing a homosexual orientation could amount to an infringement of Article 3 ECHR (the prohibition against inhuman and degrading treatment or punishment), and thus would be sufficiently serious to constitute a severe violation of basic human rights for the purposes of Article 9(1) of the Directive. Accordingly, in the view of the Advocate General the criminalisation of homosexuality does not per se constitute an act of persecution for the purposes of the Directive. Rather, it is for the competent national authorities to assess, in the light of the circumstances pertaining in the applicant’s country of origin, in particular, to (i) the risk and frequency of prosecution, (ii) in the event of successful prosecution, the severity of the sanction normally imposed, and (iii) any other measures and social practices to which the applicant may reasonably fear to be subjected, whether a particular applicant is likely to be subject either to acts which are sufficiently serious by their nature or repetition as to constitute a severe violation of human rights, or to an accumulation of various measures, including violations of human rights, which is sufficiently severe similarly to affect the applicant (paragraph 50). This is a disappointing conclusion and we must now hope for a more progressive result from the Court.