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.
With regard to the first question, the Court found that a group is regarded as a ‘particular social group’ where members of that group share an innate characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. In addition, that group should have a distinct identity in the relevant country because they are perceived as being different from the surrounding society. The Court found that both conditions were satisfied, a person’s sexual orientation is a characteristic fundamental to their identity, and the existence of laws criminalizing homosexuality supported a finding that the gay community was perceived by surrounding society in the relevant countries as being different.
With regard to the second question the Court found that an applicant for asylum could not be expected to conceal his homosexuality in his country of origin in order to avoid persecution. It was unnecessary to distinguish acts that interfere with core areas of the expression of sexual orientation (even if it were possible o identify them) from acts that do not affect those purported core areas.
The Court found that criminalisation of homosexual acts did not, in itself, constitute persecution. This was because Article 9 states that relevant acts which will constitute persecution must be ‘sufficiently serious’ by their nature or repetition as to constitute a ‘severe violation of human rights’. The “mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for finding that it constitutes persecution within the meaning of Article 9 (1) of the directive”. However, a term of imprisonment that sanctions homosexual acts and which is actually applied in the country of origin that adopted such legislation must be regarded as being punishment that is disproportionate and discriminatory under Art 9 2 (c) and thus constitutes an act of persecution.
The Court’s decision with regard to questions 1 and 3 is uncontroversial and follows reasoning already well trodden in the decision of the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department  UKSC 31. In HJ the Supreme Court found that it was not appropriate to ask whether someone could act ‘discreetly’ in order to avoid persecution on the grounds of homosexuality. The Court also firmly squashed the idea that forms of expression could be divided into those involving a ‘core area’ of orientation and those not. It has been common in past case law on issues such as religion and belief to attempt to make a distinction between core areas of belief and non-core areas. However, the courts appear to have realised that this approach involves the courts making judgments on points of theology rather than law. A move away from this approach is apparent in the ECHR cases of Eweida and Chaplin v United Kingdom. The decision in X, Y and Z marks a similar move away from a reductive approach with regard to sexual orientation and a recognition of the multiple variations of individual self-expression.
However, the decision of the Court as to whether criminalisation per se constitutes an act of persecution is disappointing. It is hard to see how criminalisation of homosexual acts per se is not deemed to be a serious enough violation of fundamental rights to constitute persecution. Even if a criminal provision is rarely enforced, that provides no guarantee that it will not be enforced in the future. This danger was recognised by the ECHR in Norris v Ireland (app no. 10581/83) and in Dudgeon v United Kingdom (app no. 7525/76) Furthermore, criminalisation expresses the fact that a particular society has deemed an act so harmful that a punitive sanction is required. To argue by analogy, would a law that criminalised marriages between different ethnic groups or incarceration of members of a particular religion not be deemed a “sufficiently serious” violation of fundamental rights, even if it were rarely enforced?
“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.”
Furthermore, Article 9 (2) (b) of the Directive recognises that acts of persecution may take the form of “legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner”.
The Court’s decision with regard to the definition of acts of persecution is disappointing. Given the current attitudes to gay rights in areas of Africa, and more recently in Russia, Lord Hope’s words in HT appear all the more relevant:
“The need for reliable guidance on this issue is growing day by day. Persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the Convention was being drafted. For many years the risk of persecution in countries where it now exists seemed remote. It was the practice for leaders in these countries simply to insist that homosexuality did not exist. This was manifest nonsense, but at least it avoided the evil of persecution. More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a public engagement ceremony were recently sentenced to 14 years’ imprisonment in Malawi. They were later pardoned in response to international pressure by President Mutharika, but he made it clear that he would not otherwise have done this as they had committed a crime against the country’s culture, its religion and its laws. Objections to these developments have been greeted locally with derision and disbelief.
The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention – no more, if I may be permitted to coin a well known phrase, but certainly no less.”