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