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CJEU rules on the protection afforded to asylum seekers who face a well-founded fear of persecution on grounds of their sexual orientation


Joined Cases C-199/12 to C-201/12 X, Y and Z, judgment of 7 November 2013

This reference from the Dutch Council of State concerned three asylum seekers from Sierra Leone, Uganda and Senegal, countries in which homosexual acts are criminalised and punishable by a term of imprisonment which, in the case of Uganda, can be for a life term.  The three claimants sought asylum on the basis that they faced a well-founded fear of persecution as a result of their sexual orientation.

The Court of Justice of the EU clarified two important questions of principle in relation to the protection afforded to refugees by EU law in this context.

It held, first, that although the existence of legislation criminalising homosexual acts did not in itself constitute persecution, the existence of a term of imprisonment by way of penalty (provided it was actually applied in practice) did reach the level of severity required in order to amount to persecution.

The Court then considered whether it was legitimate for EU Member States to reject an asylum application on the ground that the claimant could escape persecution in their country of origin by exercising restraint in relation to their sexuality.  The Court roundly rejected that argument, holding that requiring people to conceal their sexual orientation was "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 judgment is here.

Marie Demetriou QC represented the United Nations High Commissioner for Refugees.

Sarah Lee represented the UK government which lodged a written intervention in the proceedings.