The European Court of Justice (ECJ) has ruled that the fear of imprisonment for homosexuality in African countries is grounds for asylum in all European Union countries.
The court ruled that a gay refugee from a country where people are jailed for being homosexual does qualify as a persecuted group that is eligible for asylum.
In certain African countries, such as Sierra Leone, Uganda, Kenya, Botswana and Senegal, homosexual acts are a criminal offence and may result in serous punishment, from heavy fines to life imprisonment, which may constitute an act of persecution.
Under international law a particular social group with a well-founded fear of persecution can claim refugee status if the persecution amounts to a severe violation of human rights.
The judges also ruled that asylum seekers should not be expected to conceal their homosexuality in order to avoid persecution in their home country, as concealing sexual orientation is incompatible with the recognition of a characteristic that is fundamental to a person’s identity.
The UK government welcomed the ruling, which was made in Holland in the case of three homosexual men who had sought asylum there, saying that the UK has “a proud history of granting asylum to those who need it”.
However, the Government spokesman added that applicants must establish that they do face persecution and inhuman or degrading treatment in their country of origin in order to qualify for protection here, as the mere existence of a ban on homosexuality there is not grounds in itself for approving an asylum request.
Meanwhile, next year the EU courts are expected to rule on a more difficult matter, again involving a Dutch case, when national asylum authorities will have to spell out how they will verify a person’s claim that they are homosexual.