Bisexuality “grounds for fear of persecution” in asylum cases

BCN 123 cover

This originally appeared in BCN issue 123, February 2014

On November 7 the Court of Justice of the European Union (CJEU) ruled that people fleeing their country with a well-founded fear of being persecuted because of their sexual orientation may qualify for asylum in the European Union.  This applies to bisexual people as well as lesbians and gay men.

Rules to grant asylum in European Union Member States are laid down in the Directive on asylum qualifications. The Directive holds that depending on circumstances in their country of origin, people belonging to “particular social groups” may seek refuge in the EU. Faced with asylum requests from three gay men from Senegal, Sierra Leone and Uganda, the Dutch State Council asked the CJEU whether homosexual people were considered a “particular social group” within the meaning of the Directive.

The Court of Justice answered that indeed, people of a specific sexual orientation targeted by laws criminalising their conduct or identity could constitute such a group. The Court added that prison sentences prescribed by law only counted as “persecution” when they were enforced. This is the case in most of the 76 countries criminalising homosexuality, but not all.

Finally, the Court affirmed that EU Member States could not reasonably expect gay, lesbian and bisexual asylum-seekers to hide their sexual orientation in the countries they fled.

Michael Cashman MEP, Co-President of the European Parliament’s LGBT Intergroup, said: “This is certainly a landmark decision, and the right one.  I hope Member States will work constructively with the excellent guidance being developed by the European Asylum Support Office in Malta, so that our asylum procedures become more accommodating of the terrible realities people flee.”