By JUERGEN BAETZ
BRUSSELS — Refugees facing imprisonment in their home country because they are gay may have grounds to be granted asylum in the European Union, the 28-nation bloc’s top court ruled Thursday.
The existence of laws allowing the imprisonment of homosexuals “may constitute an act of persecution per se,” if they are routinely enforced, the Luxembourg-based European Court of Justice said.
A homosexual cannot be expected to conceal his sexual orientation in his home country to avoid persecution since that would amount to renouncing a “characteristic fundamental to a person’s identity,” the EU court added.
It ruled on the cases of three people from Sierra Leone, Uganda and Senegal seeking asylum in the Netherlands.
Worldwide, more than 70 countries have laws that are used to criminalize people on the basis of sexual orientation, according to the International Commission of Jurists, an advocacy group. The laws typically prohibit either certain types of sexual activity or contain a blanket ban on intimacy and sexual activity between members of the same sex.
International treaties say people must prove they have a “well-founded fear” of persecution for reasons of race, religion, ethnicity, political opinion, or membership in a social group targeted by the authorities, if they are to obtain asylum. The court ruled that laws singling out homosexuals make them such a social group.
In some nations, however, the laws are rarely enforced. The court said it will be up to Europe’s national authorities to determine whether the situation in an applicant’s home country amounts to persecution.
Amnesty International said the court should have gone further and recognized the mere existence of anti-gay laws in a country as persecution, “even when they have not recently been applied in practice.”
Amnesty said homosexuality is “increasingly criminalized across Africa,” with 36 nations there having laws against same-sex conduct. In addition, many predominantly Muslim nations such as Iran, Kuwait or Afghanistan outlaw homosexuality.
Some European Union member states, including the Netherlands, already accept sexual orientation as a reason for granting asylum under certain circumstances, but the European Court of Justice’s ruling clarifies that policy and makes it binding for all 28 EU nations.
It still remains unclear how national authorities should check a person’s claim of being homosexual. The EU court isn’t expected to rule on that issue before next year.
While Dutch authorities initially rejected the three plaintiff’s asylum applications, the government on Thursday said the court ruling “appears to be in line with the current policy in the Netherlands” granting homosexuals asylum on a case-per-case basis.