Homosexuality Grounds For Granting Asylum

Homosexuality may be a reason to grant asylum to fugitives coming to the European Union. This was decided by the European Court of Justice. Three men from African countries had filed charges against the Kingdom of the Netherlands for recognition as refugees with the right to apply for asylum. Their home countries are known to punish homosexual acts with heavy prison sentences or even life imprisonment.

According to the judges, sexual orientation is a personal characteristic that no one can remove or freely choose. Homosexuals belong to a social minority group within the defined meaning of European Union law which in turn is based on the Geneva Convention. Persons being persecuted in their home country based only on being part of a social group are entitled to take refuge in the European Union.

Dutch authorities had claimed that it was reasonable for homosexuals to evade prosecution by restraining their sexuality (next, they will tell Syrians not to get shot at). The European Court disagreed decisively as sexual identity is a formative element of personality. Homosexual can't therefore be expected to keep their sexuality a secret to avoid persecution.

Not all kinds of persecution give a right to apply for asylum according to the judgment. Persecution has to backed up with the threat of significant penalties. These penalties have to be real, i.e. they are not only put down in law but are actually imposed on perpetrators. Whether this is the case would have to be checked by the immigration authorities in each individual case.

In the specific case of three citizens from Sierra Leone, Uganda and Senegal had complained against a decision made by Dutch authorities not to treat them as refugees under the Geneva Convention. The African nationals had applied for asylum in the Netherlands, because they had a reasonable fear they would be imprisoned because of their sexual orientation. In all three countries, homosexual acts are considered crimes. Gays and lesbians face heavy fines and imprisonment.

The Dutch Ministry for Immigration had initially rejected the asylum applications. They (heterosexuals with no restraint) had reasoned that homosexuals could exercise restraint and thus avoid punishment. The Luxembourg judges ruled that asylum authorities can't require refugees to hide their sexuality in order to avoid persecution in their home countries.

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