On November 7, 2013, the European Court of Justice (ECJ) decided that homosexual asylum seekers who are subject to criminal prosecution in their home countries be granted asylum in EU Member States. An important judgment that is, however, a drop in the ocean in the light of the EU’s policy of closure with regard to asylum and refugee policy.
This decision was based on the case of three gay men from Sierra Leone, Uganda and Senegal whose application for asylum was turned down in the Netherlands. The Supreme Court of the Netherlands had asked the ECJ for a preliminary ruling on the interpretation of EU law. According to the European Qualification Directive  that refers to the Geneva Convention on Refugees, an individual with a well-founded fear of persecution on the grounds of race, religion, citizenship, political opinion or membership of a particular social group may apply for asylum, i.e., protection from persecution. Since “sexual orientation” is not explicitly mentioned as a reason for persecution, the Court initially had to decide whether homosexuals are to be considered a particular social group for the purposes of the directive.
Member of a social group
According to the directive, two conditions need to be fulfilled. First, the social group requires shared characteristics that cannot be changed. Second, a distinct identity, since the rest of the population considers them to be different. The European Court of Justice suggested that both apply in the case of homosexuals. The mere fact that there are criminal law provisions that specifically relate to homosexuals suggest that they constitute a social group. After having been clarified by the highest European court, this applies to all future jurisdictions within the EU.
Sexual orientation as a characteristic of identity
The ECJ further argues that an individual’s sexual orientation constitutes such an important characteristic of the person’s identity that he or she should not be forced to refrain from it. This is an important decision. The ECJ refutes a frequent pattern of argumentation in German jurisdiction and the decision-making practice of the Federal Office for Migration and Refugees (BAMF) on the grounds of which homosexual individuals’ asylum applications were rejected. The asylum seeker is asked to remain closeted in his or her home country in order to avoid potential risks. It is a major success of this judgment that this cynical argument that implies a reversal of perpetrator and victim may no longer be used in any European court.
Serious violation of fundamental rights
Moreover, the Netherlands Council of State asked the ECJ to clarify issues related to identifying prosecution. Does the criminalisation of homosexual acts in the home country suffice for the recognition of refugee status? The Court of Justice responded in a differentiated way: Prosecution in terms of the Geneva Convention covers serious violations of basic rights, i.e., simple legislation that penalises homosexual acts are not deemed sufficient. In contrast, a prison sentence for homosexual acts may be considered an act of persecution. Nevertheless, what exactly is meant by “serious”? It is obvious that it covers prison and death sentences. However, what else? There is a wide scope of interpretations that render possible the dismissal of homosexual individuals’ asylum applications.
In addition, EU Member States are only required to grant protection from persecution, if these penalties are actually imposed in the countries of origin. Therefore, the Court advises national authorities to check the application of legal provisions in the corresponding countries. This could be a potential stumbling block. What happens to lesbians and gay men who do not risk imprisonment or death penalties in their respective home countries, but who are exerted to discrimination, harassment, if not violent assaults every day and who want to leave their respective country for that reason? They are unable to live a free life in conditions of equality. However, they will probably not qualify for asylum in the EU. Hence, the judgment excludes some individuals seeking protection. It is to be hoped that courts recognise this type of violation of basic rights as a ground of persecution and, as a result, enable lesbian and gay asylum seekers to be received as refugees by EU Member States.
Nevertheless, this judgment needs overall to be considered ground-breaking for the right to asylum in Europe. The Court made a clear statement on the recognition of the status of refugees on the grounds of sexual orientation. It contradicts the established practice to reject lesbians and gay men seeking asylum based on the argument that they should live out their homosexuality more cautiously in their respective home countries. The judgment has a direct effect within the entire EU, and all authorities and courts need to observe it. When taking into consideration the entire European asylum and refugee policy, this is, however, only a drop in the ocean. As long as the EU continues to consider migrants and refugees a “safety problem” that can be combatted by e.g. Frontex, the agency for the protection of the external borders; as long as there is no comprehensive European asylum and refugee policy which leads away from sealing off to a humanitarian, human rights centred approach, people will continue to die at the external borders of the EU. The Federal Government, too, is able to, and ought to take part in deciding on the direction of EU asylum policy. This would be an important and necessary sign after the tragedy of Lampedusa.
 Article 2 c of Council Directive 2004/38/EC of April 29, 2004 on minimum standards for the recognition and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.