CJEU : AG Opinion in X, Y, Z v. Minister voor Immigratie, Integratie en Asiel (Joined Cases C-199/12, C-200/12 & C-201/12) [Arts. 9 & 10(1)(d), Qualification Directive]

Date: 
Friday, October 4, 2013

In a case involving three homosexual men seeking refugee status in the Netherlands who come from countries where homosexual acts are criminal offences (Sierra Leone, Uganda, and Senegal) the national court raised three questions concerning the assessment of applications for refugee status under the provisions of Chapter III of Council Directive 2004/83/EC (‘the Directive’).  First, do third country nationals who are homosexual form a particular social group within the meaning of Article 10(1)(d) of the Directive? Second, how should national authorities assess what constitutes an act of persecution concerning homosexual activities for the purposes of Article 9 of the Directive? Third, does the criminalisation of those activities in the applicant’s country of origin with the possibility of imprisonment where a conviction is obtained amount to persecution within the meaning of the Directive?

The Advocate General Sharpston proposes the Court to answer the questions referred by the Raad van State to the following effect:

(1)   Applicants for refugee status who have a homosexual orientation may, depending on the circumstances in their country of origin, form a particular social group within the meaning of Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004. It will be for the national court to assess whether such a group has a ‘distinct identity’, in the case of each applicant’s country of origin, ‘because it is perceived as being different by the surrounding society’, for the purposes of the second indent of that provision.

(2)      The criminalisation of homosexual acts does not per se constitute an act of persecution for the purposes of Article 9(1) of the Directive. It is for the competent national authorities to assess, in the light of the circumstances pertaining in an applicant’s country of origin in relation, in particular, to: the risk and frequency of prosecution; in the event of successful prosecution, the severity of the sanction normally imposed; and  any other measures and social practices to which the applicant may reasonably fear to be subjected, whether a particular applicant is likely to be subject either to acts which are sufficiently serious by their nature or repetition as to constitute a severe violation of human rights, or to an accumulation of various measures, including violations of human rights, which is sufficiently severe similarly to affect the applicant.

(3)      In assessing whether criminalisation of the expression of homosexuality as an expression of sexual orientation is an act of persecution within the meaning of Article 9(1) of the Directive, the competent authorities of a Member State must consider whether the applicant is likely to be subject to acts, or an accumulation of various measures, that are sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights.

Read the press release and full text of the Advocate General’s Opinion on the CJEU website.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Membership of a particular social group
Persecution (acts of)
Persecution Grounds/Reasons
Sexual orientation
Tags: 
CJEU
Malta