Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

X, Y and Z

Case Number: Joined Cases C‑199/12 to C‑201/12

Relevance of Decision

According to decision, LGBTI asylum seekers may be members of particular social group and cannot be expected to conceal or restrain their expression of sexual orientation to reduce risk of persecution. All criminalisation does not per se amount to persecution, but imprisonment actually does.

 

Facts of the case

The case concerns three asylum applicants (X, Y and Z) in the Netherlands from Sierra Leone, Uganda and Senegal. They have lodged applications for residence permits for a fixed period (asylum) in the Netherlands. In support of their applications, they claim that they should be granted refugee status on the ground that they have reason to fear persecution in their respective countries of origin on account of their homosexuality.

In each country of origin, homosexuality is a criminal offence punishable by a term of imprisonment. In none of the cases has the applicant demonstrated that he has already been persecuted or threatened with persecution on account of his sexual orientation.

The Minister refused to grant residence permits for a fixed period (asylum) to X, Y and Z. According to the Minister, although the sexual orientation of the applicants is credible, they have not proved to the required legal standard the facts and circumstances relied on and, therefore, have failed to demonstrate that on return to their respective countries of origin they have a well-founded fear of persecution by reason of their membership of a particular social group.

Legal Questions

Three men from Sierra Leone, Uganda and Senegal applied in the Netherlands for asylum since they feared persecution given the criminalisation of homosexuality in their countries of origin (criminal offence punishable by a maximum life sentence in Sierra Leone and Uganda, and up to 5 years in Senegal). In none of the cases the applicants had demonstrated that they had already been persecuted or threatened with persecution on account of their sexual orientation. The Dutch Council of State asked the CJEU 1) whether third country nationals with a homosexual orientation form a ‘particular social group’ capable of qualifying for protection under the Art 10(1)(d) Qualification Directive; 2) whether they can be expected to conceal their orientation or exercise restraint in their country of origin in order to avoid persecution; 3) whether the criminalisation of homosexual activities and the threat of imprisonment in relation thereto constitute an act of persecution within the meaning of Art 9(1)(a), read in conjunction with Art 9(2)(c) QD.

The CJEU answered that “the existence of criminal laws […]which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group” in the sense of Art 10(1)(d) Qualification Directive. Further, the Court held that “the criminalisation of homosexual acts per se does not constitute an act of persecution” while “a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin […] must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution”. Finally, the CJEU stated that “[w]hen assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation”.

In its reasoning the CJEU referred to the Charter: The Court made clear that “the fundamental rights specifically linked to the sexual orientation concerned […] such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible”. The Court also stated that “the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive”, but that the term of imprisonment which […] punishes homosexual acts is capable, in itself of constituting an act of persecution […], provided that it is actually applied in the country of origin which adopted such legislation. Further, the Court held that a “sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of the Directive”.

Court Findings

In its reasoning the CJEU referred to the Charter: The Court made clear that “the fundamental rights specifically linked to the sexual orientation concerned […] such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible”. The Court also stated that “the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive”, but that the term of imprisonment which […] punishes homosexual acts is capable, in itself of constituting an act of persecution […], provided that it is actually applied in the country of origin which adopted such legislation. Further, the Court held that a “sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of the Directive”.

 

Operative part:

"1. Article 10(1)(d) of Council Directive 2004/83/EC […] must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

2. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

3. Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation."

 

Reasoning:

"10 As follows from recital 10 in the preamble to the Directive, read in the light of Article 6(1) TEU, the Directive respects the rights, freedoms and principles recognised by the Charter. In particular, it seeks to ensure, on the basis of Articles 1 and 18 of the Charter, full respect for human dignity and the right to asylum of applicants for asylum.

40 The Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (Case C‑364/11 Abed El Karem El Kott and Others [2012] ECR, paragraph 48 and the case-law cited).

54 In that connection, it must be stated at the outset that the fundamental rights specifically linked to the sexual orientation concerned in each of the cases in the main proceedings, such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible.

57 Such a sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of the Directive."

Critical Assessment

The impact of this judgment on national law and the use of the EU Charter of Fundamental Rights was described in the European Council on Refugees and Exiles publication: "Preliminary Deference?", available at https://www.ecre.org/wp-content/uploads/2017/03/CJEU-study-Feb-2017-NEW.pdf

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