Facts

X, Y and Z applied for asylum in the Netherlands, claiming that they have reason to fear persecution in their respective countries of origin on account of their homosexuality. In the countries of origin of X, Y and Z, homosexuality is a criminal offence. Their asylum applications were rejected, with the justification that although the sexual orientation of the applicants is credible, they have failed to demonstrate that on return to their countries they have a well-founded fear of persecution. On appeal, the court decided to stay the proceedings and ask the CJEU for a preliminary ruling.

Questions referred to the CJEU by the national court

1. Do foreign nationals with a homosexual orientation form a particular social group?

2. Which homosexual activities fall within the scope of the Directive, and can persecution in respect of those activities lead to the granting of refugee status? 

(a) Can foreign nationals with a homosexual orientation be expected to conceal their orientation to avoid persecution?

(b) Can foreign nationals with a homosexual orientation be expected to exercise restraint in order to avoid persecution?

(c) Can a distinction be made between forms of expression which relate to the core area of the orientation and forms of expression which do not?

3. Is the criminalisation of homosexual activities and the threat of imprisonment an act of persecution?

Court’s ruling

The first Court explained that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. The Court found that the existence of criminal laws, which specifically target homosexuals, supports the finding that those persons are perceived by the surrounding society as being different and must be regarded as forming a particular social group.

Responding to the second question, the Court found that it cannot reasonably be expected that an asylum-seeker should conceal his homosexuality or to exercise reserve in the expression of his sexual orientation in order to avoid the risk of persecution.

Regarding the third question, the Court found that the criminalisation of homosexual acts alone does not, in itself, constitute persecution. However, 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.