EU court says anti-gay laws can be grounds for asylum

Europe’s highest court on Thursday ruled that gay refugees may be granted asylum in the European Union if anti-gay laws in their home countries pose a real threat of persecution.

“The existence of a term of imprisonment in the country of origin sanctioning homosexual acts may constitute an act of persecution per se,” and therefore can be grounds for asylum, the Luxembourg-based European Court of Justice said in a statement.

"A person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it," the court said, adding that it was not reasonable to expect gay people to conceal their sexual identity.

The court was ruling on the cases of three gay African men – from Sierra Leone, Uganda, and Senegal – who were seeking asylum in the Netherlands. The Dutch Supreme Court had requested the Court of Justice for clarification on how to apply EU laws.

The Supreme Court said it will now proceed with the asylum cases and others brought on the same grounds since the cases were sent to Luxembourg in April 2012.

International treaties say people must prove they have a "well-founded fear" of persecution for reasons of race, religion, ethnicity or political opinion if they are to obtain asylum.

The court said it will be up to Europe's national authorities to determine whether the situation in an applicant's home country amounts to persecution, especially whether gay citizens are indeed sentenced to prison terms there. Many countries with anti-gay laws rarely apply them.

However, it still remains unclear how national asylum authorities should check a person's claim of being homosexual.

The Dutch Supreme Court in March also referred that problem to the judges, asking what the limits are for the "method of assessing the credibility of a declared sexual orientation" under EU laws. But the European Court of Justice isn't expected to rule on that issue before next year.

Human rights experts applaud the court’s ruling as a significant step in the right direction for LGBT refugees, but note that the mere existence of anti-gay laws – even if they are not applied – can affect gay citizens’ well-being.

“I do think the court should have perhaps used language in its decision that recognizes the fact that in some cases the mere existence of a law can constitute persecution,” said Neela Ghoshal, Senior Researcher on LGBT rights for Human Rights Watch in Nairobi.

Ghoshal, speaking to Al Jazeera while on assignment in Cameroon, noted that many citizens are evicted from their homes, for example, because landlords fear harboring a gay tenant. “The fact that people aren’t getting arrested doesn’t mean the law isn’t having an impact.”

And don’t expect the ruling to open the floodgates for gay refugees to Europe, Ghoshal added, noting that gay Africans have been granted asylum on a case-by-case basis due to anti-gay persecution in their home countries for quite some time.

But the court has set an important precedent by formally recognizing that anti-gay laws can prevent a refugee from returning home, thereby fulfilling the requirements for asylum.

The Netherlands, traditionally on the forefront of gay rights issues, has been critical of anti-gay laws around the world, especially in Russia.

On Tuesday, Dutch Foreign Minister Frans Timmermans denounced a new Russian law banning "pro-gay propaganda" among minors and said the violation of gay rights in Russia could be grounds for asylum in the Netherlands.

"The anti-homosexuality propaganda law has a stigmatizing and discriminatory affect and contributes to a climate of homophobia," Timmermans wrote in a strongly-worded letter to Dutch parliament.

"The circumstances of the LGBTs, including the possible consequences of the new law, will of course be considered in evaluating asylum requests," he said.

Al Jazeera with wire services. Michael Pizzi contributed reporting.