LUXEMBOURG (CN) — Austria was wrong to not give an Iraqi refugee a second chance at asylum after he revealed he was gay, the European Union’s highest court held Thursday.
The European Court of Justice found that an Iraqi man who applied for asylum in Austria – initially on the grounds that he had refused to fight in the military, and then on the basis of his sexuality – should have been given a second opportunity to present his asylum claim.
XY, as he is identified in court documents, first applied for asylum in Austria in 2015, claiming that he feared for his life as a Shia Muslim who refused to fight for a Shiite militia. That application was rejected in January 2018.
In December 2018, he filed a second application, claiming that it was unsafe for him to return to Iraq because he is gay. The Austrian authorities rejected that claim as well. Under European law, subsequent claims for asylum can only be made if new information that was not given at the time of the first claim is presented.
The man appealed, arguing that he was unaware it would be safe for him to declare his sexual orientation in Austria. The Austrian Federal Administrative Court referred the matter to the Luxembourg-based Court of Justice, asking whether his sexual orientation, which was known at the time of the first asylum application but not declared, would justify new consideration under EU asylum law.
The five-judge panel held that the new information does necessitate a new examination, assuming the applicant was unable to provide the information through no fault of their own.
The EU Asylum Procedures Regulation says that applicants are entitled to a second consideration if there are “new elements or findings which have arisen.” The court found that this includes “elements or findings that existed before the termination of the procedure but which the applicant has not invoked.”
The EU's top court further found that reopening such a case cannot be subject to a time limit. At just two weeks, Austria has one of the shortest time frames for filing a follow-up application for asylum. Other countries in Europe, such as Germany, give asylum seekers three months to make subsequent requests.
While the court suggested the man has a reasonable chance of gaining asylum under his second application, Austria has a history of rejecting gay refugees.
In 2018, Austrian immigration authorities rejected the asylum application of an 18-year-old Iraqi man for not being gay enough. “The way you walk, act and dress does not show even in the slightest that you could be homosexual,", authorities wrote in his official reject letter. Two days later, a 27-year-old gay Iraqi man was also rejected for asylum on the grounds that his mannerisms were too “girlish.”
In addition, during the chaos at the Kabul airport after Afghanistan fell to the Taliban last month, Austrian Chancellor Sebastian Kurz said in an interview his country wouldn’t take in any Afghan refugees.
Follow @mollyquell
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Minnesota governor appoints two Supreme Court justices April 22, 2024 -
