EU Adviser Says Gay Africans Deserve Refuge

     (CN) – Three gay African men afraid of returning to their home countries because of persecution should be allowed to remain in the EU, an adviser to Europe’s highest court said Thursday.
     The men – known only as X, Y and Z – hail from Sierra Leone, Uganda and Senegal, respectively. They sought refugee status in the Netherlands, claiming that had a well-founded fear of persecution in their home countries because of their sexual orientation. In all three countries, homosexual acts are criminal offenses and carry severe punishments ranging from huge fines to life imprisonment.
     In fact, Uganda has been debating a bill since 2009 to broaden the criminalization of same-sex relations. The statute once included language prescribing the death penalty to offenders. Lawmakers have proposed extending the penalties to Ugandans who engage in same-sex relations outside of Uganda – providing for their extradition – and penalizing corporations, media organizations and nongovernmental organizations that support LGBT rights.
     Currently, 38 African nations have laws criminalizing homosexual acts. Sierra Leone punishes male offenders with life imprisonment, though lesbian activity is legal. In Senegal, all same-sex activity carries a one- to five-year prison sentence and fines of up to $2,600, the equivalent of 1.5 million West African CFA francs.
     European law based on the Geneva Convention extends refugee status to individuals who fear persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group. The law requires that the potential persecution be severe or repetitive enough that it constitutes a basic human rights violation.
     In the case of X, Y and Z, the Dutch Council of State asked the Court of Justice of the European Union to weigh in on whether homosexuality constitutes membership in a particular social group. It also questioned whether the threat of imprisonment qualifies as persecution warranting refugee status.
     Advocate General Eleanor Sharpston noted that neither the European Convention on Human Rights nor the Geneva Convention specifically reference a right to the expression of sexual orientation, but that the European Court of Human Rights has developed significant case-law defining the rights to private and family life.
     “It seems to me that at the heart of the national court’s questions is the determination of common criteria that should apply when identifying those persons genuinely in need of international protection who claim refugee status under the directive on the grounds that they are homosexual,” Sharpston wrote.
     She continued: “The national court asks whether applicants for refugee status who have a homosexual orientation can form a particular social group for the purposes of EU law. All those who submitted observations to the court (apart from the United Kingdom, which did not address this point) agree the answer to that question should be ‘yes.’ I too concur with that view.” (Parentheses in original.)
     Sharpston also addressed the Dutch court’s question regarding potential differences in the treatment of X, Y and Z should they be returned to their home countries. Specifically, she noted while it is a crime to be gay person in Uganda, Sierra Leone and Senegal punish only those guilty of engaging in certain gay sex acts.
     “Within the European Union, there has been a shift in approach in as much as legislation which criminalizes and imposes sanctions for homosexual acts in private between consenting adults is now considered to be contrary to the human rights constitution,” the adviser wrote. “It is plain therefore that across the member states such measures would today constitute an infringement of an individual’s fundamental rights, whether they were actively applied or not. However, the goal of the directive is not to grant protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the constitution in his country of origin. To put the same point another way: the aim is not to export those standards. Rather, it is to restrict the recognition of refugee status to those individuals who may be exposed to a serious denial or systemic infringement of their most fundamental rights, and whose life has become intolerable in their country of origin.”
     Sharpston also acknowledged the difficulty in determining whether persecution qualifies as serious enough to warrant refugee status, given differing views on basic human rights in the EU and African nations. In these cases, criminal sanctions that result in prison terms count as serious persecution, the adviser found.
     “Considered in that light it is plain to me (even in the absence of detailed information concerning the characteristics of offenses relating to the applicants in the main proceedings and the specific penalties usually imposed for those offenses) that in a general sense the penalties imposed in Sierra Leone, Uganda and Senegal may potentially amount to punishment which is ‘disproportionate’ within the meaning of EU law,” Sharpston wrote (parentheses in original). “It is true that the statutory penalties for committing certain homosexual acts in Senegal are not as draconian as those in Sierra Leone or Uganda. Before reaching the conclusion that, for that reason, the threshold for an act of persecution under the directive is not satisfied, the national court should have regard to the risk of one-off or repeated prosecution and the sentence imposed if a prosecution is successful.”
     Sharpston finally rejected attempts by the Dutch Council of State to define sexual orientation – and subsequent refugee status – by the extent of “public and private expression of homosexual orientation.”
     “The national court explains that the Netherlands’ authorities consider that homosexual activities merit the same protection as heterosexual activities,” she wrote. “However, I do not consider that the applicant’s activities should be the focal point of the assessment. The directive is essentially not concerned with the conduct of the person seeking refugee status. Rather, it is concerned with possible acts of persecution and with the reasons therefore, that is with the active conduct of possible actors of persecution, rather than with the everyday behavior of the possible victim.”
     “Should homosexual applicants for refugee status be expected to return home and exercise restraint in their country of origin? I do not think so,” Sharpston concluded.
     Sharpston’s opinion is not binding, but the court justices will take under advisement and deliver their judgment at a later date.

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