(CN) - Three gay African men afraid of persecution in their home countries can remain in the EU if the threat of reprisal is real, Europe's highest court ruled 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.
There are laws criminalizing homosexual acts in 38 African nations. 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.
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.
Earlier this year, an adviser to the Luxembourg-based high court opined that homosexuals who fear persecution in their home countries do belong to a particular social group under the Geneva Convention. She also suggested that any punishment the men might face if returned home would be considered "disproportionate" by EU standards, amounting to persecution under European law.
In its ruling Thursday, the high court noted that "it is common ground that a person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it."
The justices had little patience for the Dutch court's suggestion that the men could avoid persecution and live happily ever after in their home countries if they concealed their sexual orientation.
"It is important to state that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person's identity that the persons concerned cannot be required to renounce it," the high court wrote. "Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution."
The justices drew an analogy to religion, noting that no EU official would ask a refugee facing religious persecution to abstain from practicing his religion to return home.
"It follows that the person concerned must be granted refugee status where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution," the decision states. "The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect."
For a violation of human rights to rise to the level of persecution under the Geneva Convention, however, the threat of reprisal must be sufficiently serious.
"The mere existence of legislation criminalizing 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," the court wrote. "However, the term of imprisonment which accompanies a legislative provision 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."
It is up to Dutch officials to decide whether the home countries of X, Y and Z mete out punishment for violations of their antigay laws on a regular basis, and if those punishments amount to persecution, according to the ruling.The ruling notes that "the existence of criminal laws which specifically target homosexuals supports a finding that those persons form a separate group which is perceived by the surrounding society as being different."
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