European judgments look to address anti-gay discrimination
An asylum seeker cannot be expected to conceal his homosexuality in his country of origin to avoid persecution, court rules
The court also ruled that an asylum seeker could not be expected to conceal his homosexuality in his country of origin to avoid persecution.
Ireland was one of the first countries in the world to specifically include persecution due to sexual orientation as grounds for asylum – in the 1996 Refugee Act – so the ruling in relation to social grouping should not alter the position here.
What is important, according to practitioners, is the element of the ruling that states a person cannot be required to hide their sexual orientation to avoid persecution in their home country.
Ann Campbell, project manager with the Irish Refugee Council, says the judgment is welcome for the clarity it brings to the law, in particular “the clear statement by the CJEU that it is unreasonable to expect an asylum seeker to hide or exercise restraint in expressing their sexual orientation in order to avoid persecution”. But she has some misgivings about it. The mere existence of legislation criminalising homosexual acts does have far-reaching legal, social, and cultural implications, she says.
“Legislation can in fact, force individuals to hide their sexuality in order to avoid exclusion, alienation, widespread discrimination and violence amounting to persecution, regardless of whether criminal sanctions are “actually applied” as required by the court,” she says.
Barrister Siobhán Stack, who specialises in asylum cases, says the purpose of the court is to achieve clarity and uniformity throughout the member states. The judgment is totally consistent with international human rights she says and is welcome for the clarity it brings.
“It’s an important principle; administrations cannot say a person should go back to their own country and conceal their homosexuality,” she says. “This is an important recognition of gay rights.”
Fergus Ryan, law lecturer at the Dublin Institute of Technology, says the court’s decision was welcome, but was not entirely out of the blue. The point had been established in the British courts that gay and lesbian people should not be required to remain discreet to avoid persecution in their home country. And the Irish courts were already “leaning that way”.
In particular, Mr Justice Gerard Hogan, in SA (Algeria) v Minister for Justice, commented that a gay or lesbian person could not “be expected to sublimate or conceal their very identity in order to escape the wrath of a state or societal forces condoned by the state”.
“What is key about the CJEU is that gay and lesbian people are perfectly entitled to be open about their lives and shouldn’t be forced to remain in the closet,” he says.
“This will not open the floodgates; people will still have to establish they are gay or lesbian and they are being persecuted – both can be difficult to establish.”