The ICJ’s commentary analyses in detail the 7 November 2013 judgment of the Court of Justice of the EU (CJEU) in joined cases arising from three asylum claims asserting a well-founded fear of persecution based on same-sex sexual orientation.
Positively, in X, Y and Z v. Minister voor Immigratie en Asiel, the Court found that asylum applicants who have a same-sex sexual orientation and come from countries where consensual homosexual conduct is criminalized, form a particular social group for the purposes of EU refugee law.
Further, the Court’s recognition that sexual orientation is a characteristic so fundamental to one’s identity that one cannot be expected to renounce or conceal it, or to exercise greater restraint in its expression than heterosexuals, is welcome.
Likewise, the Court’s finding that the enforcement of a term of imprisonment that sanctions consensual homosexual acts must be regarded as a disproportionate or discriminatory punishment, and is thus persecutory, is a step forward, particularly given that in some EU countries this was hitherto not the case.
However, in some important respects this judgment represents a missed opportunity. The Court failed to clarify the inconsistency between secondary EU refugee law and the UNHCR’s authoritative interpretation of “a particular social group” in the Refugee Convention’s definition of a refugee.
Further, in choosing to maintain the narrow scope of the questions referred to it, the Court ended up with an unwarrantedly restrictive reading of EU refugee law, which ignores the numerous persecutory effects of criminalizing consensual same-sex sexual orientation or gender identity.
The Court missed a chance to state that these laws, even when they are not enforced in the sense that there exists a recent record of enforcement through the actual imposition of terms of imprisonment, have a persecutory effect, as they criminalize an essential characteristic of one’s identity.
The ICJ decided to publish this commentary for a number of reasons.
First, the CJEU plays an important role in shaping international refugee law jurisprudence.
Further, asylum applications based on a well-founded fear of persecution for reason of real or imputed sexual orientation and/or gender identity or expression are unfortunately likely to increase, both within the EU and beyond.
Moreover, the CJEU’s judgment in this case is likely to have a bearing on the determination of asylum claims premised on membership of other particular social groups.
Lastly, the implementation by the EU and its Member States of the recently “recast” Common European Asylum System will likely give rise to several new referrals to the Court, whose interpretation of the recast instruments will also depend on its asylum case law precedents, including the CJEU’s judgment in this case.