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Advocate General to CJEU, Eleanor Sharpston, has delivered her opinion in the joined cases related to asylum claims by three homosexual men. According to the AG homosexual men can form a particular social group for the purposes of Qualification Directive, yet criminalisation of homosexuality is insufficient to demonstrate persecution. The courts would need to address the likely practical steps to be taken by the respective governments and the severity and frequency of measures applied.

In the joined cases C-199/12, C-200/12 and C-201/12, X,Y,Z v Minister voor Immigratie, Integratie en Asiel, the appellants are three homosexual men from Sierra Leone, Uganda and Senegal. Homosexual acts are criminal offences in Sierra Leone and are subject to a minimum term of imprisonment of 10 years up to a maximum of life. In Uganda a person found guilty of an offence described as ‘carnal knowledge against the order of nature’ is subject to a term of imprisonment. The maximum penalty is life. In Senegal a person convicted of committing certain homosexual acts is to be sentenced to a term of imprisonment of between one and five years and a fine of between XOF100 000 and XOF 1 500 000 (approximately EUR 150 to EUR 2000).

AG notes that within the European Union, legislation which criminalises and imposes sanctions for homosexual acts in private between consenting adults is now considered contrary to the ECHR. Across the Member States, any punitive measures, whether applied or declared, would thus constitute an infringement of an individual’s fundamental rights. However, in the words of the AG, “the aim is not to export these standards” – such an export might be regarded as a form of cultural imperialism. Rather, Qualification Directive restricts the recognition of refugee status to those individuals who run a real risk of being exposed to denial of basic indefeasible rights such as the right to life (Article 2 ECHR), the right not to protection from torture and forced labour (Articles 3 and 4 respectively), and the individual’s right not to be punished without prior due legal process (Article 7).

Outside the European Union, criminalisation of homosexuality does not in itself constitute persecution. National courts dealing with asylum claims based on homosexual orientation have to consider the circumstances pertaining to the applicant’s country of origin and assess the risk and frequency of prosecution and the severity of sanctions normally applied.

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