Amnesty International and the International Commission of Jurists reacted angrily today to the decision by a key European court to refuse to rule that the criminalisation of consensual same-sex activity constitutes “persecution” for the purposes of EU asylum law.  



Three asylum claims had been lodged in the Netherlands and they were considered together in X, Y and Z v Minister voor Immigratie, Integratie en Asiel in a landmark case at the Luxembourg-based Court of Justice of the European Union (CJEU).



The trio are from Senegal, Sierra Leone and Uganda – all nations that criminalise sex between men. They claimed that they have a well-founded fear of persecution based on their undisputed same-sex sexual orientation.



A key question facing the Court was whether “the criminalisation of homosexual activities and the threat of imprisonment” constitutes “persecution” under EU asylum law. 



The Court did affirm that the prosecution and imprisonment of a person for such conduct would constitute persecution, but it went on to deem that the mere threat of imprisonment was not enough to be considered persecution.



Amnesty’s Head of Refugee and Migrants' Rights, Sherif Elsayed-Ali, said:



“The Court skirted around the real issue in this case and missed a key opportunity to state clearly that to criminalise consensual same-sex conduct ultimately amounts to criminalising people for who they are and, therefore, amounts to persecution per se, regardless of how often sentences of imprisonment are enforced.”



According to the two organisations, the mere existence of laws that criminalise consensual same-sex sexual activities – and which thus effectively criminalise individuals for their sexual orientation and who they are – also runs contrary to international human rights law, as well as a growing raft of national court decisions.



Senior Legal Adviser at the International Commission of Jurists,” Livio Zilli, said:



“The Court should have found that these laws, even when they have not recently been applied in practice are capable of giving rise to a well-founded fear of persecution in lesbian, gay, bisexual transgender and intersex (LGBTI) people, and who accordingly should be recognised as refugees when they apply for asylum.”



Amnesty has extensively documented how these laws provide state actors with the means to perpetrate human rights violations and contribute to an atmosphere of state-supported homophobia. They enable harassment and abuse, and deny LGBTI individuals – or those perceived to be LGBTI – effective state protection to which they are entitled under international human rights law.