Asylum without hiding

On 7 November 2013, the Court of Justice of the European Union in Luxembourg delivered a ruling that changed asylum practice throughout Europe. It concerned three men from Sierra Leone, Uganda and Senegal. All three were gay, and all three came from countries where same-sex acts are criminalised. They had sought protection in the Netherlands and been turned down. The Dutch Council of State therefore wanted to know how European refugee law should be interpreted in such cases.

On key points, the answer was clear. Homosexual people from such states form a "particular social group" and can therefore be recognised as refugees. Even more important was a second idea: sexual orientation is so fundamental to a person's identity that nobody may be forced to renounce it. Authorities may therefore not expect refugees to hide their homosexuality in their home country or to exercise particular restraint in order to avoid persecution.

It was precisely on this argument that many applications had previously been rejected, including in Germany. Gay men and lesbians were essentially advised simply to live discreetly. That was now over, and binding on all member states.

The joy was not entirely unclouded, however. The court held that a criminal law alone does not constitute persecution. Only when prison sentences are actually imposed does persecution exist. The International Commission of Jurists therefore spoke of a glass half full. Those who experience daily harassment, blackmail or violence without a sentence ever being handed down may slip through the net.

Even so, the decision is still considered a milestone today. It made clear that protection must not depend on someone making themselves invisible.