Germany - Administrative Court Frankfurt / Oder, 11 November 2010, VG 4 K 772/10.A
Keywords:
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
Refugee status was granted as the applicant was deemed at risk of persecution due to his homosexuality. The court found that homosexuals constitute a particular social group in Cameroon according to Section 60 (1) of the Residence Act / Art 10.1 (d) of the Qualification Directive. According to the Qualification Directive, sexual orientation does not only constitute an unchangeable characteristic, but is so fundamental to the identity of a person that he/she should not be forced to denounce it. That means that under the Qualification Directive it is no longer important if the applicant can persevere with abstinence in the long term. The punishment which the applicant would face due to homosexual acts in case of return does not simply constitute criminal prosecution, but is persecution in terms of Section 60 (1) Residence Act.
Facts:
The applicant was born in 1984. He is Cameroonian citizen. On 1 June 2009 he arrived in Germany and applied for refugee status. He explained that he was homosexual and two years before his departure he disclosed his sexual orientation.
Decision & reasoning:
According to the court, the applicant’s homosexuality was decisive. During the court hearing, he explained plausibly and consistently that he had become aware of his sexual orientation around four years ago. The court stated:
Homosexuals in Cameroon constitute a particular social group in terms of Section 60 (1) sentence (1) and sentence (5) of the Residence Act/Art. 10 (1) (d) of the Qualification Directive. According to Art. 10 (1) (d) of the Directive, which shall be applied in establishing whether a case of persecution pursuant to Section 60 (1) sentence 1 of the Residence Act applies (see Section 60 (1) sentence (5)), a particular social group can be composed of people who share the common characteristic of sexual orientation.
The former legal position, according to which homosexuals did not constitute a particular social group in terms of Art. 1 A (2) of the 1951 Refugee Convention is outdated. Under Art. 10 (1) (d) of the Qualification Directive it does not matter if homosexuality is "irreversible" in the sense that the person concerned cannot refrain from homosexual acts (see section Comments below).
Even if the applicant could refrain from homosexual acts for a long period with the utmost effort of will, this would only mean that his homosexuality is “reversible” within the meaning of the (former) case law of the Federal Administrative Court. However, he would still be a member of a particular social group, defined by their sexual orientation, because the suppression of his sexual orientation is exactly what is not required from the applicant according to the law, even if this were possible.
Homosexuals constitute a group that has a distinct identity in Cameroon, because they are perceived as being different by the surrounding society. The surrounding society is not ready to perceive people who live openly as homosexuals as equal citizens, but exclude them as being ‘alien’ and ‘different’.
Homosexual acts in Cameroon are criminalized, even among consenting adult males, and can be punished with a prison sentence between six months and five years according to Art. 347 of the Criminal Act.
Outcome:
The court ordered the authorities to grant refugee status.
Subsequent proceedings:
Unknown
Observations/comments:
The Administrative Court underlined that the former case law of the Federal Administrative Court prior to the entry into force of the Qualification Directive, which provided that homosexuals do not constitute a social group in terms of Art. 1A of the Refugee Convention, is no longer applicable.
In a landmark decision of 15 March 1988, the Federal Administrative Court (9 C 278/86) held that it was decisive whether the applicant has an irreversible homosexual orientation (irreversible Homosexualität). A mere inclination (blosse Neigung), according to which the person concerned could choose to act or refrain from acting as s/he pleases, was not decisive. Only the inescapable fateful fixation on homosexual behaviour or urge fulfilment - “unentrinnbare schicksalhafte Festlegung auf homosexuelles Verhalten bzw. Triebbefriedigung”- making it impossible not to engage in same sex behaviour was considered as a ground for granting asylum.
See also the study ‘Fleeing Homophobia: Asylum claims related to sexual orientation and gender identity in Europe, Amsterdam, September 2011, the (former) case law of the Federal Administrative Court regarding homosexuals is outlined in Chapter 6.3.3, page 50).