Greece - Piraeus Administrative Court of Appeal, Decision A401/2019, 12 June 2019

This case concerns a national from Ghana who crossed the Greek borders on 06.02.2017, as an unaccompanied minor, and applied for refugee status on 03.03.2017. He claimed to have been threatened in his country of origin by a local group of people called “Safety Empire” because of his sexual orientation. He claimed having engaged in a sexual relationship with a man for economic purposes, and that this was the reason that the group attacked him twice and further circulated a video calling for him to be killed. He added that LGBT relationships are prohibited by law in Ghana so he could not look for protection under national authorities.

The District Asylum Office of Lesbos rejected his application. He then appealed against this administrative decision and unsuccessfully asked for the review of his application. The 6th Independent Committee for Refugees of Hellenic Ministry of Migration Policy refused to grant him refugee status and did not recognize eligibility for subsidiary protection status.

On 16.11.2018 he filed an application to appeal the abovementioned decision before the Administrative Court of Piraeus.

The Appellate Court held the application admissible and annulled the previous decision.

The Court principally agreed with the conclusion of the Appeals Committee that, considering the definition of sexual orientation according to the Guidelines of the UN High Commissioner for Refugees related to sexual orientation, the appellant did not engage in same-sex relationships in a way that the authorities could consider it as an element of his personal identity.

However, the Court further noted that even if the appellant cannot be identified as homosexual, the mere fact that he is perceived to be homosexual by a group of people (“safety empire”) or by the local authorities, in a country where homosexuality is prohibited, is sufficient in itself to establish reasonable fear of prosecution and thus trigger refugee status protection.

The Appellate Court, in order to decide if there is legal ground for making an application for protection under the refugee status,  has focused on whether there was a real threat of the appellant’s life or threat of being treated in an inhuman or degrading way rather than whether he was actually homosexual or not. The social context of Ghana, which opposes freedom in sexual orientation, was a decisive factor.

See also:  Wendy Isaack, ‘No Choice but to Deny Who I Am’, Human Rights Watch Report on Violence and Discrimination against LGBT People in Ghana, January 8, 2018 [online] Available at: https://www.hrw.org/report/2018/01/08/no-choice-deny-who-i-am/violence-and-discrimination-against-lgbt-people-ghana [Accessed 3 Feb. 2020]

• Ghana has a mixed record on LGBT people. It criminalizes “unnatural carnal knowledge” in section 104 (1) (b) of its Criminal Offences Act.
• Even though proactive steps had been taken by local authorities, including providing human rights training workshops to help ensure their protection, however, LGBT people are frequently victims of physical violence and psychological abuse.
• This report is based on interviews conducted between December 2016 and February 2017 in different regions in Ghana, including 114 Ghanaians who self-identify as LGBT.
• Human Rights Watch found that “the criminalization of adult consensual same-sex conduct contributes to a climate in which violence and discrimination against LGBT people is common”.