Case summaries

There is a well-founded fear of persecution based on membership of a particular social group in the case of an applicant who, even though he is not gay, he is perceived as such by his community, his family and the authorities in his country of origin. 

An applicant from Kosovo claimed persecution due to his homosexuality. His application was rejected. The Administrative Court dismissed the action, but the Supreme court annulled the judgement and returned the case to the new procedure. An act of persecution does not depend on the applicant reporting persecution (in this case rape) to the police of their country of origin. 

A person, with a well-founded fear, within the meaning of the Geneva Convention, of being harmed by their family if they return to their country of origin because they are a member of a particular social group and are unable to rely on effective protection from the state, may be entitled to claim refugee status.  

When assessing an asylum application, a judge shall consider as relevant both the applicant’s homosexuality as well as the fact that homosexuality is considered a crime in the country of origin of the applicant. Moreover, the judge shall base its reasoning not only on the assessment of credibility of the applicant, but also on the actual situation in the country of origin, which has to be verified through its own power of investigation.

When verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter of Fundamental Rights.

The evaluation of an asylum application should not be based on stereotyped notions and should include an individualised assessment taking into account the applicant’s personal circumstances, vulnerability in particular.

Not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility.

ECtHR majority rules that the temporary return of a homosexual man from Sweden to Libya would not violate Article 3 as short term concealment of sexual orientation would be tolerable in order to reduce risk of persecution. 

LGBTI asylum seekers (1) may be members of particular social group, (2) cannot be expected to conceal or restrain their expression of sexual orientation to reduce risk of persecution. (3) All criminalisation does not per se amount to persecution, but imprisonment actually applied does.

This case involved a violation of the right to equal treatment of foreigners as a result of a rejection of the application for international protection and expulsion of the homosexual Applicant to Nigeria because of a failure by the decision-maker to make its own country determinations and to thoroughly examine the situation of homosexuals in Nigeria.

The case refers to an administrative appeal before the Supreme Court brought by the Appellant against the High National Court’s judgment denying the right to asylum and subsidiary protection.

The Appellant is a Cameroonian national.In the application he claims to be a minor and that the grounds for persecution was his sexual orientation.

The Supreme Court upheld the appeal and reversed the challenged judgment.Furthermore the Court ordered a reconsideration of the administrative procedure from the beginning, in order to provide the asylum seeker with legal assistance.

The CALL ruled that the discrimination or ill treatment suffered by homosexuals in Senegal did not amount to all homosexuals of Senegalese origin having reason to fear persecution in Senegal on the sole basis of their sexual orientation.