The European Court of Justice (ECJ) ruled that gay and lesbian citizens of African countries that jail homosexuals can be granted asylum in any European Union (EU) member state.
The ruling came after the Netherlands petitioned the court to issue guidance on three gay Africans who had sought asylum behind Dutch borders. The ECJ in their decision ruled that gay Africans can seek asylum from any country where they are jailed for being gay. Many African countries currently outlaw homosexuality, but the court stressed that asylum seekers must be from those nations that actually jail homosexuals in practice. The ECJ left it to individual EU member states, however, to decide “whether, in the applicant’s country of origin, the term of imprisonment… is applied in practice.”
The ECJ is the highest legal authority in Europe and ensures that EU law is applied uniformly in all member-states. The court also settles disputes between member-states and institutions. As the Washington Post’s World Views blog notes, the Netherlands previous standard for asylum seekers was whether they faced torture or death in their home countries. In seeking clarification on EU asylum laws, the Dutch authorities referred the matter to the ECJ, allowing for today’s ruling to be issued.
In June, Amnesty International published a report on the growing discrimination — and often violence — against gays in sub-Saharan Africa. According to Amnesty, homosexuality is illegal in 38 countries in the region. Though, as the ECJ suggested, not every country enforces these laws, Amnesty explains how the “rising tide of homophobia means that LGBTI people face increasing harassment, persecution and denigration across the continent, with activists reporting attacks, arbitrary arrests, evictions and blackmail.” The fact that homophobia is enshrined in law can only encourage extra-legal homophobic persecution and violence in those countries.
In some states, outlawing homosexuality is not enough. Uganda has spent the past year considering the infamous “Kill the Gays” bill that would authorize the death penalty for cases of “aggravated homosexuality.” The Amnesty report also noted campaigns to toughen punishments for consensual same-sex relations in Burundi, Liberia, and Nigeria, among other countries. With help from the ECJ, victims of these draconian laws can now be viewed by EU members as refugees.
While the ruling makes it easier for African victims of homophobia to find asylum in Europe, many are still left vulnerable to anti-gay laws and sentiments. In a statement, Amnesty International’s held that the ruling did not go nearly far enough. “The Court skirted around the real issue in this case and missed a key opportunity to state clearly that to criminalize consensual same-sex conduct ultimately amounts to criminalizing people for who they are and, therefore, amounts to persecution per se, regardless of how often sentences of imprisonment are enforced,” said Sherif Elsayed-Ali, Amnesty International’s Head of Refugee and Migrants’ Rights. The ruling also does not address the methods used to determine whether asylum seekers are actually gay, such as in the United Kingdom where authorities have reportedly demanded photographic and video evidence of “highly personal sexual activity” from asylum seekers to prove their claim.
Chris Butterfield is an intern at ThinkProgress