Opinion of the Advocate General — ECLI:EU:C:2013:474
Date: 2013-07-11
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 7 November 2013 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Risk of persecution — Reasons for persecution — Concept of particular social group — Persons sharing the same sexual orientation — Included — Conditions (Council Directive 2004/83, Art. 10(1)(d)) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or for subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Risk of persecution — Concept of ‘persecution’ — Term of imprisonment for homosexual acts — Punishment which is disproportionate or discriminatory — Included — Individual assessment of the facts and circumstances (Council Directive 2004/78, Arts 4(3)(a) and 9(1) and (2)(c)) 3. Border controls, asylum and immigration — Asylum policy — Refugee status or for subsidiary protection status — Directive 2004/83 — Conditions for granting refugee status — Risk of persecution — Homosexual acts punished by a term of imprisonment — Obligation on applicant for asylum to conceal his homosexuality — None (Council Directive 2004/83, Arts 9(1) and 10(1)(d)) 1. Article 10(1)(d) of Directive 2004/83 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. Article 10(1) of the directive, which defines what constitutes a particular social group, membership of which may give rise to a genuine fear of persecution, requires, inter alia, that two cumulative conditions be satisfied. First, members of that group must 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. Second, that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. As far as concerns the first of those conditions, it is common ground that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. That interpretation is supported by the second subparagraph of Article 10(1)(d) of Directive 2004/83, from which it appears that, according to the conditions prevailing in the country of origin, a specific social group may be a group whose members have sexual orientation as the shared characteristic. The second condition assumes that, in the country of origin concerned, the group whose members share the same sexual orientation has a distinct identity because it is perceived by the surrounding society as being different. (see paras 44-47, 49, operative part 1) 2. Article 9(1) of Directive 2004/83 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the mere fact that homosexual acts are criminalised does not, in itself constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. Where an applicant for asylum relies on the existence in his country of origin on legislation criminalising homosexual acts, it is for the national authorities to undertake, in the course of their assessments of the facts and circumstances under Article 4 of Directive 2004/83, an examination of all the relevant facts concerning that country of origin, including its laws and regulations and the manner in which they are applied, as provided for in Article 4(3)(a) of that directive. In undertaking that assessment it is, in particular, for those authorities to determine whether, in the applicant’s country of origin, the term of imprisonment provided for by such legislation is applied in practice. It is in the light of that information that the national authorities must decide whether it must be held that in fact the applicant has a well-founded fear of being persecuted on return to his country of origin. (see paras 58-61, operative part 2) 3. Article 10(1)(d) of Directive 2004/83 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member State are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation. In that connection, requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it. It follows that the person concerned must be granted refugee status, in accordance with Article 13 of the directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) of the directive. The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect. (see paras 70, 75, 76, operative part 3)