Persecution Due to Sexual Orientation as a Reason for Asylum in the Jurisprudence of the CJEU

Abstract

Sexual orientation is both normal expression of human sexuality and immutable, is generally not chosen and highly resistant to change and represents each person’s capacity for profound emotional, affectional and sexual attraction to individuals of a different gender or the same gender or more than one gender.

Against the backdrop of a historical, even biblical, criminalisation that continues even today in 65 countries around the world, those with a homo- or bisexual orientation, or those who more recently identify themselves as members of the lesbian, gay, bisexual and transgender (LGBT) community, cannot feel safe and secure in their countries of origin that penalise such sexual acts criminally or even with capital punishment.

Discrimination on grounds of sexual orientation was first recognised by the European Court of Human Rights only in 1981; today, no European state criminalises homosexual acts or behaviour.

In the last two decades, in the framework of the common asylum policy promoted by the European Union, sexual orientation has started to be invoked as a ground for asylum by refugees from countries that criminalise so-called ‘unnatural sex’. The current study seeks to capture the opinion of the Court of Justice of the European Union expressed in this area through three preliminary rulings adopted between 2013 and 2018 in order to formulate some useful conclusions for both scholars and practitioners in the field of asylum procedures.