The European Union’s (EU) highest court has ruled that the fear of imprisonment for being homosexual in African countries is now to be considered justifiable grounds for asylum in the EU countries.
The ruling follows a request for advise from The Netherlands about three gay refugees seeking asylum from Uganda, Sierra Leon and Senegal, recently.
According to the European Court of Justice (ECJ) the existence of the laws that could lead to imprisonment of homosexuals, “may constitute an act of persecution per se” if they are routinely enforced.
The Luxembourg based court stated that it was unreasonable to expect gay people to hide their sexual orientation in their home countries in order to avoid persecution.
Concealing their sexuality would amount to renouncing a characteristic fundamental to a person’s identity, the court asserted.
In the case of the three men seeking asylum in The Netherlands the application was initially denied on the grounds that the African men could exercise restraint to avoid persecution. However The Dutch Council of State, an advisory board to the government, later took the case to the ECJ for a final ruling.
Despite the ruling it is up to the authorities in sovereign countries to decide whether, in the applicant’s country of origin, the term of imprisonment is applied in practice.
The ECJ says laws specifically targeting homosexuals do make them a separate group, however, a ban on homosexual acts alone, is not grounds to grant asylum.
International law says that a social group with a well founded fear of persecution can claim asylum status if the persecution amounts to a severe violation of human rights.
Homosexual acts are considered a taboo and unlawful in most African countries and Amnesty International has said homosexuality is increasingly criminalized across Africa, with 36 nations having laws against same-sex conduct.
Nations that consider homosexual acts illegal include Nigeria, Kenya, Botswana, Zimbabwe and Uganda among many others.
Amnesty International has also said that homophobic attacks have reached dangerous levels in Sub-Saharan Africa and that this relates to the toxic message that lesbian, gay, bisexual and transgender people are criminals and anti-social.
A number of African leaders are on record as having said homosexuality is un-African and something that cannot be tolerated. The Zimbabwean leader went to the extent of saying that homosexual people are worse than pigs and dogs.
In 2010 the UK Supreme Court ruled that two gay men from Iran and Cameroon have the right to asylum in the UK, after they were initially told by the home office that they could safely return if they were discreet about their sexual orientation.
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