Persecution for reason of sexual orientation: X, Y and Z

Publishers Abstract:

In X, Y and Z, the ECJ addresses a delicate matter in contemporary asylum law. The Court makes three key points. First, persecution for reason of sexual orientation can be brought within the refugee definition. Second, mere criminalization of homosexual activity does not amount to persecution, but the actual application of penal sanctions does. And third, it cannot reasonably be expected that an asylum applicant conceals his homosexuality in his country of origin in order to avoid the risk of persecution.

The last point endorses the 2011 judgment of the UK Supreme Court in HJ and HT. The UK Supreme Court found that it can never be tolerable for a homosexual asylum seeker to be forced to live discreetly. The ECJ does not, however, directly engage with divergent legal approaches in the Member States and that of the European Court of Human Rights on the issue of concealment.