The ruling appears to clear the way for three asylum-seekers from Sierra Leone, Uganda and Senegal seeking asylum in the Netherlands, which asked the European Court of Justice for a ruling concerning the applications for refugee status under the Geneva Convention, the Court of Justice of the European Union in Luxembourg said in a release.
The three asylum-seekers, identified as X, Y and Z in the release, said they have a "well-founded" fear of being persecuted in their home countries because of their sexual orientation. Homosexual acts are crimes in Sierra Leone, Uganda and Senegal with penalties ranging from fines to life imprisonment.
The Netherlands Raad van State asked the Court of Justice for advice concerning whether asylum-seekers who are homosexual may be considered as a "particular social group" under the Geneva Convention. The court also was asked whether Dutch authorities should assess what constitutes an act of persecution against gay activities within that context, and whether the criminalization of gay activities in the applicant's country of origin amounts to persecution.
"[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," the court's release said. "In that connection, the court recognizes that the existence of criminal laws specifically targeting homosexuals supports a finding that those persons form a separate group [that] is perceived by the surrounding society as being different."
However, the Court of Justice ruled Thursday the mere existence of legislation criminalizing homosexual acts doesn't alone rise to the level necessary for a finding of persecution. However, a prison term that accompanies a country's anti-gay laws may constitute an act of persecution per se, provided that it is actually applied.
The court said Dutch authorities must examine all relevant facts concerning an applicant's country of origin, including its laws and regulations and the manner in which they are applied.
The court also said applicants for asylum can't be expected to conceal their sexual orientation in their country of origin to avoid persecution.