Europe: Countries that accept fear of persecution due to sexual orientation as a valid ground for refugee status
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 2 October 2002 |
| Citation / Document Symbol | ZZZ39153.E |
| Reference | 2 |
| Cite as | Canada: Immigration and Refugee Board of Canada, Europe: Countries that accept fear of persecution due to sexual orientation as a valid ground for refugee status, 2 October 2002, ZZZ39153.E, available at: https://www.refworld.org/docid/3f7d4e4123.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Austria
Austria accepts fear of persecution due to sexual orientation as a valid ground for refugee status (CE 25 Feb. 2000). According to a 1998 report of the European Region of the International Lesbian and Gay Association (ILGA-Europe), "the explanatory notes to the 1991 Asylum Act ... clearly stat[e] that persecution based on sexual orientation can constitute a reason to flee and thus a reason to be granted political asylum in Austria" (June 1998, 33).
As of 1998, there had been no known cases in which asylum was granted solely on the basis of persecution due to sexual orientation (ibid.). However, according to the report,
[T]hree gay men ... were granted refugee status in the past. ... The reasons given in all three positive appeal decisions did not mention the persecution because of homosexuality but this was the only additional reason put forward by those men after their initial applications for asylum had been rejected. Obviously, the authorities did not want to create any precedent (ibid.).
Belgium
Sexual orientation can constitute a ground for granting political asylum in Belgium "if a person is in danger of ill-treatment in his/her country of origin within the meaning of Article 3 ECHR [European Convention on Human Rights]" (CE 6 June 2000). In Belgium, "[o]ne has to prove that one has been a victim of homophobic violence or repression. In the context of a repressive immigration policy, a lot of these political asylum cases are being rejected" (IGLA-Europe June 1998, 36).
Bulgaria
According to a 1997 report published by the European Legal Network on Asylum (ELENA), "[t]he ground of 'membership of a particular social group' has not been considered for granting refugee protection" in Bulgaria (June 1997).
Czech Republic
Sexual orientation can constitute a ground for granting political asylum in the Czech Republic "if a person is in danger of ill-treatment in his/her country of origin within the meaning of Article 3 ECHR [European Convention on Human Rights]" (CE 6 June 2000).
In January 2000, new asylum legislation took effect which now allows for the granting of refugee status to a foreigner "who risks persecution as a member of a specific social group" (ibid.).
Denmark
"Persecution for reasons of sexual orientation is not explicitly stated as a ground for refugee status in the Danish Aliens Act" (ELENA June 1997), but according to ILGA-Europe, "Denmark follows the rules and regulations outlined in the 1951 Convention regarding refugees" (June 1998, 40). The report goes on to state that
A number of gays and lesbians have been granted refugee status in Denmark, but the persecution because of their homosexuality has never been stated as the main reason for these decisions, some other reason/excuse has always been found (ibid.).
Finland
Finland recognizes persecution due to sexual orientation as a valid ground for refugee status (ibid., 43). In a 1993 decision, "the Administrative High Court granted a Finnish residence permit to a Russian national partly because of the situation of homosexuals in Russia and partly because of his common-law relationship with a Finnish man" (ibid.). The Research Directorate was unable to find any mention of other such cases among the sources consulted.
France
According to ELENA, "[t]here has been little jurisprudence concerning the category of social group. In many cases the issue of sexual orientation is taken into consideration but decisions are made on other factors" (June 1997).
Persecution based on one's membership to a particular social group is always considered to be a matter of political asylum in France (ILGA-Europe June 1998, 47). It is for this reason that "homosexuals persecuted only on the grounds of their sexual orientation have never been granted asylum in France. The only known cases concerned homosexuals who were active members in an organisation (including a lesbian and gay group)" (ibid.).
Germany
Germany accepts fear of persecution due to sexual orientation as a valid ground for refugee status only in exceptional cases, where one is at risk in his or her home country because of his or her homosexuality (ibid., 51).
Greece
Greece accepts fear of persecution due to sexual orientation as a valid ground for refugee status (CE 25 Feb. 2000; ILGA-Europe June 1998, 57). As of June 1998 however, there had been no known cases of this type (ibid.).
Hungary
Sexual orientation can constitute a ground for granting political asylum in Hungary "if a person is in danger of ill-treatment in his/her country of origin within the meaning of Article 3 ECHR [European Convention on Human Rights]" (CE 6 June 2000).
Information on whether there have been any such cases in Hungary could not be found among the sources consulted by the Research Directorate.
Ireland
Section 2 of the 1996 Refugee Act of Ireland defines a refugee as a person who, among other things, "has a well founded fear of being persecuted for reasons of ... membership of a particular social group. ... Membership of a 'particular group' is defined in the Act as including a group based on sexual orientation" (ILGA-Europe June 1998, 62). This information is corroborated by a research paper entitled "Irish Refugee Policy," which has been published on the website of the Irish Centre for Migration Studies (22 May 2000).
Italy
Italy does not accept fear of persecution due to sexual orientation as a valid ground for asylum (ILGA-Europe June 1998, 67). According to ILGA-Europe,
The first known attempt to present "sexual orientation" in this manner occurred in 1994 in Florence and involved the local gay and lesbian association Arciagay Arcilesbica Firenze. The foreigner requesting asylum on these grounds was a Tunisian citizen who was ultimately forced by health problems to return to Tunisia and was thus unable to pursue his application. In any event, the first official response had been rejection (ibid.).
Latvia
In a 2000 report, the Committee on Migration, Refugees and Demography of the Council of Europe listed Latvia as being among those countries in Europe that "already explicitly recognise in their asylum law or practice that lesbians and gay men constitute 'members of a particular social group', in the wording of the 1951 United Nations Convention relating to the Status of Refugees, or have granted asylum to lesbians and gay men on 'humanitarian grounds'" (25 Feb. 2000).
The Netherlands
The Netherlands recognizes sexual orientation as "a ground for membership of a specific social group within the definition of a refugee in the 1951 Geneva Convention" (CE 6 June 2000). According to the Committee on Legal Affairs and Human Rights of the Council of Europe,
The status conferred by the convention can be secured in three situations: where asylum seekers are persecuted on the ground of sexual orientation; where persecuted on the ground of overt homosexual conduct; where discriminated against on the ground of sexual orientation (ibid.).
Norway
According to the Norwegian Refugee Council, "the Norwegian government introduced more liberal guidelines for granting asylum" in January 1998 (n.d.). As a result of these guidelines, Norway now accepts "persecution on the grounds of gender or sexual orientation, as well as ... persecution from non-state actors" as a valid ground for refugee status (ibid.). In addition, "the government has decided that the burden of proof should, to a greater extent, benefit the asylum seeker in the assessment of individual claims for refugee status" (ibid.).
Portugal
Portugal does not specifically recognize persecution due to sexual orientation as a valid ground for refugee status, and according to the 1998 ILGA-Europe report, "[t]here are no known cases of persons being granted or denied refugee status on the basis of sexual orientation" (June 1998, 77). However, according to the report,
Portuguese law does ... state that any person facing a life-threatening situation, a death sentence or life imprisonment in another country may not be deported. For such people, as long as they can prove the existence of this life-threatening situation, asylum is granted automatically. Again, it is not known whether this law has been put to the test in the case of sexual orientation (ibid.).
Romania
Until 1995, homosexuality was entirely illegal in Romania (ELENA June 1997). In July 1994, the Constitutional Court of Romania partially decriminalized homosexuality by ruling that criminalizing "sexual relations between freely consenting adults" was "unconstitutional" so long as these relations "were not committed in public or did not produce a public scandal" (ibid.). According to ELENA,
Since this partial decriminalization of homosexuality, Romania has been considered a "safe country" for homosexual asylum-seekers by many European governments. Other European countries such as the United Kingdom and the Netherlands, however, have granted asylum or permits to stay to homosexual asylum-seekers from Romania (ibid.).
In 1997, there were two cases involving Iranian nationals who were claiming persecution due to sexual orientation (ibid.). However, information on the outcome of these cases could not be found among the sources consulted by the Research Directorate.
Slovakia
Slovakia does not accept fear of persecution due to sexual orientation as a valid ground for granting asylum (ILGA 16 Aug. 2001).
Spain
Sexual orientation can constitute a ground for granting political asylum in Spain "if a person is in danger of ill-treatment in his/her country of origin within the meaning of Article 3 ECHR [European Convention on Human Rights]" (CE 6 June 2000).
Sweden
Sexual orientation can constitute a ground for granting political asylum in Sweden "if a person is in danger of ill-treatment in his/her country of origin within the meaning of Article 3 ECHR [European Convention on Human Rights]" (ibid.). This information is corroborated by the 2000 annual country report of the United States Committee for Refugees (USCR), which states that Sweden considers persons who "risk persecution on the basis of gender or sexual orientation to be in need of protection" (2002a).
The 1998 ILGA-Europe report stated that
Under the Aliens Act, Swedish residence permits can be granted on a number of different grounds. These are: asylum as defined by the Geneva Convention, humanitarian grounds, family connections, or labour market reasons. Homosexuals are mentioned explicitly in the Aliens Act, which governs Swedish refugee policy. However, they are not classed as refugees within the meaning of the Convention, but are placed in a separate category of "other persons requiring protection." The law, which came into force 1 January 1997, refers to persons who, "as a consequence of their gender or homosexuality, have a well-founded fear of persecution."
...
Since gay men and lesbians were explicitly included in the Swedish refugee legislation, no case has come to the attention of RFSL, the Swedish Federation for Lesbian and Gay Rights, where a residence permit has been granted solely on the grounds of a "well-founded fear of persecution" resulting from the applicant's homosexuality. According to RFSL's asylum co-ordinator, the authorities' interpretation of the term "well-founded fear of persecution" is extremely restrictive. It is applied mainly in cases where applicants can produce court documents which prove that they are under legal investigation as a result of their homosexuality (June 1998, 84).
Switzerland
According to the 1997 ELENA report, "[t]he social group category has not yet been the subject of a case before the Appeals Commission [and] [t]here is no jurisprudence on sexual orientation as a ground for refugee status" in Switzerland (June 1997).
Ukraine
Ukraine does not accept fear of persecution due to sexual orientation as a valid ground for granting asylum (ILGA 23 June 2000).
United Kingdom
United Kingdom's legislation does not explicitly recognize homosexuals as constituting "'members of a particular social group' ... and there have been a number of court rulings that lesbians and gay men are not a particular social group that may face persecution" (ILGA-Europe June 1998, 98).
According to the 1998 ILGA-Europe report,
In October 1995, a Special Adjudicator upheld an appeal by an Iranian national, ruling that homosexuals in Iran constituted a "particular social group," that there was a reasonable likelihood that such a group would face persecution, and that the applicant had established that he was a member of this group. The Home Office appealed against this ruling to the Immigration Appeal Tribunal, which upheld the appeal by majority decision. The applicant was given leave to appeal to the Court of Appeal and it was hoped that the case would lead to a definitive decision that homosexuals do constitute a particular social group. At the last moment, the Home Office conceded the case, taking the highly unusual step of granting the applicant indefinite leave to remain and paying all costs. In the absence of a decision by a senior court, lower courts will continue to turn down applicants whose claim for asylum is based on sexual orientation.
Under the Asylum and Immigration Act 1996, the Home Secretary is able to designate certain countries as being ones where there is "in general no serious risk of persecution" so that claims for asylum from those countries will be presumed to be "without foundation." The so-called "white-list" of such countries includes several in which male homosexuality is prohibited (ibid.).
According to the 1999 USCR annual country report, the "white list" was comprised of Bulgaria, Cyprus, Ghana, India, Pakistan, Romania and Poland. Asylum seekers from these countries had to show that there is a "'reasonable likelihood' that they had been tortured" (USCR 1999). The report stated that "the government promised to abolish the 'white list'" (ibid.), but the 2000, 2001 and 2002 USCR annual country reports made no mention of whether the "white list" was abolished.
In 1999, new legislation concerning immigration and asylum was enacted in the United Kingdom (USCR 2000b). Under the new Immigration and Asylum Act of 1999, a "claim for asylum" is defined as:
a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom (United Kingdom 1999).
For additional information on the asylum policy in the United Kingdom, please refer to GBR33233.E of 26 November 1999.
Other European Countries
Information on whether the following countries accept fear of persecution due to sexual orientation as a valid ground for refugee status could not be found among the sources consulted by the Research Directorate within time constraints: Albania, Andorra, Armenia, Azerbaijan, Belarus, Bosnia & Herzegovina, Croatia, Cyprus, Estonia, Georgia, Iceland, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Poland, Russian Federation, San Marino, Slovenia, Macedonia, Turkey and Yugoslavia.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.
References
Council of Europe (CE). 6 June 2000. Committee on Legal Affairs and Human Rights. "Situation of Lesbians and Gays in Council of Europe Member States." _____. 25 February 2000. Committee on Migration, Refugees and Demography. "Situation of Gays and Lesbians and Their Partners in Respect to Asylum and Immigration in the Member States of the Council of Europe." European Legal Network on Asylum (ELENA). June 1997. "ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status." European Region of the International Lesbian and Gay Association (ILGA-Europe). June 1998. Equality for Lesbians and Gay Men: A Relevant Issue in the Civil and Social Dialogue. International Lesbian and Gay Association (ILGA). 16 August 2001. "World Legal Survey: Slovakia." _____. 23 June 2000. "World Legal Survey: Ukraine." Irish Centre for Migration Studies. 22 May 2000. Adrienne Collins. "Irish Refugee Policy." Norwegian Refugee Council. n.d. "A Comprehensive Refugee Policy." United Kingdom. 1999. Immigration and Asylum Act 1999. United States Committee for Refugees (USCR). 2002. Annual Country Report: United Kingdom. _____. 2001. Annual Country Report: United Kingdom. _____. 2000a. Annual Country Report: Sweden. _____. 2000b. Annual Country Report: United Kingdom. _____. 1999. Annual Country Report: United Kingdom. Additional Sources Consulted
BBC. European Council on Refugees and Exiles. Human Rights Watch. Journal of Refugee Studies.
LEXIS/NEXIS.
Secretariat of the Inter-Governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (IGC).
Sexuality Information and Education Council of the United States (SIECUS). WNC.
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