The court ruled in general terms that laws discriminating against people based on their sexual orientation could be grounds for granting asylum, but only in “serious” cases of persecution.
While the decision reinforces asylum seeker practices already operating in many European Union member states, many advocates were disappointed the court did not go further.
“It was problematic in the sense that people were hoping that the court would take that one step further and say that laws criminalising homosexuality per se is persecution, because it creates a climate of fear, intimidation and blackmail, and their very existence is a threat of persecution,” LGBTI refugee advocate and Churchill Fellow Senthorun Raj told the Star Observer.
Raj explained this approach to refugee claims means individual claimants have to demonstrate how a given law results in persecution to them specifically—it isn’t enough to simply say a homophobic law exists.
“The EU decision is basically a restatement of all the principles we currently adopt in Australia,” Raj argued.
While the European Court of Justice (ECJ) decision related to refugees seeking asylum from Sierra Leone, Uganda and Senegal, the news highlights tensions in Europe over Russia’s homophobic and internationally condemned ‘gay propaganda’ laws.
After Dutch Foreign Minister Frans Timmerman made global headlines last week for comments indicating the Russian laws could be grounds for LGBTI Russians to seek asylum in the Netherlands, he argued he was misinterpreted, issuing a clarification.
Timmerman said his statement had been generic and did not apply to Russia, where he argued LGBTI activists “are not being prosecuted”.
The Star Observer contacted the Dutch embassy in Australia, and understands Timmerman’s comments did not indicate a change to Dutch asylum seeker policy.
Despite the generality of the ECJ decision, Raj told the Star Observer the Russian laws could definitely be grounds for asylum in many parts of the world, including Australia.
“Absolutely. The fact that the laws are not only in themselves directly harming LGBTI people but also creating a climate of impunity in relation to the homophobic violence that does occur is deeply concerning,” Raj said.
“That could also itself be tantamount to persecution. So clearly people who are LGBTI could claim asylum in many countries around the world, not just Australia.”