The European Court of Justice took a stand for gay rights in Europe Thursday when it ruled that homosexuality is grounds for asylum if the asylum-seeker faces a "credible threat of imprisonment" for their sexual orientation.
That "credible threat" condition is critical because it explains both why the ruling is a big deal for Europe, and why some gay-rights activists are pushing for more. Most European countries, it turns out, already consider LGBT persecution grounds for granting asylum. But how they define persecution, and the threshold for granting asylum, varies widely by country.
In Germany, for instance, an applicant must prove both that he faces an “unbearably severe and in every sense completely unreasonable” punishment and that he’s “irreversibly” gay, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, an LGBT rights group. (“Reversible” gayness, per Germany, is “the mere tendency for same-sex activity.”) Denmark and the Netherlands grant asylum only to applicants who face death or torture. Italy requires applicants to prove that they would still face prosecution even if they were closeted.
The ECJ’s ruling will essentially lower all those thresholds to this one: Applicants need only prove that (1) homosexuality is a jailable offense in their country, and (2) those jail sentences are actually being enforced. The Luxembourg-based court also struck down the argument that persecuted individuals could just conceal their sexuality to avoid persecution, rather than apply for asylum.
The case came to the court from the Netherlands, where Dutch immigration officials asked for help deciding three asylum cases from men in Senegal, Sierra Leone and Uganda. All three cases would theoretically meet this new asylum standard, since gay people are regularly imprisoned in those countries.
Some activists have argued, however, that the ruling doesn’t go far enough. Amnesty International issued a statement calling it a “setback for refugees” and arguing that it shouldn’t matter whether anti-gay laws are being enforced -- the fact that they exist constitutes “persecution per se.” There’s also enormous concern around the issue of whether an applicant’s partner can emigrate with him or her. While both partners could theoretically seek, and obtain, asylum independent of each other, groups like ILGA want to see family reunion law extended to same-sex couples.
Still, this is good news for the gay community -- particularly in nearby Russia or in farther-away countries like Uganda, where homosexuality is punishable with life imprisonment. More than 70 countries criminalize homosexuality around the world, many of them in sub-Saharan Africa. Of course, many countries often require someone to be on their soil before applying for asylum, a significant hurdle given the cost of travel and Europe's immigration restrictions.
The United States, for the record, has recognized anti-LGBT persecution as grounds for asylum since 1994. Generally, however, applicants must prove that they have suffered persecution for their sexuality -- it’s “much more difficult,” per the advocacy group Immigration Equality, to claim asylum based on fear of future persecution. In that one respect, at least, Europe’s policy is now more progressive than that of the United States's.