July 23, 2014 – From Freemovement.org – In an e-mail posting on a practitioners’ discussion group last week, a representative asked the group for details of a psychiatrist in order to prove that the detained client is gay. In follow-up e-mails, it was revealed that the enquiry was prompted by Counsel’s advice, and that the author meant no offence. Luckily for the author of the enquiry, the Court of Justice of the European Union last Thursday published the Opinion of Advocate General Sharpston in the Cases of A, B and C , which relate to how an asylum seeker could establish that they are gay, or more importantly, what level of investigation would violate their human rights?
By Kevin Goebel, on Flickr
The Dutch authorities have been extremely pro-active in referring questions relating to LGB (Lesbian, Gay or Bisexual) asylum claims to the Luxembourg Court. Last November, the Court in the joined cases of X, Y and Z ruled that unenforced legislation which criminalised consensual private adult same-sex relations did not amount to the definition of persecution found in Article 9 (2) (c) of the 2004 (Minimum Standards) Qualification Directive: the lack of prosecutions, as defined in 9 (2) (c) was determinative in this point being doomed to failure. This author believes that the point should have been litigated under 9 (2) (b), the mere existence of discriminatory legislation, however, this will have to wait for a politically receptive Court in the next decade, resulting in a missed opportunity for change. Nevertheless, the Court accepted that the mere existence of such legislation provided a trigger for Particular Social Group Refugee Convention reason, as the group, due to the criminalisation, were identified by their ‘difference’.