Judgment of the Court (Fourth Chamber) of 7 November 2013 (request for a preliminary ruling from the Raad van State – Netherlands) – Minister voor Immigratie, Integratie en Asiel v X (C-199/12), Y (C-200/12), Z v Minister voor Immigratie, Integratie en Asiel (C-201/12)
(Joined Cases C-199/12 to C-201/12) 1
(Directive 2004/83/EC – Minimum standards relating to the conditions for granting refugee status or subsidiary protection status – Article 10(1)(d) – Membership of a particular social group – Sexual orientation – Reason for persecution – Article 9(1) – Concept of ‘persecution’ – Well-founded fear of being persecuted on account of membership of a particular social group – Acts sufficiently serious to justify such a fear – Legislation criminalising homosexual acts – Article 4 – Individual assessment of the facts and circumstances)
Language of the case: Dutch
Referring court
Raad van State
Parties to the main proceedings
Applicants: Minister voor Immigratie, Integratie en Asiel, Z
Defendants: X (C-199/12), Y (C-200/12), Minister voor Immigratie, Integratie en Asiel (C-201/12)
Intervening party: Hoog Commissariaat van de Verenigde Naties voor de Vluchtelingen (C-199/12 to C-201/12)
Re:
Request for a preliminary ruling – Raad van State – Interpretation of Arts 9(1)(a) and (2)(c) and Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) – Grant of refugee status – Conditions – Reasons for persecution – Homosexuality – Concept of particular social group – Legislation of the country of origin providing for imprisonment of not less than 10 years in the case of homosexual relationships
Operative part of the judgment
Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.
Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.
____________1 OJ C 217, 21.7.2012.