Homophobia and Discrimination on

<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation <strong>and</strong> Gender Identity in the EU Member States
100
I.10. Asylum
Information <strong>and</strong> data in this area is scarce, but existing research <strong>and</strong> information
collected through the fieldwork highlight two areas of concern, the treatment of sexual
orientation <strong>and</strong> gender identity in asylum procedure <strong>and</strong> the conditions for LGBT asylum
seekers in asylum centres.
The general framework regarding asylum
A more detailed analysis of the general legislative framework regarding sexual
orientation <strong>and</strong> gender identity in the context of asylum <strong>and</strong> subsidiary protection can be
found in the FRA’s Legal Analysis, 335 which notes that in accordance with the 1951
Convention on the Status of Refugees (Art.1A(2)), <strong>and</strong> the Council Directive
2004/83/EC, LGBT persons seeking asylum due to persecution on grounds of sexual
orientation in the EU Member States can be recognised as refugees as belonging to 'a
particular social group'. 336
The legal framework in the EU Member States thus provides for the possibility that
LGBT persons persecuted on grounds of sexual orientation or gender identity are
recognised as refugees <strong>and</strong> granted asylum. Subsequently, several LGBT persons have
been granted asylum on these grounds in EU Member States.
The available data shows that asylum has been granted to LGBT persons in Austria,
Belgium, Denmark, France, Germany, Greece, Hungary, Italy, Luxembourg, the
Netherl<strong>and</strong>s, Pol<strong>and</strong>, Portugal, Spain, Sweden, Czech Republic <strong>and</strong> the United
Kingdom. However, this list is not necessarily exhaustive, since no Member State
provides a statistical overview of the number of cases where asylum is granted on
grounds of sexual orientation or gender identity. In some Member States (for example
Cyprus, France, Germany <strong>and</strong> Slovakia) official figures do not exist, <strong>and</strong> immigration
authorities in Estonia <strong>and</strong> Latvia 337 state that there have been no asylum claims on
grounds of sexual orientation or gender identity.
335 European Union Agency for Fundamental Rights, (2008) <strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of
Sexual Orientation in the EU Member States: Part I - Legal Analysis. pp. 83-98
336 With Denmark as the exception, as Denmark does not recognise homosexuals or transgender persons
as 'particular social groups', insofar as the immigration authorities do not operate with the category of
'particular social group' in legal practice. However, it is possible to grant a residence permit with
'protection status' if the immigration authorities determine a 'risk of execution or inhuman or degrading
treatment in the country of origin', cf European Union Agency for Fundamental Rights, (2008)
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member States: Part I -
Legal Analysis
337 In Estonia: The Citizenship <strong>and</strong> Migration Board. In Latvia: The Office of Citizenship <strong>and</strong> Migration