Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental RightsMemberStateSpainFranceIrel<strong>and</strong>ItalyCyprusRecognition of persecution on grounds ofsexual orientation leading to refugee statusLaw 5/1984 of 26 March on Derecho de asilo y de lacondición de refugiado [Right to Asylum <strong>and</strong>Refugee Status] (amended by Law 9/1994 of 19May) refers to the 1951 Geneva Convention for thedefinition of the refugee, <strong>and</strong> courts interpret this toextend to persecution on grounds of sexualorientation.France anticipated the implementation of Directive2004/83/EC in Law 2003-1176 of 10 December2003 amending law n° 52-893 of 25 July 1952relative to the right of asylum. Persons with aparticular sexual orientation are recognised in caselawas forming a ‘social group’, leading to grant thestatus of refugee where that group is subjected toharassment or risks criminal prosecution. Thisprotection extends to transsexuals.Under the Refugee Act 1996 the ground ofmembership of a social group as a basis upon whichrefugee status could be recognised includes socialgroups defined by sexual orientation.Directive 2004/83/EC has been implemented byLegislative Decree 251/2007. 176 Article 8acknowledges that persecution for belonging to aparticular social group characterised by sexualorientation is to be considered as among thegrounds for protection.Council Directive 2004/83/EC of 29.04.2004 wastransposed into Cypriot law in 2007, by amendingthe existing refugee law. 177 Article 10/1/d of theDirective was transposed in Article 3D(1)(d)(ii) of theRefugee Law, as amended, 178 verbatim. Theadministrative practice appears favourable totreating favourably claims to refugee status filed byindividuals on grounds on persecution due to theirsexual orientation.Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipArticle 10.1 of Law 5/1984 extends the rightto residence to ‘the refugee’s spouse, or tothe partner with whom the individual has asimilar relationship of affection <strong>and</strong>cohabitation’.No information availableIrish law does not recognise same-sexpartners – whether married or not – as familymembers in the context of asylum <strong>and</strong>/orsubsidiary protection.The Italian legal system provides familyreunification only for the spouse, withoutspecifying if same-sex marriage is included(Art. 29 a, Legislative Decree 286/1998).Partners are not considered familymembers.Unmarried partners in a stable relationshipare not considered ‘family members’, sinceCyprus does not treat unmarried couples ina way comparable to married couples underits law relating to aliens. In addition however,Cypriot authorities do not recognise samesexmarriages lawfully conducted elsewhere:‘spouses’ from same-sex marriagestherefore are not treated as family membersin Cyprus.176Italy/Decreto legislativo 251/2007 (19.11.2007).177Cyprus/ Refugee Law N.6(I)/2000 (28.01.2000), as amended by, inter alia, Law N.112(I) of 2007.178Art. 4 of the amending law N. 112(I) of 2007.98
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal AnalysisMemberStateLatviaLithuaniaLuxembourgHungaryMaltaRecognition of persecution on grounds ofsexual orientation leading to refugee statusThe 2002 Asylum Law replicates the definition of‘refugee’ of the Geneva Convention withoutspecifying whether persecution on grounds ofsexual orientation should lead to the recognition ofthe status of refugee. 179 However, draft legislationcurrently awaiting adoption would make thisinclusion explicit.Article 10(1)(d) of the 2004 Qualification Directivewas literally transposed into national laws on04.05.2007. 180 It can be expected therefore thatpersecution on grounds of sexual orientation willlead to the recognition of the status of refugee.Luxembourg’s law of 5 May 2006 on the right toasylum <strong>and</strong> complementary forms of protection, asamended, replicates the definition of the refugee ofDirective 2004/83/EC <strong>and</strong> should extend topersecution on grounds of sexual orientation.Homosexuality is recognised as a valid ground forthe granting of asylum, although the practice inrecent years of the Bevándorlási és ÁllampolgárságiHivatal (BÁH) [Office of Immigration <strong>and</strong> Nationality(OIN)] to submit the asylum-seeker to psychiatricexpertise constitutes a worrying development.Maltese law 182 borrows from the 1951 GenevaConvention the definition of the ‘refugee’; it shouldbe interpreted in accordance with Directive2004/83/EC.Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipLatvian law does not recognise same-sexpartners – whether married or not – as familymembers in the context of asylum <strong>and</strong>/orsubsidiary protection.The Law on the Legal Status of Aliensdefines the family members of an asylumseeker as covering the spouse of theregistered partner of the asylum seeker, inso far as the family already existed in thecountry of origin (Article 2). However it wouldseem that this would not benefit same-sexcouples under existing practice.The Asylum Law defines as a family memberthe unmarried partner of the beneficiary ofinternational protection when that partner isengaged in a shared community of life (viecommune) recognised by the country oforigin of one of the partners. However, thelegislation does not allow for the fact thatsome countries do not recognise any civilunion or registered partnership, making itimpossible for the couple to substantiate anylong-st<strong>and</strong>ing officially recognisedrelationship.Act No. 80 of 2007 on asylum 181 in forcesince 01.01.2008, does not include among‘family members’ the spouse of the samesex,or the cohabiting (or registered) partner.The Maltese Refugees Act includes thespouse among the family members, howeverthis would not extend to same-sex spouses;nor would the (registered) same-sex partnerqualify.179Latvia/Patvēruma likums [Asylum Law] (07.03.2002), Art. 23, available at:http://www.likumi.lv/doc.php?id=60721&mode=KDOC (25.02.2008).180Amendments of the Order concerning examination of asylum applications, issuing <strong>and</strong> execution of thedecisions, No. 1V-169 (04.05.2007).181Hungary/2007. évi LXXX. törvény (29.062007). Hereinafter referred to in the body text as AA.182Chapter 420 of The Laws of Malta, Refugees Act, ACT XX of 2000, as amended by Act VIII of 2004 <strong>and</strong>Legal Notice 40 of 2005.99
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