Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental RightsMemberStateNetherl<strong>and</strong>sRecognition of persecution on grounds ofsexual orientation leading to refugee statusThe definition of being persecuted for reasons ofmembership of a particular social group in the senseof Article 1A of the Geneva Convention includesbeing persecuted for reasons of sexual orientation(Vreemdelingencirculaire [Aliens Circular]C1/4.2.10.2). 183Austria Under the Asylgesetz 2005 [Asylum Act 2005], 184LGBT people are considered to be a particularsocial group. 185 The extension of the notion of ‘socialgroup’ to transgender persons was confirmed by theFederal Independent Asylum Tribunal in a decisionof 28 March 2006. 186Pol<strong>and</strong>PortugalRomaniaThe Law on Granting Protection to Aliens on theTerritory of the Republic of Pol<strong>and</strong> 187 refers back tothe Geneva Convention for the definition of therefugee.Law 15/1998 of 26.03.1998, which borrows from theGeneva Convention for the definition of the refugee,seems to lend itself to an interpretation includingpersecution on grounds of sexual orientation as abasis for the status of refugee.Romania replicated the provisions of Article 10(1) ofDirective 2004/83/EC in Article 10 d) (iii) ofGovernmental Decision 1251/2006 approving themethodological norms for Law 122/2006 onAsylum. 188Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipUnder Article 29(1)(e)(f), Aliens Act, thespouse or the partner of the refugee may begranted a right of residence, without anyrestriction as to the sex.Austrian legislation <strong>and</strong> practice does nottreat unmarried couples in a waycomparable to married couples under its lawrelating to aliens. Therefore, only marriedsame-sex partners would benefit from familyreunification with the LGBT personrecognised as refugee or as having to begranted subsidiary protection.Article 13 Section 2 of the Law recognisesthe spouse among the family membersauthorised to reside with the refugee, withouthowever specifying whether this may extendto same-sex spouses.Article 4 of Law 15/98 includes the ‘spouse’among the family members granted a right ofresidence. It is uncertain whether this wouldextend to same-sex spouses. It is alsounclear whether same-sex partners wouldbe granted the same right, although inPortugal, Law 7/2001 of 11.05.2001recognises the concept of de facto durablerelationships.Article 2.j of Law 122/2006 on Asylum 189includes spouses among family members,however without extending this to personsliving in a stable relationship outsidemarriage.183This policy was the result of a decision by the Afdeling Rechtspraak Raad van State [Judicial Division ofthe Council of State] of 1981: ARRvS, 13.08.1981, no. A-2.1113, RV 1981, 5.184Austria/BGBl I 2005/100, last amended by BGBl 2008/4 (14.01.2008).185See, inter alia, Austria/Unabhängiger Bundesasylsenat/240.479/0-VIII/22/03, (10.05.2004);Austria/Unabhängiger Bundesasylsenat/261.132/4-VIII/40/05, (14.07.2005); Austria/UnabhängigerBundesasylsenat/234.179/0-IV/44/03, (03.12.2004).186Austria/ Unabhängiger Bundesasylsenat [Federal Independent Asylum Tribunal], 244.745/0-VIII/22/03,decision of 28.3.2006.187Pol<strong>and</strong>/Ustawa z dnia 13 czerwca 2003 o udzielaniu cudzoziemcom ochrony na terytoriumRzeczpospolitej Polskiej, Dziennik Ustaw [Journal of Laws] of 2006, No 234, item 1695, as amended.188Romania/ Law 122/2006 on Asylum in Romania (18.05.2006).189Romania/ Law 122/2006 on Asylum in Romania (18.05.2006).100
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal AnalysisMemberStateSloveniaSlovakiaFinl<strong>and</strong>Recognition of persecution on grounds ofsexual orientation leading to refugee statusThe Zakon o mednarodni zaščiti [InternationalProtection Act]190 replicates the definition of therefugee contained in Directive 2004/83/EC,including the reference to sexual orientation as aground of persecution.The Asylum Act replicated the provisions of Article10(1) of Directive 2004/83/EC. 191Persecution on grounds of sexual orientation is tobe considered persecution on the grounds of‘membership in a particular social group’ within themeaning of section 87 of the Aliens Act. 193 Section88 in turn establishes a form of subsidiaryprotection, which would appear to extend tosituations where homosexuality is criminalised inhis/her home country or country of permanentresidence, or because he/she would be subjected toharassment in that country.Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipArticle 3 of the International Protection Actincludes ‘spouses’ <strong>and</strong> ‘extra-maritalpartners in long-term relationships asdefined by regulations on the right toresidence of aliens in Slovenia’ among thefamily members, however this would notextend to same-sex spouses or partners.While spouses are among the familymembers authorised to reside in Slovakiawith the person granted internationalprotection, this would not extend to samesexspouses. However, ‘temporary refuge’may be granted to persons who were livingin the same household <strong>and</strong> were fully orpartly dependant on him/her. 192Under the said Article ‘Family members’ towhom a right of residence will be recognisedinclude: (i) the spouse (which extends toindividuals in registered relationships 194 ), (ii)persons living continuously in a marriage-likerelationship within the same householdregardless of their sex, provided that theyhave lived together for at least two years orthat they have a child in joint custody or thatthere is some other ‘weighty reason’ for it(see sections 37 <strong>and</strong> 114 of the Aliens Act).190Slovenia/International Protection Act 111/07 (29.11.2007), Art.1.191Art. 9. Slovakia/zákon 480/2002 (20.06.2002)192Art. 31a. Slovakia/zákon 480/2002 (20.06.2002).193Explanatory memor<strong>and</strong>um to the Government proposal for the Aliens Act, HE 205/2006. Similarly, TapioKuosma, Uusi ulkomaalaislaki (Helsinki: Lakimiesliiton kustannus, 2004), p. 395.194This is expressly written down to section 37. See also the explanatory memor<strong>and</strong>um to the Governmentproposal for Aliens Act, HE 205/2006, p. 139 <strong>and</strong> the Act on Registered Partnerships.101
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