Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rightsinterpretation given to this clause varies, particularly regarding the consequences to bedrawn from the fact that homosexual behaviour is a criminal offence in the laws of thecountry of origin. Second, the Qualification Directive specifies that ‘sexual orientationcannot be understood to include acts considered to be criminal in accordance withnational law of the Member States’ (Art. 10(1), d)). Despite certain hesitations in theimplementing legislations of the Member States, it is implicit, but certain, that thisexception could not be invoked by reference to any legislation which constitutes aviolation of the right to respect for private life, or which constitutes a discrimination in theenjoyment of the right to respect for private life, under the European Convention onHuman Rights. Third, the protection thus offered to gays <strong>and</strong> lesbians under theQualification Directive should logically extend to transsexuals, since they too form adistinctive ‘social group’ whose members share a common characteristic <strong>and</strong> have adistinct identity due to the perception in the society of origin. But this interpretation is notuniformly recognised.In addition to its stipulations on the recognition of refugee status, the QualificationDirective provides that States shall grant subsidiary protection status to persons who donot qualify as refugees, where such persons fear serious harm upon being sent back totheir state of origin (3.2.). Serious harm includes, inter alia, the death penalty, as well as‘torture or inhuman or degrading treatment or punishment of an applicant in the countryof origin’ (Art. 15, a) <strong>and</strong> b)). According to the European Court of Human Rights, the EUMember States are not obliged to refrain from removing from their national territory anyLGBT person merely because that person may be subjected to a climate of intolerancein the State of return. However, it should be acknowledged that harassment on groundsof sexual orientation may constitute either persecution, leading to recognise theindividual concerned as a refugee if he/she seeks asylum, or (in accordance with thecase-law of the European Court of Human Rights) a form of inhuman or degradingtreatment leading to subsidiary protection, in according with the provisions of theQualification Directive cited above.According to Art 2/h of the Qualification Directive, family members in the context ofasylum <strong>and</strong>/or subsidiary protection include both spouses <strong>and</strong> unmarried partners in astable relationship, where the legislation or practice of the Member State concernedtreats unmarried couples in a way comparable to married couples under its law relatingto aliens (3.3.). ‘Spouses’ of refugees or individuals benefiting from subsidiary protectionwould include same-sex spouses in ten EU Member States. The situation is moredoubtful in seven other Member States, where the definition of ‘spouse’ in this contextstill has to be tested before courts. In the ten Member States in which, by contrast,same-sex spouses would probably not be allowed to join their spouse grantedinternational protection, this portion of the Qualification Directive is implemented inviolation of the prohibition of direct discrimination on grounds of sexual orientation. Asregards the partners in unmarried same-sex couples, same-sex partners are not granteda right to residence in fourteen EU Member States. The refusal to grant residence rights18
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysisto non-married partners is allowed under the Qualification Directive, at least in theabsence of a difference in treatment between same-sex <strong>and</strong> opposite-sex unmarriedcouples. However, the regime thus established still has to be tested against the principleof equal treatment: In the overwhelming majority of cases, asylum-seekers originatefrom countries which do not allow same-sex marriages. This inability to marry, combinedwith the legislation of an EU Member State which refuses to treat unmarried couples in away comparable to married couples in its legislation relating to aliens, leads to asituation where the family reunification rights of gay <strong>and</strong> lesbian asylum-seekers ofbeneficiaries of subsidiary protection are less extensive than those of heterosexualclaimants in an otherwise similar position.Family reunificationCouncil Directive 2003/86/EC of 22 September 2003 on the right to family reunification(‘Family Reunification Directive’) ensures that spouses will benefit from familyreunification (Art. 4/1/a). It is however for each Member State to decide whether it shallextend this right also to unmarried or registered partners of the sponsor. However, theMember States should take into account, in implementing the directive, their obligationsunder Article 6(2) EU 2 . Where a State does not allow a durable partnership to continueby denying the possibility for the partner to join the sponsor, the right to respect forprivate life is disrupted constituting a violation of Article 8 ECHR, since the relationshipcould not develop elsewhere, for instance due to harassment against homosexuals inthe countries of which the individuals concerned are the nationals or where they couldestablish themselves (4.1.).In addition, the directive should be implemented without discrimination on grounds ofsexual orientation. A first implication is that the same-sex ‘spouse’ of the sponsor shouldbe granted the same rights as would be granted to an opposite-sex ‘spouse’ (4.2.). Butthe practical impact of two other implications discussed below is more significant.A second implication is that if a State decides to extend the right to family reunification tounmarried partners living in a stable long-term relationship <strong>and</strong>/or to registered partners(an option chosen by 12 EU Member States), this should benefit all such partners, <strong>and</strong>not only opposite-sex partners. In addition, while the Family Reunification Directiveimplicitly assumes that it is not discriminatory to grant family reunification rights to thespouse of the sponsor, without extending the same rights to the unmarried partner of thesponsor, even where the country of origin of the individuals concerned does not allow for2The Union shall respect fundamental rights, as guaranteed by the European Convention for theProtection of Human Rights <strong>and</strong> Fundamental Freedoms signed in Rome on 4 November 1950 <strong>and</strong> asthey result from the constitutional traditions common to the Member States, as general principles ofCommunity law.19
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