Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental Rightsalso be influenced by the perception that the public morals of the country of return mustbe taken into account in evaluating the severity of the infringement on the rights of theindividual facing the threat of deportation. 167 However, even if, according to that decision,EU Member States are not obliged to refrain from deporting an LGBT person merelybecause that person may be subject to a climate of intolerance in the State of return,harassment on grounds of sexual orientation may constitute either persecution, leadingto recognise the individual concerned as a refugee if he/she seeks asylum, or a form ofinhuman or degrading treatment leading to subsidiary protection, in according with theprovisions of the Qualification Directive cited above. In the 1999 cases of Smith <strong>and</strong>Grady <strong>and</strong> Lustig-Prean <strong>and</strong> Beckett, the European Court of Human Rights did notexclude that treatment which is grounded upon a predisposed bias on the part of aheterosexual majority against a homosexual minority may fall within the scope of Article3 ECHR, which prohibits inhuman or degrading treatment or punishment, provided theill-treatment attains a minimum level of severity. 168 According to the case-law of theCourt, a treatment may be considered degrading, if it is such as to arouse in its victimsfeelings of fear, anguish <strong>and</strong> inferiority capable of humiliating <strong>and</strong> debasing them. 169 Nospecific intent from the part of the author is required for this qualification to apply: it issufficient if the victim is humiliated in his or her own eyes. 170In addition, the real risk of ill-treatment inflicted by private (non-State) actors in thecountry of origin prohibits the removal of a person to that country. Indeed, the protectionafforded by Article 3 ECHR extends to situations ‘where the danger emanates frompersons or groups of persons who are not public officials [where] the authorities of thereceiving State are not able to obviate the risk by providing appropriate protection’. 171This can be illustrated in the September 2005 decision by the Danish Flygtningenævnet(the Danish Refugee Appeals Board), which granted a residence permit to a male citizenfrom Iran. The man had entered into a homosexual relationship with a school friend. TheBoard decided that there was no reason to assume that the applicant would risk beingpersecuted by the authorities because of his homosexuality if he returned to Iran.However, the Board found that the applicant would risk assault as included in paragraphcase no.: 9 K 189/03.A). A particularly worrying development in this case-law is the attempt to makedistinctions between a mere homosexual tendency, which the individual can repress, <strong>and</strong> ‘irreversible’homosexuality, which would have to be proven by a psychiatric expertise, <strong>and</strong> which would lead torecognise the individual concerned as deserving of international protection.167For such an approach, see in the case-law of the German courts: Federal Court of Administration(Bundesverwaltungsgericht), BVerwGE 79, pp. 143ff.; Court of Administration Frankfurt an der Oder,judgment of 27th January 2005, case no.: 4 K 652/01.A; Court of Administration Potsdam, judgment of11th September 2006, case no.: 9 K 189/03.A.168Eur. Ct. HR (3d sect.), Smith <strong>and</strong> Grady v. the United Kingdom judgment of 27 September 1999, Appl.nos. 33985/96 <strong>and</strong> 33986/96, para. 121; see also Eur. Ct. HR (3d sect.), Lustig-Prean v. the UnitedKingdom <strong>and</strong> Beckett v. the United Kingdom judgment of 27 September 1999, Appl. nos. 31417/96 <strong>and</strong>32377/96.169Eur. Ct. HR, Irel<strong>and</strong> v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 66-67,para. 167.170Eur. Ct. HR, Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 16, para. 32.171Eur. Ct. HR, H.L.R. v. France, judgment of 29 April 1997 (Appl. No. 24573/94), para. 40.92
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysis7(2) of the Danish Aliens Act, if he returned to Iran. The decision was based on formerassaults by the brothers of the applicant’s boyfriend <strong>and</strong> the fact that the brothers <strong>and</strong>the applicant’s father had threatened the applicants’ life.In theory, LGBT individuals not subject to persecution on grounds of sexual orientation,in conditions which would lead to a successful asylum claim, could benefit from thesubsidiary protection afforded under the Qualification Directive as a complementarystatus. However, in practice it would not be necessary to evoke this latter form ofinternational protection in the case of EU Member States that comply with therequirements of the Qualification Directive regarding the notion of ‘social group’ whosemembers are protected from persecution by granting them refugee status. Nevertheless,there are cases where, following a refusal of the authorities to recognise that LGBTbelong to a distinctive social group for the purposes of the recognition of the status ofrefugee, subsidiary protection could be invoked, since the individuals concerned run areal risk of being subjected to ill-treatment upon return to their country of origin. 172Finally, it should be emphased that the Qualification Directive imposes minimumst<strong>and</strong>ards on EU Member States, which provide more extensive protection to personsclaiming to be at risk because of their homosexuality or transsexuality (Art. 3). Thus, inthe Netherl<strong>and</strong>s, persons who do not qualify either for protection under the GenevaConvention relating to the Status of Refugees or for subsidiary protection, but for whomthe competent Minister <strong>and</strong> the Parliament consider expulsion to result in exceptionallysevere consequences (the so-called discretionary ground for obtaining asylum of Article29 (1)(d), Aliens Act), are authorised to remain on the territory. Since 18 October 2006this categorical protection has been applied to Iranian LGBT people by the declaration ofa moratorium on their deportation (vertrekmoratorium).3.3. Family members of the individual seekinginternational protectionAccording to Art 2/h of Council Directive 2004/83/EC of 29 April 2004, family members inthe context of asylum <strong>and</strong>/or subsidiary protection include both spouses <strong>and</strong> unmarriedpartners in a stable relationship, where the legislation or practice of the Member State172In France, a Bosnian citizen, Mr S., not having ostensibly manifested his homosexuality <strong>and</strong> not havingbeen subject to legal proceedings, was not considered as belonging to a circumscribed group ofpersons that is sufficiently identifiable to constitute a social group in the spirit of the Geneva Convention.He nevertheless was able to establish that in his country he was at risk of reprisals from individuals byreason of his sexuality, <strong>and</strong> that the Bosnian authorities would not be able to offer him protection; hethereby established that he was exposed to the type of grave threat addressed by the provisions of b) ofArticle L. 712-1 of the French Immigration <strong>and</strong> Asylum Code (CESEDA). The CRR thus grantedsubsidiary protection to Mr S. (CRR, 12 May 2006, 555672, Mr S.). See for a similar case, concerningan asylum-seeker from Gabon, CRR, 3 July 2006, 497803, Mr B.93
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