Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental RightsTable 3.1 Persecution on grounds of sexual orientation in the granting of asylum<strong>and</strong> family reunification rights of same-sex couplesin the EU Member StatesMemberStateBelgiumBulgariaCzechRepublicRecognition of persecution on grounds ofsexual orientation leading to refugee statusSexual orientation may be a ground for recognisingthe status of refugee (Art. 48/3 of the Act of 15December 1980 concerning access to the territory,residence, settlement <strong>and</strong> removal of aliens, asamended).Persecution on grounds of sexual orientation maylead to recognise the status of refugee (DecisionN12294 of 30.12.2003 of the Върховенадминистративен съд [Supreme AdministrativeCourt]).Directive 2004/83/EC was transposed into Czechlaw by Act No. 165/2006, which amended theAsylum Act (Zákon o azylu). The Ministry of Interiorhas issued several decisions since 2005 where thewell-founded fear of being persecuted on thegrounds of sexual orientation was recognised as areason for granting asylum <strong>and</strong> several applicantswere granted asylum. This interpretation is followedby the Supreme Administrative Court. 173Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipWhile only spouses <strong>and</strong> partners under theregistered partnership laws of Germany,Denmark, Finl<strong>and</strong>, Icel<strong>and</strong>, Norway, Swedenor the United Kingdom, will allow for familyreunification during the procedure for thedetermination of refugee status, once thatstatus is granted, the usual rules on familyreunification with third-country sponsorsapply.Art.24, Para 1, item 14 of the Act onForeigners in the Republic of Bulgaria inprinciple restricts the notion of ‘familymembers’ to opposite-sex spouses orpartners, although, since the Entry,Residence <strong>and</strong> Exit of Citizens of the EU<strong>and</strong> Accompanying Members of TheirFamilies Act of 01.01.2007 requires thatcohabitation be proven by a formal certificatedelivered by the authorities of the State ororigin, it cannot be excluded that thisrestrictive interpretation will be changedwhere such certificates will be granted tosame-sex couples.Under Sec. 13 (14b) of the Asylum Act, theterm ‘family members’ encompasses aspouse or a partner; the term ‘partner’ isdefined in the Asylum Act in Sec. 2 (13) as aperson who can prove that, prior to the entryof the sponsor into the Czech Republic,he/she entered into a registered partnership,i.e., a certified stable relationship of samesexpartners.173Decision of Supreme Administrative Court of 05.10.2006, No. 2 Azs 66/2006-52,www.nssoud.cz, Decision of Supreme Administrative Court of 23.11.2007, No. 5 Azs50/2007-71, www.nssoud.cz (opened at February 19, 2008).96
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal AnalysisMemberStateDenmarkRecognition of persecution on grounds ofsexual orientation leading to refugee statusIn accordance with Articles 1 <strong>and</strong> 2 of the Protocolon the Position of Denmark annexed to the Treatyon European Union <strong>and</strong> to the Treaty establishingthe European Community, Denmark is not takingpart in Directive 2004/83/EC. Although DK is boundby the 1951 Geneva Convention, ‘sexual orientation’is not deemed to fall within the Udlændingeloven(Aliens Act) section 7(1) (the social group criteria),<strong>and</strong> therefore those persecuted on this basis are notconsidered ‘refugees’ according to the 1951 GenevaConvention. However, if there exists a real risk ofexecution or inhuman or degrading treatment in thecountry of origin the person will be considered arefugee according to Udlændigeloven (Aliens Act)section 7(2) (so called B-status or protection status)<strong>and</strong> be granted a residence permit on equal termswith section 7(1) refugees. The mere definition ofhomosexual conduct in the country of origin as acriminal offence would not at the time beingconstitute an obstacle for denial of refugee status.Germany Since 1988 in the case-law, <strong>and</strong> now in Article 60para. 1, 5th sentence of the Residence Law, 174homosexuality constitutes a recognised ground forclaiming asylum on behalf of membership of aspecific social group, although the mere definition ofhomosexual conduct in the criminal law of the Stateof origin does not constitute a sufficient ground. 175EstoniaGreeceThe Act on Granting International Protection toAliens, which implements Council Directive2004/83/EC, while it replicates in para. 4 (1) thedefinition of the ‘refugee’ stipulated in the Directive,does not specify whether sexual orientation mayconstitute a ground of persecution of the individualas a member of a ‘social group’. Nevertheless thislegislation should be read in conformity with therequirements of the directive in this respect.Implementation of Directive 2004/83/EC is stillpending. However, Greece applies the definition of‘refugee’ of the 1951 Geneva Convention on theStatus of Refugees, which allows for the inclusion ofsexual orientation among the grounds ofpersecution which may lead to granting asylum.Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipSame-sex partners are accepted as familymembers in the context of asylum <strong>and</strong> /orsubsidiary protection in so far that they areco-habiting partners, on equal footing asdifferent sex partners.Under Article 11 of the Life Partnership Law,a life partner is subsumed under the term‘family member’ of the other life partner.Under 7 of the Act on Granting InternationalProtection to Aliens, ‘spouses’ are includedamong the ‘family members’ of the refugeeor person benefiting from subsidiaryprotection. However, unmarried partners,whether or not in a registered partnership,are not included.It would seem that Greece does notrecognise same-sex couples, even marriedor under registered partnerships, forpurposes of family reunification.174See the preparatory works: Bundestag, document no. 15/420, p. 91.175Federal Court of Administration (Bundesverwaltungsgericht), BVerwGE 79,143 (146-147).97
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