Uitspraak 201109928/T1/V2

Dutch version

Council of State

201109928/T1/V2
Date of judgment: 18 April 2012

ADMINISTRATIVE JURISDICTION DIVISION

Order for reference in the framework of the appeal by:

[the alien],
appellant,

against the judgment by The Hague district court, sitting in Haarlem, of 15 August 2011 in case no. 11/2609 in the proceedings between:

[the alien]

and

the Minister for Immigration and Asylum Policy.

1. Course of the proceedings

By decision of 12 January 2011, the Minister for Immigration and Asylum Policy rejected the appellant’s application for a temporary asylum residence permit. The decision is appended to this judgment.

By judgment of 15 August 2011, sent on the same day, the district court declared the appellant’s application for review of the decision unfounded. This judgment is appended.

The appellant lodged an appeal against this judgment by letter, which the Council of State received on 12 September 2011. This letter is appended.

The Minister for Immigration and Asylum Policy (now known as the Minister for Immigration, Integration and Asylum Policy; ‘the Minister’) submitted a defence.

The Administrative Jurisdiction Division heard the case on 20 February 2012. The hearing was attended by the appellant, assisted by S. Sewnath, attorney in Amsterdam, and the Minister, represented by R.A. Visser, employed by the Ministry of the Interior and Kingdom Relations.

By letters of 2 April 2012, the Administrative Jurisdiction Division informed the parties that the hearing had been reopened and that it planned to ask the Court of Justice of the European Union (‘the Court’) to issue a preliminary ruling on the questions to be submitted. The draft questions were appended to the letters.

The appellant and the Minister responded by letters of 12 April 2012.

2. Considerations

2.1. ‘The Minister’ is understood to include his legal predecessors.

Statutory framework

2.2. Under article 1 (A) (2) of the Convention relating to the Status of Refugees adopted in Geneva on 28 July 1951 (Dutch Treaty Series 1951, 131), as amended by the New York Protocol of 31 January 1967 (Dutch Treaty Series 1967, 76; ‘the Refugee Convention’), a refugee is defined for the purposes of the Convention as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

Article 33, paragraph 1 states: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

Under article 2, opening words and (c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304; ‘the Directive’), ‘refugee’ means:

a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.

Article 9, paragraph 1 states:

Acts of persecution within the meaning of article 1 A of the Geneva [Refugee] Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) be an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

Paragraph 2 states:

Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
(f) acts of a gender-specific or child-specific nature.

Paragraph 3 states:

In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.

Under article 10, paragraph 1, opening words and (d), member states must take the following element into account when assessing the reasons for persecution:

a group shall be considered to form a particular social group where in particular:

members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article.

Under section 1, opening words and (l) of the Aliens Act 2000 (Vreemdelingenwet 2000), for the purposes of that Act and the provisions based on it, ‘refugee under the terms of the Convention’ means ‘an alien who is a refugee within the meaning of the Refugee Convention and to whom its provisions are applicable’.

Under section 28, subsection 1, opening words and (a), the Minister is competent to grant, reject or not process an application for a temporary residence permit. Under section 29, subsection 1, opening words and (a), a temporary residence permit as referred to in section 28 may be issued to an alien who is a refugee under the terms of the Convention. Under section 31, subsection 2, opening words and (a), the screening of an application for a temporary residence permit as referred to in section 28 must take account, inter alia, of the fact that the alien has previously submitted an application for a residence permit in the Netherlands under another name

The Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) contain the administrative rules adopted by the Minister for the implementation of the Aliens Act 2000. They also explain various provisions of the Act or generally binding regulations adopted by or pursuant to the Act together with guidelines aimed at the government agencies responsible for implementing the Act. Under chapter C2, section 2.1, in so far as relevant here, refugees are aliens who fit the definition in article 1 (A) of the Refugee Convention; in other words they come from a country where they have a well-founded fear of being persecuted for their religious or political views or nationality or because they belong to a particular race or social group. Refugee status ensures the protection offered by the Refugee Convention, especially protection under article 33 of the Convention: refugees will not be expelled or returned in any manner whatsoever to a country where their life or freedom would be threatened on the grounds listed in article 1 (A) of the Refugee Convention (the principle of non-refoulement). Under chapter C2, section 2.10.2, in so far as relevant here, if an asylum seeker argues that he or she has experienced problems as a result of his or her sexual orientation, this may in certain circumstances lead to the conclusion that the person in question is a refugee within the meaning of the Refugee Convention.

According to existing policy and settled case law, persecution for membership of a particular social group as referred to in article 1 (A) of the Refugee Convention includes persecution on the grounds of sexual orientation. An asylum application that invokes problems arising from the asylum seeker’s alleged sexual orientation must be reviewed with special attention for the position of persons who have a homosexual orientation in the country of origin. Government influence in the social sphere differs from one country of origin to another. If someone is punished on the basis of a criminal-law provision relating only to persons with a homosexual orientation, this amounts to an act of persecution. This is the case, for example, if being homosexual or expressing specific homosexual feelings constitutes an offence. For the conclusion to be that an alien is a refugee, the punishment must be of a certain severity. For instance, imposition of a fine will generally provide an insufficient basis to conclude that the person is a refugee. However, the criminalisation of homosexuality or homosexual acts in a particular country will not by itself automatically lead to the conclusion that a homosexual from that country is a refugee. The asylum seeker must demonstrate convincingly (with documents, if possible) that he personally has a well-founded reason to fear persecution. People with a homosexual orientation are not expected to conceal their sexuality on their return.

Minister’s decision

2.3. In the decision of 12 January 2011, incorporating the intention to dismiss the asylum application, the Minister, in so far as relevant here, took the position that section 31, subsection 2, opening words and (a) of the Aliens Act 2000 is applicable to the appellant, because earlier, on 14 March 2009, he had submitted an application for a temporary asylum residence permit under another name, which seriously undermines the credibility of his account. The appellant has made varying, vague and absurd statements on essential elements of his account, and his alleged problems with the authorities in his country of origin and with his family, resulting from his sexual orientation, are therefore not credible. The general documents submitted by the appellant concerning the treatment of homosexuals in the country of origin are no reason to grant him the requested asylum residence permit, because he needs to cite facts and circumstances regarding himself personally in order to present a convincing case that he has already experienced problems in the country of origin on account of his sexual orientation. In the light of the foregoing, the Minister is of the opinion that he has not succeeded in doing so.

Contested judgment

2.4. In so far as relevant here, the district court held that it was reasonable for the Minister to take the position that the appellant’s account was not credible and that he therefore could not invoke the policy set out in chapter C2, section 2.10.2 of the Aliens Act Implementation Guidelines 2000. The district court also held that the appellant could not invoke article 10, paragraph 1, opening words and (d) of the Directive as part of his argument that he had reason to fear persecution and discrimination on account of his sexual orientation if he returned to his country of origin. The documents submitted by the appellant, including a Human Rights Watch report entitled ‘Fear for Life’ of November 2010, do not show that people with a homosexual orientation are generally discriminated against or persecuted in Senegal. The district court saw no reason to seek preliminary rulings, as requested by the appellant.

Assessment of the merits of the appeal

2.5. In his grounds for appeal, the appellant stated, in substance, that the district court had failed to recognise that he had a well-founded fear of persecution, as defined in article 9, paragraph 2 (c) of the Directive, since homosexuality is an offence in Senegal. This meant that he did not have the opportunity to express his sexual orientation as he would wish, not even in private, and would be compelled to conceal it on returning to his country of origin in order to avoid persecution. The appellant therefore claimed that the district court was wrong not to request preliminary rulings on article 10, paragraph 1 (d) of the Directive, as he had requested in his application for judicial review.

2.5.1. The appellant’s homosexual orientation was not contested in the appeal proceedings. Nor was it contested that it was reasonable for the Minister to take the position that his account lacked credibility. This account concerns what allegedly happened to the appellant in his country of origin as a result of his sexual orientation. He claims, for example, that he attended a gay wedding at which photos were taken that were published in a magazine. As a result, the authorities in his country of origin learned of his sexual orientation, which led to his being arrested and blackmailed, following which he had to appear before a court in Senegal. The appellant has not argued that he need fear persecution for any reason other than his sexual orientation, or that he has otherwise attracted the adverse attention of the Senegalese authorities or receives no protection from the authorities against third parties.

2.6. At the hearing before the Administrative Jurisdiction Division, the Minister stated – in brief –¬ that although, in accordance with the policy set out in chapter C2, section 2.10.2 of the Aliens Act Implementation Guidelines 2000, he does not expect aliens to conceal their sexual orientation in their country of origin, this does not imply that they must be able to express it as openly as they can do in the Netherlands. The Minister argued that, although homosexual activities deserve as much protection as heterosexual activities, aliens can nevertheless be expected to accept restrictions and show a certain amount of restraint in publicly expressing their orientation. The Minister could not determine in advance what degree of restraint might be expected. Aliens should, however, be able to express their sexual orientation in a meaningful way. Although national policy does not allow the Minister to insist that an alien conceal his sexual orientation, the Minister argued at the hearing that the degree of restraint required may be far-reaching. He also held that aliens can be expected to exercise restraint in private in order to avoid persecution. The Minister determines whether an alien can express his sexual orientation meaningfully on the basis of the restrictions and violations that he experienced in his country of origin before leaving for the Netherlands, as set out in his individual account. Only if aliens with a homosexual orientation are systematically exposed to inhuman treatment does an alien not have to demonstrate convincingly what restrictions and violations he has experienced. In such cases, according to the Minister, an alien does not have to show that he personally has reason to fear persecution owing to his sexual orientation, but only that he is homosexual.

2.7. Articles 9 and 10 of the Directive were implemented, inter alia, in section 1, opening words and (l), and section 29, subsection 1, opening words and (a) of the Aliens Act 2000 and articles 3.36 and 3.37 of the Aliens Regulation 2000 (Voorschrift Vreemdelingen 2000). Because the parties disagree on the extent to which expressing a homosexual orientation is protected by the Directive, the interpretation of the above-mentioned articles of the Directive is important in this case.

2.8. The Administrative Jurisdiction Division gave an earlier judgment (judgment of 11 May 2011 in case no. 201011782/1/V1, Justitiële Verkenningen (JV) 2010, 307, and www.raadvanstate.nl) on the above question, with regard to an alien with a bisexual or homosexual orientation. However, this judgment did not relate to refugee status or articles 9 and 10 of the Directive, but to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In that regard, the Division held that the alien in question could be expected to conceal her sexual orientation in her country of origin, partly because, by her own account, she had been able to express her sexual orientation meaningfully in her country of origin before leaving it by maintaining a clandestine lesbian relationship.

2.8.1. On the other hand, the Supreme Court of the United Kingdom, by judgment of 7 July 2010 in the case [2010] UKSC 31 (www.supremecourt.gov.uk), rejected the ‘reasonable tolerability’ test hitherto used by the Asylum and Immigration Tribunal, because the Supreme Court held that it was not compatible with article 1 (A) of the Refugee Convention. This test meant, in brief, that if an alien states that he would have to exercise restraint if he returned to his country of origin in order to avoid pain or damage, no well-founded fear of persecution exists, unless he cannot reasonably be expected to tolerate such a situation.

2.8.2. In this connection it should also be noted that, in its judgment of 23 November 2010, the Higher Administrative Court (Oberverwaltungsgericht) of North Rhine-Westphalia referred questions for a preliminary ruling on the nature and extent of the protection that articles 9 and 10 of the Directive offer to aliens with a homosexual orientation (OJ 2011 C 38/09). The Court registered these questions under case no. C-563/10. Since the identity of the alien in question became known to third parties as a result of its publication on the Court’s website, the competent German authorities granted him a residence permit. On 11 March 2011, the Court ordered that the case be removed from the register at the request of the referring court (OJ 2011 C 186/31). With his request on appeal to refer questions for a preliminary ruling, the appellant seeks to ensure that, in these proceedings, the deleted questions, or comparable questions, are asked again and that the Court responds to them.

2.9. Since homosexuality is a sexual orientation, the first question is whether aliens with a homosexual orientation form a particular social group for the purposes of the Directive, just as they do in national law.

2.10. The next question that arises is what homosexual activities are part of the orientation and therefore fall under the scope of the Directive and whether, if persons engaging in these activities are subject to acts of persecution and if the other requirements are met, that should lead to the granting of refugee status. The question can be divided into several sub-questions.

2.10.1. The first concerns the extent to which homosexual activities are protected under article 10, paragraph 1, opening words and (d) of the Directive. Does this protection apply exclusively to the expression of a homosexual orientation in private or are homosexual activities in public protected as well? Article 10, paragraph 1, opening words and (b) of the Directive explicitly states that the concept of religion includes participation in, or abstention from, formal worship in private or in public. Likewise, a homosexual orientation can be expressed in private or in public, but the Directive does not indicate whether equal protection should be accorded in both the private and public spheres, whereas it does state that this applies in the case of religion. In this regard, it should be noted that in judgments of 9 December 2010 in two cases the Federal Administrative Court (Bundesverwaltungsgericht) of the Federal Republic of Germany asked the Court for preliminary rulings on the nature and scope of article 9, paragraph 1, opening words and (a) of the Directive in respect of religious practices (OJ 2011 C 130/21: the Court registered the order for reference under case no. C-71/11). In question 2 (a), the Federal Administrative Court asks whether the core area of religious freedom is limited to the non-public sphere or whether it also includes the public sphere. Assuming that, in the case of religious freedom, a distinction can be drawn between activities that fall within the core area of religious freedom, the question arises of whether the same distinction can be made in the case of a sexual orientation.

2.10.2. As regards the protection that a homosexual alien can derive from articles 9 and 10 of the Directive, it is also important to answer the question of whether an alien can be expected to conceal his sexual orientation from others if he can thereby avoid persecution in his country of origin. If he cannot be expected to do so, is it permissible to expect the alien to exercise restraint, in private or public, or both, in expressing his sexual orientation and, if so, to what extent? May a distinction be made here between activities that fall within the core area of a sexual orientation and those that do not? If such a distinction may be made, what should be understood by the core area of a sexual orientation? If restraint may be expected, the question arises of whether EU law in general or the Directive in particular is compatible with a distinction being made between homosexual aliens and heterosexual aliens with regard to the protection to which they are entitled.

2.11. The documents submitted by the appellant show that in Senegal, under article 319.3 of the Criminal Code, sexual acts between persons of the same sex are deemed to be indecent and unnatural and carry a prison sentence of between one and five years and a fine of between 100,000 and 1,500,000 francs. On appeal, it was not contested that in Senegalese law sexual acts between persons of different sexes are not criminalised in the same way.

2.11.1. Assuming that a homosexual orientation is a sexual orientation, as referred to above, a question that arises in the light of article 9, paragraph 1 and paragraph 2, opening words and (c) of the Directive is whether the mere criminalisation of homosexual activities and the associated threat of a prison sentence, which – as in this case – are discriminatory in nature, constitute an act of persecution as referred to in article 9, paragraph 1, opening words and (a) of the Directive. If not, in what circumstances would this be the case?

2.12. Since the meaning of article 10, paragraph 1, opening words and (d) in conjunction with article 9 of the Directive is decisive in assessing the grounds for appeal and since, having regard to the above considerations, the meaning is unclear, there is reason to refer the following questions for a preliminary ruling.

1) Do aliens with a homosexual orientation form a particular social group as referred to in article 10, paragraph 1, opening words and (d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304; ‘the Directive’)?

2) If the first question is answered in the affirmative, what homosexual activities fall under the scope of the Directive and, if persons engaging in these activities are subject to acts of persecution and if the other requirements are met, can that lead to the granting of refugee status? This question comprises the following sub-questions.

a) Can aliens with a homosexual orientation be expected to conceal their sexual orientation from others in order to avoid persecution?

b) If the previous question is answered in the negative, may aliens with a homosexual orientation be expected to exercise restraint in expressing their sexual orientation in their country of origin in order to avoid persecution and, if so, to what extent? May homosexuals be expected to exercise more restraint in this respect than heterosexuals?

c) If, in this regard, a distinction can be made between activities that fall within the core area of a sexual orientation and those that do not, what is to be understood by the core area of a sexual orientation and how can it be established?

3) Do the mere criminalisation of homosexual activities and the associated threat of a prison sentence, which are discriminatory in nature, as stipulated in the Criminal Code of Senegal, constitute an act of persecution as referred to in article 9, paragraph 1, opening words and (a) in conjunction with paragraph 2, opening words and (c) of the Directive? If not, in what circumstances would this be the case?

2.13. The hearing of the appeal is suspended until the Court of Justice has given judgment.

3. Decision

The Administrative Jurisdiction Division of the Council of State

Giving judgment in the name of the Queen

I. Requests that the Court of Justice of the European Union give a preliminary ruling on the following questions.

1) Do aliens with a homosexual orientation form a particular social group as referred to in article 10, paragraph 1, opening words and (d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304; ‘the Directive’)?

2) If the first question is answered in the affirmative, which homosexual activities fall under the scope of the Directive and, if persons engaging in these activities are subject to acts of persecution and if the other requirements are met, can that lead to the granting of refugee status? This question comprises the following sub-questions.

a) Can aliens with a homosexual orientation be expected to conceal their sexual orientation from others in order to avoid persecution?

b) If the previous question is answered in the negative, can aliens with a homosexual orientation be expected to exercise restraint in expressing their sexual orientation in the country of origin in order to avoid persecution and, if so, to what extent? Can homosexuals be expected to exercise more restraint in this respect than heterosexuals?

c) If, in this regard, a distinction can be made between activities that fall within the core area of a sexual orientation and those that do not, what is to be understood by the core area of a sexual orientation and how can it be established?

3) Do the mere criminalisation of homosexual activities and the associated threat of a prison sentence, which are discriminatory in nature, as stipulated in the Criminal Code of Senegal, constitute an act of persecution as referred to in article 9, paragraph 1, opening words and (a) in conjunction with paragraph 2, opening words and (c) of the Directive? If not, in what circumstances would this be the case?

II. Suspends the hearing and defers all further decisions.

Done by H.G. Lubberdink, president, and M.G.J. Parkins-de Vin and H.G. Sevenster, state councillors, in the presence of O. van Loon, officer of the Council of State.

[signed] H.G. Lubberdink [signed] O. van Loon
President Officer of the Council of State

Pronounced at a public hearing on 18 April 2012

284-664