Refugee status is reserved for cases of real and active oppression

It could still be a fine line between individuals concealing their sexuality because of '¨social pressure and those fearing state persecution, says Paul Stanley QC

In joined cases C-199/12 to C-201/12 X, Y and Z (7 November 2013) the ECJ had to consider the circumstances in which gay people are entitled to qualify as refugees under directive 2004/83. The result is a cautious and qualified extension of refugee rights, very much in line with the position taken under UK law.

The ECJ was asked by the Dutch supreme court to consider three questions: Do gay people constitute a "particular social group" for the purposes of article 10(1)(d) of the directive? Does the criminalisation of homosexual acts in itself amount to persecution? And could gay people be required to avoid persecution by hiding their sexual orientation?

The answer to the first question was simple: yes, gay people do constitute a "particular social group". This is no surprise. The main interest of the case is in the answers to the second and '¨third questions, in relation to which the ECJ took a balanced and cautious approach.

Cautious approach

When it came to consider what amounts to persecution, the ECJ's answer was that there was persecution if the state in question criminalised homosexual acts, and actually enforced those criminal laws, in particular by imprisonment. It does not, of course, follow that this is the only possible form that persecution might take. In some countries the criminal laws are rarely formally invoked against gay people, but the threat of using them is deployed in a very oppressive way. But if all there is are some legal prohibitions - but in practice they are not used, or only very rarely used - then this will not amount to persecution.

Thus it seems clear from the ECJ's reasoning that the mere fact that a state does not accord gay people equal or adequate rights does not amount to persecution. Refugee status is reserved for cases of real and active oppression. Many people live under more-or-less unsatisfactory regimes, in which they are treated in ways that we would regard as unjust and contrary to the best (or even to basic) standards of human rights, without necessarily being "persecuted". In order to rise to the level of persecution, the violation of rights must be, as the ECJ said, a "severe violation".

In answer to the third question, the ECJ made it clear that a person could not be expected to act with "restraint" or to conceal his or her sexual orientation in order to avoid persecution. This is consistent with the approach taken by the UK Supreme Court in HJ and HT [2010] UKSC 31.

Behaving discreetly

The ECJ did not in terms address the problem, much discussed in HJ, posed by the person who behaves "discreetly", not out of fear of state action, but because of social pressure. On the one hand, the ECJ makes it clear that "an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution". But if the applicant is going to conceal it anyway, not to avoid government persecution, but for his or her own reasons, the position is delicate. It is, as the ECJ stresses, the "individual situation" that matters, and it seems to follow that if a person's individual situation is such that he or she will not in fact be exposed to a risk of persecution, that could be a relevant fact.

On the other hand, perhaps this is too subtle a point. The ECJ is quite clear that the fact that a person could avoid persecution by concealing his or her sexual orientation is to be disregarded. In practice it may be a rare case where the evidence really '¨shows that successful concealment will occur for reasons quite unconnected with state oppression. SJ