Supreme Administrative Court of Luxembourg, no. 33641C, 2014

Supreme Administrative Court of Luxembourg, no. 33641C, 6 February 2014

Summary

(extract from: Ravarani, ‘Assessment of the credibility of asylum-seekers’, 2017)

‘An Algerian national was applying for asylum in an EU Member State. He claimed to be at risk of prosecution and imprisonment for homosexuality in his home country. He referred to the case-law of the ECJ, according to which the sexual orientation of a person is such a substantial part of the person’s identity that he or she cannot be expected to live without manifesting it. According to this case-law, persecution occurs as soon as the person’s sexual orientation can lead to criminal prosecution and actual imprisonment. The Luxembourg Court has stated in another judgment that applicants should not be subjected to tests or hearings to establish their actual sexual orientation. By the way, similar principles have been affirmed by the ECJ with reference to religious beliefs. It has made it clear that a person cannot be asked not to practise his or her religion openly. In the specific case I am referring to, the national court felt unable to apply what it saw as a principle of almost automatic entitlement to asylum for people who claimed to be persecuted because of their sexual orientation or their religious beliefs. The court in question emphasised, inter alia, that this principle could lead to reverse discrimination (“discrimination à rebours”) in the sense that there was a difference in treatment concerning the burden of proof where politically persecuted individuals were required to adduce concrete evidence, compared to those who claimed to be persecuted on sexual or religious grounds, who were allowed simply to allege such persecution. Consequently, the national court found it problematic to apply abstractly formulated rules for the assessment of the facts in a specific case. It also discussed whether a certain degree of self-restraint could be expected on the part of persons with particular religious beliefs or a particular sexual orientation in problematic countries of origin. In this specific case, the national court ruled that the applicant had not proved that the Algerian authorities usually imprisoned homosexuals, but only those who were very exposed. The asylum application was therefore rejected.’