Asylum: will Europe soon be flooded with wannabe homosexuals?

By J.C. von Krempach, J.D. | November 7, 2013

Political correctness requires its tribute: whenever it comes to issues related to homosexuality, law courts seem to lose all their senses. The outcome is at times ridiculous, at times outright dangerous.

The newest judgment of the Court of Justice of the EU (CJEU) falls into that latter category. It affirms that “being homosexual” is a ground for obtaining asylum in the EU, if homosexual acts are punishable in the asylum seeker’s country of origin. The judgment is the CJEU’s reply to a preliminary question asked by the Dutch Raad van State in view of three asylum seekers from Sierra Leone, Uganda, and the Senegal who affirmed to be homosexual.

The newest privilege for (wannabe) gays and lesbians: they get asylum, where others don't.

The judgment’s obvious flaw is that it fails to make a distinction between, on the one hand, feeling attracted to a person of the same sex, and, on the other hand, committing homosexual acts. While committing homosexual acts is subject to criminal prosecution as an act of gross indecency in many countries, one has never heard of any country where “being homosexual” is considered an offence.

But how can anyone actually “be” homosexual? The Court seems to adhere to the completely un-scientific and unproven myth that homosexuality is an innate characteristic of the persons affected by it, as if it were genetically pre-determined. That is of course absolute bogus, and this alone is sufficient to question the validity of the Court’s conclusions. The judgment is underpinned by a clumsy and careless interpretation of the auxiliary verb “to be”: one “is” not homosexual in the same sense as one is a man, a woman, an elderly or a disabled person. And if as a ground for obtaining asylum it is sufficient to be part of “a particular social group” that is specifically targeted by criminal laws, could not the same be said of paedophiles (given that the APA now considers paedophilia, like homosexuality, as a “sexual orientation”), or of thieves and bank robbers, or of the Sicilian mafia?

Committing homosexual acts is a deliberate choice, from which one can abstain. The question therefore is not whether homosexuals form “a particular social group”, but whether it is reasonable for legislators in third countries to criminalize homosexual acts, and whether the desire to commit homosexual acts without risk of punishment should be considered sufficient as a ground for asylum.

This raises also some important practical questions which the CJEU appears not to have considered. In particular, it should be noted that the EU Fundamental Rights Agency (FRA), in a report issued some years ago, has made the claim that it amounted to “inhuman and degrading treatment”, and was therefore not admissible, to subject asylum seekers who claimed to be homosexuals to tests that had the purpose of verifying whether that assertion was true. Of course, one might object that the FRA is a quango with a dubious reputation whose legal opinions are not binding. And indeed, setting aside the question of whether they were inhuman and humiliating, there are also serious reasons to doubt whether the kind of tests that were condemned by the FRA is really apt to prove or disprove a person’s homosexuality. But it remains that today’s CJEU judgment gives no hint whatsoever how an asylum seeker’s claim to “be homosexual” could ever be verified. Apparently it suffices to just make the claim, and any attempt of Member State’s authorities to verify it will be dubbed as “inhuman”.

With this judgment, therefore, the CJEU seems to have created a 100% safe way of obtaining asylum in the EU, illustrating once more the systemic risk that is associated with conferring too much power to a disconnected and aloof judiciary that spends no thoughts on the potential impacts of its decisions. I just wonder what will happen when word of this newest judicial aberration will spread, as is bound to happen within a few days, beyond the Sahel zone. Will Europe soon be flooded by wannabe homosexuals?

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