France - CNDA, 6 April 2009, Mr. K., n°616907
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What was at stake
EDAL summary. While Kosovan legislation prohibits any discrimination based on sexual orientation since 2004, persons who publicly acknowledge their homosexuality and demonstrate it in their external behavior regula...
What happened
The applicant, a gay man from Podujevo, Kosovo, disclosed his sexual orientation at age 16. In 2004 his father discovered him with his boyfriend, subjected him to violent assaults and threats, and repeatedly threatened to kill him. The applicant faced ongoing harassment and discrimination in the community, and the Kosovo authorities failed to protect him or intervene, often wrongly asserting that homosexuality was illegal.
What the court decided
The CNDA held that Kosovo homosexual persons who publicly acknowledge their homosexuality constitute a particular social group under Article 1A(2) of the 1951 Refugee Convention because, despite Kosovo's 2004 anti-discrimination legislation, they face de facto harassment and discrimination and cannot obtain protection from authorities who often wrongly declare homosexuality illegal. Applying this to Mr. K., the Court found his reasonably feared persecution upon return to Kosovo was linked to his membership of this particular social group, warranting refugee status.
How the court got there
The CNDA concluded that, despite Kosovo’s 2004 anti‑discrimination legislation, homosexual persons who publicly acknowledge their orientation face de facto harassment and lack state protection, forming a distinct social group under Article 1A(2) of the 1951 Refugee Convention. Because the applicant’s fear of persecution was linked to his membership in that group, the court granted him refugee status.
Statutes and cases cited
- § Refugee Convention art. 1A(2)
- § Qualification Directive 2004/83/EC
Categories
Authoritative link
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