Fear of imprisonment for homosexuality: a ground for asylum in EU member states
Gita Keshava (Durham University)
The European Court of Justice (ECJ) has ruled that people who fear imprisonment on the basis on their sexuality in their home country have grounds for seeking asylum in all EU member states. The Court ruled that homosexuals may constitute a “particular social group” and that criminalisation or imprisonment can be considered persecution provided that it is applied in reality. The existence of a ban on homosexuality cannot itself be a ground for approving an asylum request. However, individuals cannot be expected to hide their sexuality to avoid persecution as to do so would amount to rejecting a fundamental characteristic of one’s identity.
Amnesty International has criticised this judgment for “skirting around” the realities of the situation. In the Amnesty statement, Livio Zilli, a senior legal advisor at the International Commission of Jurists, raised the issue that whether or not the laws in the applicant’s home country have been applied in practice, they are still able to give “rise to a well-founded fear of persecution.”
Yet, a more difficult question remains on the horizon. Next year the ECJ is expected to rule on the question of how national authorities are to verify an individual’s claim of their sexual orientation.
Same-sex marriage in Australia
Frankie Pang (University of Manchester)
Same-sex marriages may soon be recognised for the first time in Australia following the signing into law of the Marriage Equality (Same-Sex) Act 2013 in the Australian Capital Territory (ACT). Wedding ceremonies under the new law are scheduled to take place from December this year. Many same-sex couples, like Canberra residents Darlene Cox and Liz Holcombe, have been celebrating the decision: “we are fortunate to have a progressive government that understands you can put law in place that enhances human rights … there is overwhelming support in our community for same-sex marriage.”
However, the new legislation, passed by only a borderline majority of 9-8 votes in the ACT’s legislative assembly, faces further legal obstacles before it can be implemented in the territory. In particular, there is uncertainty over the new law’s constitutionality following “traditionalist” Australian Prime Minister Tony Abbot’s decision to bring a constitutional challenge to the 2013 Act before the High Court. The basis of the challenge is that the federal Commonwealth of Australia has the sole power to regulate marriage in Australia, and that the new legislation is inconsistent with the Commonwealth’s Marriage Act and Family Law Act, which continue to define marriage in law as the union of one man and one woman.
The same on-going concerns about the constitutionality of state and territory-level recognition of same-sex marriage in Australia also appears to have been the reason for the defeat this month of another same-sex marriage bill in the Legislative Council of New South Wales.
One of the most interesting aspects of the often heated debates over same-sex marriage in Australia has been express criticism of Tony Abbot’s constitutional challenge to the ACT’s Marriage Equality (Same-Sex) Act 2013 by Christine Forster, Abbott’s sister and a lesbian woman. Writing in The Guardian, Foster has publicly questioned her brother’s position: “The sky didn’t fall in and the world didn’t stop turning because the ACT decided that more people who love each other and want to acknowledge their committed and permanent relationships could get married.”