EUAA Jurisprudence on LGBTIQ applicants in international protection in EU+; 26 EU+ states recognise sexual orientation.

EUAA Jurisprudence on LGBTIQ applicants in international protection in EU+; 26 EU+ states recognise sexual orientation.

Jurisprudence related to LGBTIQ Applicants in International Protection, Fact Sheet No 47

Fact sheet EUAA/2026/47 September 2026 Jurisprudence related to LGBTIQ Applicants in International Protection

The jurisprudence presented in this fact sheet is extracted from the EUAA Case Law Database and complements the fact sheets published in September 2025 and September 2023. For more information on legislative, policy and practical developments related to asylum in 2025, please consult the Asylum Report 2026 and the National Asylum Developments Database.

Across the world, lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) persons continue to face criminalisation, discrimination and persecution on account of their sexual orientation, gender identity, gender expression or sex characteristics (SOGIESC). This is particularly prevalent in parts of North and sub-Saharan Africa, the Middle East and Central Asia, where aspects of LGBTIQ persons’ identities remain criminalised, either explicitly by law or de facto, which may force members of these communities to flee their country of origin and seek international protection. The EU Pact on Migration and Asylum, adopted in June 2024 and applicable since June 2026, introduced or reinforced provisions relevant to the protection of applicants with SOGIESC claims across its legislative instruments. Common standards for asylum applicants with diverse SOGIESC are defined in the Qualification Regulation (QR), the Asylum Procedures Regulation (APR), the 2024 Reception Conditions Directive (RCD), the Screening Regulation (SR) and the Crisis and Force Majeure Regulation. In October 2025, the European Commission also adopted the LGBTIQ+ Equality Strategy 2026-2030, recognising that LGBTIQ applicants for international protection may face intersectional and additional risks both en route and upon arrival in the EU, and may require protection and reception that differ from other applicants. This factsheet highlights current trends and evolving jurisprudence identified between January 2025– August 2026. It covers case law from the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR), and national courts from EU+ countries.

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2 Background

Third countries

Consensual same-sex relations are criminalised in 65 countries worldwide: 63 by law and 2 de facto.1 Of these, 33 are in Africa, 21 in Asia, 6 in Oceania and 5 in the Americas.

12 countries have jurisdictions in which the death penalty is prescribed or possible for consensual same-sex activity, with the penalty reportedly being actively enforced in Iran, northern Nigeria, Saudi Arabia, Somalia and Yemen.2

Most jurisdictions target sex between men, using terms like ‘sodomy’ or ‘unnatural offences’, while 42 countries also criminalise same-sex activity between women.3

In 13 countries, transgender people face criminalisation through laws against ‘cross- dressing’ or ‘impersonation’, and many more use vague public order offences to target them.4

In several countries, same-sex relations may not be explicitly criminalised, yet the state is either unwilling or unable to offer effective protection to LGBTIQ individuals. Legal safeguards and protective mechanisms are often inadequate or entirely lacking. As a result, LGBTIQ individuals may face rejection, discrimination or physical violence, whether from state or non-state actors, without access to meaningful protection. In such contexts, internal protection alternatives are effectively unavailable.

As of July 2026, 63 countries maintain legal barriers to freedom of expression for LGBTIQ individuals, including 27 with specific restrictions in education and 34 with restrictions affecting the media. 62 countries have legal barriers to freedom of association, of which 33 have confirmed legal restrictions and 29 are considered likely to have such barriers in place.5 EU+ countries As EU+ countries continue to amend national legal frameworks to implement the Pact on Migration and Asylum, the protection of LGBTIQ applicants is expected to become more harmonised. Nevertheless, significant differences currently remain among EU+ countries in the level of protection afforded to applicants with diverse SOGIESC:

Spain ranks highest in the protection of LGBTIQ rights in Europe, followed by Malta and Iceland, while Romania, Bulgaria and Poland are among the lowest-ranked EU+ countries in this area.6

Currently, 26 EU+ countriesi expressly recognise sexual orientation as a criterion to qualify for international protection in their national legislation.7

i Austria, Belgium, Croatia, Cyprus, Czechia, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

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3

Only 11ii EU+ countries expressly address sexual orientation in asylum policies, administrative instructions or other measures targeting applicants and beneficiaries of international protection.8

Gender identity is expressly recognised in legislation related to international protection as a qualification criterion in 22 EU+ countries.iii

16iv EU+ countries have adopted policies, administrative instructions or other measures that specifically address gender identity in the asylum context.9

Protection related to sex characteristics remains considerably more limited. Only 6 EU+ countriesv expressly include intersex status or sex characteristics as a qualification criterion in legislation related to international protection. However, many Member States consider such characteristics under the ground of membership of a particular social group, ensuring protection through this indirect route following a case- by-case assessment.

Spain is the only EU+ country that explicitly addresses sex characteristics in asylum policies, administrative instructions or other measures for applicants and beneficiaries.10 Most EU+ countries do not keep statistics on the number of applicants requesting international protection with SOGIESC-related claims. Collecting such data could raise data protection issues or violate the principle of confidentiality. Eurostat does not publish data specifically on LGBTIQ asylum applicants but rather on the number of asylum applicants overall. Therefore, centralised EU-level data does not exist on asylum claims based on SOGIESC. Reporting remains inconsistent and fragmented, often relying on NGO documentation, limited national statistics and legal cases.

Key trends in case law

For details on the cases cited, please see the Annex. Qualification assessment

The criminalisation of same-sex relations remains a key indicator of for the risk of persecution, particularly when combined with broader societal hostility and a lack of protection. During 2025-2026, several courts recognised that applicants from countries such as Algeria, Burkina Faso, Cameroon, Guinea, Lebanon, Pakistan, Togo and Uganda faced heightened risks as their criminal laws targeting same-sex conduct were

ii Belgium, Germany, Iceland, Ireland, Latvia, Luxembourg, the Netherlands, Norway, Portugal, Spain and Switzerland. iii Austria, Belgium, Croatia, Cyprus, Czechia, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Slovakia, Slovenia, Spain and Sweden. iv Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Norway, Poland, Portugal, Spain and Switzerland. v Belgium, Denmark, Malta, Norway, Spain and Sweden.

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4 accompanied by violence, discrimination, arbitrary enforcement or ineffective state protection. In these cases, the combination of a restrictive legal framework and hostile social environment was considered sufficient to establish a well-founded fear of persecution.

However, the mere existence of laws criminalising same-sex relations does not, in itself, automatically establish a well-founded fear of persecution. In these cases, courts have generally assessed not only the legal framework in the country of origin, but also the enforcement of such laws, their severity, the individual risk, and whether the applicant could live openly or safely in a less repressive social environment within the country, such as the capital or other major cities. This was considered by courts in Belgium and Lithuania (see Applicant v Commissioner General for Refugees and Stateless Persons (CGRS), July 2025 and Applicant v Migration Department of the Ministry of the Interior of the Republic of Lithuania, February 2025).

Even when homosexuality is not explicitly criminalised, other legal provisions may be used to arrest or target members of the LGBTIQ community. In this regard, the French National Court of Asylum (CNDA) noted that, although same-sex sexual acts were not specifically criminalised in Egypt, general criminal provisions were used to criminalise homosexual behaviour. The same court also held that the criminal law in Zimbabwe prohibiting homosexual relations did not specifically target women; nevertheless, it found that lesbian women could be arrested for acts characterised as ‘indecent’ and subjected to police arbitrariness.

The absence of the criminalisation of same-sex relations does not preclude persecution, as LGBTIQ persons may still face widespread violence, discrimination and ineffective state protection. This was confirmed by the French CNDA in a case concerning an applicant from Guatemala, where even though homosexuality was not criminalised, a high level of violence and discrimination existed within a climate of impunity. In contrast, in cases concerning applicants from Brazil, Colombia and Venezuela, courts acknowledged that violence and homophobia were a reality in the countries, but the general situation did not give rise to an assumption that all members of LGBTIQ communities are at risk. Thus, the courts emphasised the need for an individual assessment of the applicant’s particular circumstances.

While courts may accept an applicant’s account of past abuse, violence and threats to be credible, they may conclude that such experiences do not establish a risk of persecution or serious harm, particularly when effective protection by national authorities is deemed available. This was established in cases concerning applicants from Armenia, Kenya and Russia.

Persecution related to sexual orientation or gender identity can extend also to those perceived as belonging to the LGBTIQ community or those advocating for LGBTIQ rights, as considered by the Regional Administrative Court of Berlin in Germany (see Applicant v Federal Office for Migration and Refugees (BAMF), March 2025).

Sexual orientation and gender identity should not be assessed in isolation, but in conjunction with other relevant factors, such as political opinion, health status and social and economic exclusion. The intersection of these elements may be decisive in determining whether an LGBTIQ applicant is in need of international protection. Several

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5 national courts, including in Czechia and the Netherlands, have emphasised the importance of a cumulative assessment of the applicant’s individual circumstances, particularly when multiple characteristics interact to increase the risk of harm (see Ministry of the Interior v Applicant, July 2026 and Applicant v The Minister for Asylum and Migration, December 2025).

Transgender persons may face forms and levels of discrimination, violence and social exclusion that differ fundamentally from those experienced by homosexual individuals in their country of origin. Accordingly, national courts held