X, Y, and Z from Sierra Leone, Uganda and Senegal respectively, lodged applications for residence permits in The Netherlands arguing they should be granted refugee status on the ground that they have reason to fear persecution in their countries on account of their homosexuality. The Minister refused to grant them residence permits for a fixed period (asylum). The Rechtbank 's-Gravenhage upheld X's and Y's appeal, dismissing Z's appeal. Z appealed to the same court. The Minister appealed to the Council of State the two judgments annulling decisions for X and Y. 

The Council of State observed that the parties were not in agreement as to the extent to which fully expressing a sexual orientation is protected by Articles 9 and 10 of the Qualification Directive 2004/83/EC (QD). Against this context, the court decided to stay the proceedings and referred three questions for preliminary ruling. 

The first questions concerned whether Article 10(1)(d) of the Directive must be interpreted as meaning that, for the assessment of the grounds of persecution which are relied on in support of an application for refugee status, homosexuals may be regarded as being members of a particular social group. 

The court noted that in the QD a group is regarded as a ‘particular social group' where, inter alia, two conditions are met. First, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. Second, that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. 

As for the first condition, the court held that a person's sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. The court noted that the second condition assumes that, in the country of origin concerned, the group whose members share the same sexual orientation has a distinct identity because it is perceived by the surrounding society as being different. In this respect, the court held that the existence of criminal laws which specifically target homosexuals supports a finding that those persons form a separate group which is perceived by the surrounding society as being different. 

Based on these considerations, the court ruled that Article 10(1)(d) of the QD must be interpreted as meaning that the existence of criminal laws which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. 

Next, the court dealt with the third question whether Article 9(1)(a) of the QD, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the mere fact that homosexual acts are criminalised and accompanying that criminalisation with a term of imprisonment is an act of persecution. If the answer is negative, that court wishes to know in what circumstances an act is to be classified as an act of persecution. 

The court held that the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for finding that it constitutes persecution ex Article 9(1) of the QD. However, the term of imprisonment which accompanies a legislative provision which punishes homosexual acts is capable, in itself of constituting an act of persecution within the meaning of Article 9(1) of the QD, as long as it is applied in the country which adopted that legislation. The court ruled that it is for authorities to assess how the laws and regulations are applied in practice. The court concluded that if it is ascertained that a term of imprisonment which sanctions homosexual acts is actually applied in practice in the country of origin which adopted such legislation, it must be regarded as disproportionate and discriminatory and it constitutes persecution. 

The second questions was divided into several parts. The court replied to parts a) and b) and considered there was no need to reply to part c). The court examined parts a) and b) together. They concerned whether Article 10(1)(d) of the Directive, read together with Article 2(c) thereof, must be interpreted as meaning that it is unreasonable to expect that, to avoid persecution, an asylum seeker must conceal his homosexuality in his country of origin or exercise restraint in expressing it.  

The CJEU concluded that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation. 

The court emphasized that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person's identity that the persons concerned cannot be required to renounce it. Thus, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin to avoid persecution.