The case concerned an Afghan applicant who was rejected asylum by BFA in 2017 and the negative decision on asylum was confirmed by the Federal Administrative Court in 2018. However, he was granted the status of subsidiary protection. The applicant was further detained for 15 months and condemned for a criminal offence, following which his subsidiary protection status was revoked. In 2022, BF submitted a new application for international protection. He is of Hazara ethnicity, of Shia Islam and stated for his subsequent application to be bisexual and that his sexual orientation would not be tolerated in Afghanistan. He also claimed that after the Taliban took overpower it would be impossible for him to return. The BFA considered that he did not prove any threat for being personally persecuted in the event of return but granted him subsidiary protection on basis of the poor security situation in Afghanistan.

In the appeal, the applicant argued that the BFA did not take into consideration that he is in a same-sex relationship, that he is bi-sexual, and that the BFA did not interview his partner as witness and did not examine country of origin information with regard to the situation of LBGTI in Afghanistan. The Federal Administrative Court allowed the appeal, consulted a large number of country-of-origin reports, including EUAA Country of origin Focus Afghanistan, 10 January 2022. The Federal Administrative Court has also analysed the situation of LGBTI in Afghanistan, and followed the EUAA guidelines and the CJEU jurisprudence, namely the related cases C-199/12 to C-201/12 in the judgment of 7 November 2013, where it ruled on persecution for sexual orientation.

The court considered as the CJEU, that an asylum seeker cannot be expected to keep his homosexuality secret in his country of origin in order to avoid persecution, in cases where an asylum applicant asserts that there are legal provisions in his country of origin which make homosexual acts a punishable offence.

Having regard to the country-of-origin reports, the court found that these reports are evidence that the LGBTI community in Afghanistan was already subject to significant societal violence prior to the Taliban takeover and that there have been reports of unlawful killings, physical attacks and sexual violence. Moreover, LGBTI community members report threats and violence from family members, former partners or neighbors.

The court stated that this treatment represents an unjustified intrusion of considerable intensity into his personal sphere, which is to be protected. The court considered that the applicant fear of persecution upon return was credible, thus it overturned the negative decision on asylum and granted him refugee status.