The case concerned an applicant from Guinea who sought asylum in Germany and declared in his statements and during the interview that he had same sex relations with his parental uncle’s son, and he was caught by his mother and his father threatened him with a gun. He mentioned to have been raped by a man when he was a child at the age of 10 and to have had sexual relationships only with men. The BAMF rejected the application by decision of 29 April 2019, and he appealed against complaining that if returned to his country of origin he would face persecution by his parents. He alleged that he continues to be attracted by men in Germany and he feel it difficult to express his sexual orientation openly due to the stigmatisation experience in his country of origin.

The regional administrative court of Hamburg noted that in Guinea homosexual people form a specific social group and that homosexuals have a clearly defined identity, as they are viewed as different by the society surrounding them (Section 3b, Paragraph 1, No. 4, Clause 1, Letter a of the Asylum Act) as it follows from the criminal offense discriminating according to sexual orientation according to Article 325 of the Guinean Penal Code.

The regional court explained that according to Section 3b (2) of the Asylum Law, the assessment of whether a foreigner fear of persecution is based on one of the grounds for persecution is made based on the characteristics attributed to the applicant by the potential actors of persecution. In this case, the applicant is considered homosexual by his family members, he was discovered by his mother while having sex with his cousin and he was threatened to be killed by his father.

The court mentioned that the determining authority, when examining an asylum application based on fear of persecution because of the asylum seeker’s sexual orientation, do not have to consider his alleged orientation to be proven solely on the basis of his statements. The authority should analyse the facts in the given specific context of asylum application, by examining the events and circumstances in accordance with Article 4 of Directive 2004/83 (CJEU, A., B., C. v Staatssecretaris van Veiligheid en Justitie (NL), Joined Cases C‑148/13 to C‑150/13, ECLI:EU:C:2014:2406, 02 December 2014). The court continued to mention that the formation and discovery of one's own sexual identity is a complex process that only follows typified patterns that can be determined beyond the individual to a limited extent. Thus, the only decisive factor is how credible and comprehensible is the way one's own sexual identity is described. Based on the personal interview and other statements, the court concluded that the applicant’s submission has sufficient credibility characteristics that distinguish true from false allegations. The applicant reported the incident with his mother and father which triggered his departure in a concise and consistent manner and substantiated past humiliating experiences and physical punishments by his father.

The fear of persecution is justified if the foreigner is actually threatened with the aforementioned persecution due to the circumstances in his country of origin, taking into account his individual situation, i.e. with a considerable probability.  This standard of probability presupposes that, in a summary assessment of the facts of life being examined, the circumstances in favour of persecution have greater weight and therefore outweigh the facts speaking against it. In the event of prior prosecution, the simplification of proof applies in accordance with Article 4(4) of recast QD and the fact that an applicant has already been persecuted or suffered other serious harm or was imminently threatened with such persecution or harm is a serious indication that he might be at risk in the future.

The court considered that the fear of persecution is justified because the applicant is threatened with persecution due to the circumstances in his country of origin, where returnees are exposed to a risk of acts of persecution because of homosexuality by social forces such as the family and extended members. In individual cases, individual persecution by social forces is to be feared, with the risk prognosis being based largely on the previous persecution suffered. 

The court also made reference to a large number of COI reports and concluded that the applicant would face persecution upon return, thus refugee status was granted.