The applicant is a national of Algeria and claimed during his personal interview to have left Algeria after he was threatened with death because of his homosexuality and because he would not receive protection from neither the state or his family, and that homosexuality is a crime in Algeria, thus he left for fear. The BAMF rejected the application and stated that the applicant kept his homosexuality in secret until his departure and thus it is unlikely that his family or friends would know about it and that he would face any persecution.

The regional administrative court decided that the applicant must be granted refugee status. It considered that the applicant’s statements are credible and understandable, and the court is convinced that the applicant is in fact homosexual. The court noted that the applicant submissions are comprehensive and credible concerning the events in Algeria, that the applicant was willing to correct during the interview any inconsistencies, that the applicant made a choice of words used, without giving the impression of conceiving an event.

The court noted that the applicant is not likely to be threatened persecution by the State. Thus, the mere fact that homosexuality is punishable­ under the criminal code with imprisonment does not, as such, constitute an act of persecution within the meaning of Paragraph 3a(1) and (2)(3) of the AsylG ([CJEU], Minister voor Immigratie en Asiel v X, Y, and Z v Minister voor Immigratie en Asiel, C-199/12, C-200/12, C-201/12 , 7 November 2013.). On the other hand, a custodial sentence punishing homosexual acts, and which is actually imposed in the country of origin is a criminal­ offence within the meaning of Article 9(1) of the recast QD. Such a penalty infringes Article 8 of the ECHR, which corresponds to Article 7 of the EU Charter, and constitutes a disproportionate or discriminatory punishment within the meaning of Article 9(2)(c) of the recast QD (CJEU, [CJEU], Minister voor Immigratie en Asiel v X, Y, and Z v Minister voor Immigratie en Asiel, C-199/12, C-200/12, C-201/12 , 7 November 2013, and ECtHR, B (Gambia) and C (Switzerland) v Switzerland, applications nos. 43987/16 and 889/19, ECLI:CE:ECHR:2020:1117JUD000088919, 17 November 2020).

The court also consulted a number of country-of-origin information which confirmed that homosexuality is taboo in Algeria, that a large part of the population rejects the decriminalisation of homosexuality and that hostility against the LGBTI+ community and thus homosexual men has increased.

The court stated that the applicant belongs to a particular social group of homosexuals in Algeria, and according to the country-of-origin information, national authorities are not willing or not able to offer sufficient protection against persecution by private actors. The court identified no possibility for internal flight alternative and further concluded that the applicant cannot be expected to hide his homosexual orientation or to express it discretely in order to avoid acts of persecution.