The case concerned a Moroccan national who applied for international protection in Germany on 24 September 2021 on the grounds that she feared persecution due to her homosexuality upon return to Marocco. With decision of 5 September 2022, the BAMF rejected the application. The applicant appealed against this decision before the Regional Administrative Court of the Saarland.

The Regional Administrative Court of the Saarland considered the applicant’s homosexuality credible. The court reiterated that pursuant to country-of-origin-information, homosexuality in Morocco was punishable by Article 489 of the Moroccan Penal Code with a prison sentence of six months to three years and a fine, which was also applied in practice. Therefore, it could be assumed that people who openly live out their homosexuality in Morocco are at considerable risk of prosecution and punishment.

The Regional Administrative Court of the Saarland held that the fact that the risk of persecution could be reduced by not openly exercising the sexual orientation was irrelevant, because pursuant to the case law of the 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, an applicant can not be requested to keep his/her sexual identity a secret or exercise a particular restraint when living out the sexual orientation.

Based on the above, the Regional Administrative Court of the Saarland overruled the decision of the BAMF and decided that as a lesbian woman in her home country of Morocco, the applicant was a member of a social group within the meaning of Section 3b(1) No 4 of the Asylum Act and was therefore at risk of discriminatory persecution and punishment.