The applicant is a national from Colombia and is a trans woman. Her request for asylum was rejected by the State Secretary for Justice and Security on 22 June 2021. On 20 October 2021, the District Court of the Hague, seated in ‘s-Hertogenbosch, found the applicant’s appeal against that decision to be unfounded. Subsequently, the applicant lodged an appeal against the judgment of the district court before the Council of State, arguing that she has a well-founded fear of persecution or runs a real risk of a violation of article 3 of the ECHR upon return, and on the grounds that the State Secretary failed to take into account the country information that she submitted during the decision-making process.

The Council carried out an assessment of the country information relating to the situation of trans people in Colombia. It noted firstly that Colombia has a progressive legal framework granting rights to the LGBTI community and taking various protection measures for these groups. For trans persons in particular, national legislation provides for trans persons above the age of eighteen to change their gender on all official identification documents, and obliges health insurance companies to bear the costs of gender-affirming and modifying surgeries. The President of Colombia has also promised the creation of a Ministry of Equality to strengthen the rights of the LGBTI community, amongst other minorities and vulnerable groups.

The Council also examined the violence faced by the LGBTI community in Colombia, including trans women. In this regard, the Council highlighted that despite progressive legal frameworks, 2020 saw a significant increase in murders, threats, and police violence against LGBTI individuals, with 226 murders reported, up from 106 in 2019. In 2021, there were 205 recorded murders within this community. According to the country reports submitted to the Council, the police are identified as a major threat, with numerous incidents of violence and intimidation reported. However, the Council agreed with the position of the State Secretary which argued that the number of violent incidents relative to the size of the trans community does not indicate systematic persecution. Furthermore, the Council agreed that the incidents, while serious, vary in severity and do not always meet the threshold for persecution or serious harm.

The judgment of the Council also addressed the discrimination faced by trans women in Colombia, who according to the available country information, struggle to access public services, formal employment, healthcare, and education. The council highlighted that NGOs report that only 4% of trans individuals hold formal jobs, and many resort to sex work due to limited opportunities. Trans women, in particular, face stigma, family rejection, and barriers to higher education, leading many to sex work or low-paid jobs like hairdressing.

Despite these challenges, the Council agreed with the argument put forth by the State Secretary that this discrimination does not alone qualify trans women for international protection. The Council stated that the country information does not give the impression that trans women in particular are limited in their livelihoods to such an extent that it is impossible for them to function in the social field, as described in paragraph C2/3.2 of the Aliens Circular 2000. The Council acknowledged the difficult social position of trans women but highlighted that a significant number still manage to find full-time or part-time employment. The council also made reference to the difference in discrimination levels between urban and rural areas, with less discrimination in wealthier city areas like Bogotá and Medellín.

On the possibility of obtaining internal protection, the Council acknowledged that trans individuals can access national protection mechanisms available to all Colombians, such as the Attorney General, the Inspector General, the Office of the Ombudsman, and others. Specific protections for sexual minorities and trans people, like the National Office for Urgent Affairs and shelters in larger cities, also exist. However, effective implementation of these protections is inconsistent, with ongoing discrimination, violence, and limited access to justice for sexual minorities.

The Council recognized that the police pose a threat to the trans community, and accessing justice is difficult due to prejudices among officials. It noted that high levels of impunity persist, with up to 90% in homicide cases and nearly 100% in death threat cases against the LGBTI community. Despite these challenges, the Council agreed with the State Secretary that trans women can report crimes, and prosecutions and convictions do occur. In 2021, 35 trans women were murdered, and there were 11 convictions for murder or attempted murder of trans women. The Attorney General's Office reported investigating 185 murders of LGBTI people from 2008 to mid-2021. The Council therefore concluded that the authorities are not entirely unwilling or unable to protect trans women and are not indifferent to their rights, making reference also to the Colombian Ministry of the Interior's 2020 action plan  which aims to improve the position of the LGBTI community.

In light of the above considerations, the Council concluded that the general security situation for trans woman in Colombia is not such that being an openly trans woman automatically leads to persecution or serious harm, and that therefore, a thorough individual assessment is necessary in combination with the available country information.

In its examination of the individual circumstances of the applicant, the Council noted that two incidents of violence experienced by the applicant in the past were deemed credible by the State Secretary. However, the Council nevertheless ruled that a significant amount of time had passed since these incidents, during which she did not report any additional incidents and even visited the Netherlands twice without applying for asylum. The Council also disagreed with the applicant’s argument that she will not be able to find work since she won’t be able to pretend to be a man after starting hormonal transition in the Netherlands. In this regard, the Council argued that she could still find work as a trans woman, especially in larger cities. As the applicant’s personal statements did not convincingly demonstrate that she would be unable to find work or function socially upon returning to Colombia, the Council ruled that these grounds of appeal were unsuccessful.

Nevertheless, the Council noted that the applicant was correct in her appeal that the decision by the State Secretary did not sufficiently take into account the country information that she submitted in the decision-making process. Therefore, the Council annulled this decision on the grounds of a failure to state reasons. However, following the assessment of the country information during the proceedings before the Council of State, the Council concluded that the legal affects of the State Secretary’s decision were to be maintained.