An Uzbek national applied for asylum on the grounds that she faced discrimination in her home country because she had HIV. Furthermore, she feared prosecution because according to Article 113 of the Uzbek Criminal Code, exposing others to HIV infection is criminalised. The Minister for Asylum and Migration deemed the fact that the applicant had HIV to be credible, however, it rejected the application as it found the risk of discrimination insufficiently serious. The District Court of the Hague, seated in Arnhem, declared the applicant’s appeal unfounded on 30 October 2024, and the applicant lodged a further appeal before the Council of State.

The applicant submitted country information to the minister to support her asylum claim, however, based on the provided reports, the minister deduced that persons from the LGBTQIA+ community in Uzbekistan are at risk of persecution on the basis of the Uzbek Criminal Code, whilst the applicant is a heterosexual woman.

Contrary to the opinion of the district court, the council found that the minister’s position was incorrect, as the law does not distinguish between gender or sexuality, and applies unilaterally to persons infected with HIV who knew about their infection and exposed another person to it, regardless of whether infection actually took place or whether the other person consented to the act knowing that the person had HIV. The council found that the sources submitted by the applicant did not substantiate the minister’s claim that in practice, the execution of the sentence is limited to HIV-positive LGBTQIA+ couples, rather they provided examples of convictions on the basis of sex within heterosexual marriages.

The council concluded that the district court failed to recognise that the minister did not provide a proper statement of reasons for the position it took in regard to the applicant’s alleged fear of criminal persecution because of her HIV infection. It declared the appeal well-founded, set aside the judgment of the district court, and ordered the minister to issue a new decision.