M.C., a national of Guatemala, requested international protection in France, as he feared being exposed to persecution or serious harm from people in his entourage and the surrounding society if he returned to his country of origin, due to his membership in the particular social group of homosexuals in Guatemala, without being able to benefit from the authorities’ effective protection.
By decision of 23 October 2023, the French Office for Refugees and Stateless Persons (OFPRA) rejected the request. The applicant appealed the decision before the National Court of Asylum (CNDA).
The CNDA recalled that the granting of refugee status due to persecution related to membership in a particular social group based on a common sexual orientation cannot be conditional on the public manifestation of that sexual orientation by the person seeking refugee status. It further added that the social group is not established by those who compose it, nor even by the objective existence of characteristics attributed to them, but by the perception of these people by the surrounding society or institutions. The CNDA also highlighted that it cannot be requested from an asylum applicant to have to conceal their homosexuality or exercise restraint in expressing their sexual orientation in order to avoid the risk of persecution in their country of origin. The court further observed that while the existence of criminal legislation specifically punishing homosexual persons generally allows the conclusion that these individuals form a particular social group, the absence of criminal provisions has no impact on the assessment of the reality of persecution based on this membership. It noted that such persecution may be based either on common law provisions improperly applied to the social group in question or on behaviour emanating from the authorities, encouraged or favoured by these authorities, or even simply tolerated by them.
Concerning the situation in Guatemala, the CNDA cited public sources from the International Lesbian and Gay Association (IGLA) and Human Rights Watch to note that although the criminal code of Guatemala did not include any criminal provision concerning sexual relations between persons of the same sex, there were real and persistent threats on the fundamental rights of sexual minorities, denounced in particular by the Unit for the Protection of Human Rights Defenders in Guatemala (Defensoras y Defensores de Derechos Humanos de Guatemala) in a report published in June 2022.
The CNDA further noted that the country has no legal framework ensuring effective protection for LGBTIQ people, even though it is a signatory to several conventions for the protection and defense of human rights, and that there is an absence of state structures dedicated to this population, the only one being the Office of the Defender of Sexual Diversity of the Human Rights Ombudsman (Procurador de los derechos humanos), whose powers are limited to issuing recommendations.
Moreover, the court noted that while public information recorded an increase in serious violence and discrimination committed against LGBTIQ people, the Ombudsperson highlighted the invisibility of victims in the Guatemalan justice system, which created a context in which perpetrators escaped accountability for the crimes committed and deterred victims from filing complaints, with more than 95% of cases reported to the public prosecutor's office ending without further action or with impunity. In addition, the court cited a report from 11 January 2024 by Human Rights Watch which indicated that from January to June 2023, at least 17 people belonging to the LGBTIQ community were killed, making it the deadliest six-month period since 2020. It further cited another report by Human Rights Watch from November 2023, which explained that in addition to being discriminated, LGBTIQ people experienced greater social and economic inequality.
The CNDA also cited a report by Amnesty International published in April 2024, according to which at least 34 people were killed by the end of 2023 because of their sexual orientation or gender identity, while other sources reported a higher number of victims, even though the country's overall homicide rate was decreasing, and noting that the majority of the victims had been men.
The CNDA referenced an additional report on "Comparative Realities - Experiences of Violence and Exclusion of LGBTQ+ People: Exploratory Analysis in Guatemala," published in November 2020, which indicated that gay men experience multiple forms of violence within the family, that nearly 48% have experienced violence at work, and that more than 85% had been victims of sexual violence, while 86% of them declared that they have not filed a complaint.
Based on all the above-mentioned sources, the CNDA concluded that homosexual people in Guatemala constitute a particular social group within the meaning of the Refugee Convention and are likely to be exposed to a risk of persecution due to their sexual orientation.
Concerning the applicant, the CNDA noted that the evidence in the case and the applicant’s precise, personalized, and detailed statements rendered as established his sexual orientation, his life in Guatemala, the trauma he had lived due to his partner being killed because of his sexual orientation, his isolation from his community, his suicide attempts, the attacks and threats he had suffered and his fears upon return.
Thus, the CNDA held that the applicant had a well-founded fear of persecution, in the event of return to Guatemala, due to his membership in the particular social group of homosexual people and provided him with refugee protection.