Sexual orientation and refugee law: How do legal sanctions criminalizing homosexuality engage the definition of persecution?

Several debates persist on how the key terms of the refugee definition apply in the context of LGB asylum claims. For example, identifying whether the thresholds of persecution have been met when the maltreatment experienced by LGB persons is often distinctive is particularly challenging. This chapter focuses on one of the most pressing of these debates, namely the status and assessment of legal sanctions that criminalize sexual acts between same-sex partners. It outlines the development of a working definition of persecution across asylum-granting jurisdiction and follows with a brief overview of the prevailing treatment of criminal sanctions across many traditional asylum-receiving states, with explicit reference to British asylum policy and the CJEU case of X, Y and Z. Finally, the chapter advances a viewpoint on the serious and, thereby, persecutory nature of the ‘mere existence’ of such legal sanctions.