Immigration and LGTBQ+ rights – The right to a Safe Haven

Every year thousands of people are forced to leave their home country because they are victims of violence and persecution. Among the most common reasons for such violence and persecution is certainly sexual orientation.
Homosexuality is still a crime in no less than 71 countries in the world, six of which even punish it with the death penalty.
The issue of relief from persecution due to homosexuality emerged relatively recently with the first applications for asylum under international protection on the grounds of sexual orientation date back to the 1980s, and it was in the 1990s that the question of how to apply the 1951 Geneva Convention to cases such as these began to be raised.
The Geneva Convention states that refugee status applies to anyone who is outside their home country that has a justified fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In 2011, Directive
 expressly specified that the definition of social group also includes gender identity and sexual orientation.
Italy has shown itself to be quite protective of migrants and asylum seekers applying on LGBTQ grounds. For example, in Order No. 15981 of 2012, the Italian Supreme Court ruled positively on the recognition of asylum applications based on sexual orientation and stated that, since in countries where sexual orientation is criminalized where LGBTQ persons are forced to expose themselves to severe penalties in order to be able to freely live their lives within their sexuality, this constitutes a violation of a fundamental right enshrined in our Constitution, the European Court of Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union.

This, according to the Supreme Court, “automatically reflects on the individual condition of LGBTQ persons, placing them in a situation of persecution and justifies the granting of the protection sought”.

More recently, in judgment no. 11176/2019, the Court of Cassation stated that the absence of rules directly or indirectly prohibiting consensual relationships between persons of the same sex does not per se exclude international protection, it must also be ascertained whether the State, in such a situation, cannot or does not wish to offer adequate protection to the LGBTQ person and therefore whether, in view of the applicant’s concrete situation and his particular personal condition, they may suffer, on account of
their sexual orientation, a serious and individual threat to their life or person and therefore making it impossible to contemplate of living in their country of origin without a very real risk to their psychological or physical safety.
This is a very significant judgment by the Supreme Court, as it allows LGBTQ persons to obtain protection in Italy even in cases in which the climate of hatred present in their country makes their lives untenable but the Constitution does not expressly legislate against such relationships. Giambrone, has a sensitive empathic team of lawyers in the in its LGBTQ division Gay Lawyers which specialises in the protection of LGBTQ+ rights, and is able to provide assistance and help to individuals seeking to obtain a residence permit for political asylum or to those who, as Italian and/or foreign nationals already residing in Italy or want to help their partner obtain a residence permit.

 – Martina Iemma, Trainee Lawyer

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