Asylum hard cases: sexual orientation, female genital mutilation and health in the jurisprudence of national supreme courts and the EctHR

Abstract

The short comment that follows examines three categories of cases regarding asylum and refugee rights according to the Geneva Convention provisions (1951) and the European Convention of Human Rights (Art. 3): a) cases where a fear of persecution to the country of origin is based on the applicant’s sexual orientation (homosexuality); b) cases where the fear of persecution is connected with practices of female genital mutilation; c) cases regarding serious health problems of the asylum seeker. The jurisprudence of national supreme courts and EctHR on these subjects especially regarding the interpretation of Art. 3 ECHR which forbids torture, inhuman and degrading treatment is analysed. As it will be briefly illustrated though an international consensus exists today regarding the protection of asylum seekers on the basis of sexual diversity (homosexuality), in cases of female genital mutilation and health problems the national supreme courts and the ECtHR are far more hesitant in acknowledging asylum rights and refugee status.