The Court of Cassation emphasises that the institution of asylum is applicable to a limited extent

A third-country national applied for international protection in the territory of the Slovak Republic, basing the reasons for his application on his homosexual orientation. He stated that his country of origin is currently not a democracy, is ruled by Orthodox fundamentalism and the regime is very intolerant towards LGBTQI+ persons, which includes the applicant himself. In his case, this intolerance manifested itself in the fact that people behaved very coldly and distantly towards him in employment but also in other spheres of life.

In the administrative procedure, the Ministry of Interior of the Slovak Republic – Migration Office (hereinafter referred to as “the defendant”) did not grant the applicant asylum or subsidiary protection on the grounds that the criteria for granting asylum under the Asylum Act were not met in the procedure, and its conclusion was upheld by the Administrative Court in Bratislava (Case No. 17 Saz 9/2024).

Cassation proceedings

In his cassation complaint, the plaintiff alleged, inter alia, that the administrative court had wrongly assessed the legal requirement of persecution of a social group. According to him, he was discriminated against in his country of origin on the ground of his sexual orientation, which amounted to persecution within the meaning of the Asylum Act.

The Panel of the Supreme Administrative Court of the Slovak Republic emphasised that the grounds for granting asylum are rather narrowly defined by law and do not cover the whole range of violations of human rights and freedoms recognised both in the international and national context. Therefore, the legal institution of asylum has a limited scope and applies only to persecution on the grounds recognised by law, where only the most inherent existence of the human being and the rights and freedoms associated with it are protected by this institution.

The Court of Cassation held that “although the asylum applicant is a member of a homosexual social group, and thus fulfils the first of the assumptions for the grant of asylum protection – membership of a social group – it is not sufficient for the grant of asylum to be based on membership of a social group alone, but the second condition, namely a well-founded fear of persecution on account of membership of that social group, must be fulfilled. That well-founded fear of persecution must be rooted either in the asylum seeker’s personal experience or in the fact that the group in question is a group that is persecuted in general in the country concerned. Unless the applicant can establish that both of these conditions are met, he cannot be regarded as persecuted on the ground of membership of a particular social group.”

Persecution by individuals would be asylum relevant if the State was unable or unwilling to provide protection from persecution, which was not established in the proceedings. Although intolerance towards minorities persisted in the asylum-seeker’s country of origin, it could not be concluded from the evidence gathered that it manifested itself in public violence. For example, the criminality of homosexuality in the applicant’s country of origin, which was also not established in the proceedings, is relevant to the assessment of whether the applicant is a social group generally persecuted in his country of origin.

The personal unpleasant incidents described by the plaintiff may represent subjective feelings of rejection of his sexual orientation, but they do not constitute such a significant interference with his liberty that he should be granted asylum. The future problems raised, in particular by reference to the integration efforts of the applicant’s country of origin, which will undoubtedly translate into increased protection by the State authorities in the form of measures to target and enforce non-discriminatory attitudes towards employees with different orientations, cannot, for the time being, be a sufficient ground for granting asylum.

Finally, the Panel of the Court of First Instance concluded that the applicant did not satisfy the conditions for asylum, since he had not shown that he had been persecuted in his country of origin on account of his membership of a particular social group.

In Case No. 2 Sak 4/2022, Panel No. 2 of the Supreme Administrative Court ruled unanimously on 31 July 2024, composed of: the President of the Panel, JUDr. Elena Berthotyová, PhD. (Judge-rapporteur) and members of the Panel Prof. JUDr. Juraj Vačok, PhD. and JUDr. Marián Trenčan.