It is an error to suggest that international protection will be available only where the applicant has actually suffered persecution in the past. The Geneva Convention protects those who can show they have a well founded fear of persecution and the test is essentially forward looking. The question is whether there is a well founded fear that persecution may occur if the claimant is returned to his country of origin.

The fundamental question is whether the applicant is likely to have to endure a severe violation of his basic human rights if he is returned to his country of origin within the definition of persecution in Article 9(1)(a) of the Qualification Directive.

Homosexuals form part of a social group for the purpose of the Refugee Convention, and sexual orientation is an intrinsic and immutable feature of human identity. A homosexual cannot be expected to sublimate or conceal their very identity in order to escape persecution by the state or societal forces condoned by the state.

While a failure to claim asylum at the first opportunity normally goes to the overall credibility of an applicant and may indicate a claim is not genuine, a claimant who might otherwise have a valid entitlement to international protection may be not be disbarred simply by reason of his failure to claim asylum at an earlier opportunity in a different country, where he is otherwise generally credible.