Gays and lesbians from nations that have criminalized their sexual orientation can be granted refuge in the European Union, but only if they are demonstratively persecuted, a top EU lawyer recommended on Thursday in a case involving African nationals.

Homosexuality is officially a crime in 38 countries in sub-Saharan Africa, according to the Amnesty International human rights organization. Many African leaders say homosexuality is foreign to the continent and dismiss homosexuals as being "un-African."

Gays and lesbians living in the continent routinely face discrimination and sometimes violence. The death penalty has been floated as an option for punishment in Uganda and other nations.

The three gay men involved in the EU case stem from Sierra Leone, Uganda and Senegal - all countries where homosexual acts have been declared illegal and punishable with long jail sentences.

They applied for refugee status in the Netherlands, but the country's ministry for immigration and asylum declined their request and in a later appeal suggested that homosexuals can exercise "restraint" so that they are not persecuted.

The Dutch Council of State turned to the European Court of Justice for help in interpreting EU law.

Advocate General Eleanor Sharpston rejected the restraint argument and found that homosexuals can be considered "a particular social group," which under EU law is eligible for refugee status if there is "a well-founded fear of being persecuted" back home.

She also warned, however, that "the criminalization of homosexual activity does not per se constitute an act of persecution," the Luxembourg-based court said in a statement.

National authorities must assess whether the judicial procedures and "social practices" facing an individual would amount to "a severe violation of human rights," it noted.

The judges at the top EU court will have the final say on the matter, but they generally follow the advice of their advocate generals.