4 December 2014

The Court of Justice of the European Union has held that the Charter of Fundamental Rights places certain restrictions on national authorities when trying to establish the sexual orientation of asylum seekers who claim they fear persecution on account of their homosexuality.

While the Court has ruled that self-declaration by the asylum seeker is not sufficient, it has also clarified that submitting asylum seekers to certain intrusive tests or requiring the submission of evidence demonstrating homosexuality infringes the right of human dignity. This conclusion would still be the same if the applicant voluntarily produced such evidence. . In addition, questions by authorities relating to the details of the applicant’s sexual practices are contrary to the respect for private and family life enshrined in the Charter. Moreover, the decision on the credibility of the asylum seekers cannot be “solely on the basis of stereotyped notions”. The Court also submitted that a local authority could not conclude that an individual lacked credibility because he/she did not declare their homosexuality at the beginning of their application.

Commenting on the judgment, Professor Steve Peers said: “In A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities”. In particular, Peers criticises the Court’s reference to ‘useful stereotypes’ when questioning asylum seekers who are lesbian, gay, transgender or intersex (LGBTI). Although the Court only refers in this context to questions about the applicant’s knowledge of NGOs supporting LGBTI individuals, Peers warns that the ruling might be interpreted to allow other stereotypes into national authorities’ assessments, even if the Court rules out relying on the answers to such questions as the sole basis for denying asylum. 

ECRE welcomed aspects of the Court’s judgment which place restrictions on authorities, in turn safeguarding LGBTI asylum seekers fundamental rights, but regretted the lack of clearer guidance when assessing these claims. “This judgment is a step forward. The Court underlines that when assessing the asylum claims of people seeking protection from homophobia, national authorities should not use humiliating material and intrusive and abusive questioning and tests. Such methods would violate human dignity and be contrary to EU law. The Court also asks the authorities to take into account the vulnerability of asylum seekers during the assessment, especially when they are supposed to reveal intimate details. The Court, however, does not give clear guidance to the national authorities on how to assess such claims”, said ECRE’s Senior Legal Officer Julia Zelvenska.  

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