By Nuno Ferreira (Professor of Law, University of Sussex) and Denise Venturi (PhD student, Scuola Sant Anna, Pisa)*

Hungary’s Actions Raise Concerns Again

Hungary has been under scrutiny for controversial actions. Viktor Orban’s right-wing government has faced criticism from parts of Hungarian society and European institutions for policies targeting specific universities, constructing border barriers to deter refugees, and implementing other contentious measures. A recent source of alarm is Hungary’s treatment of asylum seekers, particularly those claiming persecution based on sexual orientation, an area already subject to criticism.

This concern stems from a case brought before the Court of Justice of the European Union (CJEU) by a Nigerian national seeking asylum in Hungary based on his sexual orientation. The case, referred to the CJEU in August 2016, calls into question the use of projective personality tests and similar methods by Hungarian authorities to assess the legitimacy of asylum claims based on sexual orientation. The Hungarian court specifically asked the CJEU if employing such tests to evaluate LGBTI (lesbian, gay, bisexual, trans, and intersex) asylum claims contradicted EU law, particularly regarding the right to dignity.

Although this case pertains to a 2015 incident, it highlights ongoing concerns about the treatment of LGBTI asylum seekers in Hungary. This case marks the third time the CJEU has addressed SOGI (Sexual Orientation and Gender Identity) asylum claims. It is hoped that this case will prompt a decision better aligned with international standards and relevant EU and UN guidelines.

Previous Cases Offer Hope for a Better Outcome

The CJEU initially addressed SOGI asylum claims in 2013, acknowledging that persecution based on sexual orientation could grant refugee status. However, a 2014 case involving three gay men seeking asylum revealed shortcomings in assessing the credibility of such claims. While the CJEU established some guidelines, it didn’t explicitly forbid using stereotypes, which are often misused in SOGI cases.

The 2014 judgment prohibited practices that violate applicants’ dignity and lack probative value, such as intrusive questioning about sexual practices, using “tests” to determine sexual orientation, and demanding evidence like films of same-sex activities. The CJEU also affirmed that revealing one’s sexual orientation later in the asylum process shouldn’t automatically discredit the claim.

While the 2013 judgment established the grounds for recognizing SOGI asylum claims, the 2014 ruling, while setting boundaries, didn’t provide concrete guidance for evaluating such claims. It primarily outlined what authorities should not do, leaving a gap in what they should do.

Using Unreliable Methods to Determine Asylum Eligibility

The current case highlights the continued use of contentious methods to evaluate SOGI asylum claims. Despite criticism from the UNHCR and NGOs, practices like relying on stereotypes and using methods with no scientific basis, such as phallometry, persist. The case in question involves the use of projective tests, including the “Draw-a-Person-in-the-Rain” test, Rorschach test, and Szondi test. These tests, intended to reveal subconscious thoughts and emotions, are controversial even in standard psychological evaluations and wholly inadequate for determining sexual orientation.

These tests operate on the flawed premise that specific personality traits correlate with particular sexual orientations, contradicting the prohibition against stereotypical judgments. The tests used in this case lack scientific backing and contradict the principle of avoiding stereotypes. The Hungarian authorities attempted to justify their use by citing the 2014 CJEU judgment, claiming they resorted to tests because they were barred from directly asking about the applicant’s sexual orientation. This argument is misleading, as the CJEU ruling only prohibited questions that violate an individual’s dignity, not general inquiries about their sexual orientation.

Disturbingly, instead of affirming the applicant’s credibility based on the absence of inconsistencies in his account, the Hungarian authorities used the test results to discredit him and deny him asylum. This highlights a dangerous trend of employing unreliable methods to prevent legitimate asylum seekers from receiving protection.

Advocate General’s Opinion Raises Concerns

Advocate General Wahl, in his opinion on the case, acknowledges the lack of scientific support for using personality tests to determine sexual orientation, citing a 2009 report by the American Psychological Association. He points out that sexual orientation is fluid and exists on a spectrum, making attempts to categorize it based on such tests fundamentally flawed.

While acknowledging the limitations of these tests, AG Wahl suggests they could be admissible under certain conditions. He argues that consent should be obtained, and the tests should be conducted respectfully, upholding the individual’s dignity and right to private and family life. However, he fails to address the inherent power imbalance in an asylum process, where refusing a test, even one deemed unnecessary and potentially violating, could jeopardize an applicant’s case. This suggestion places an unfair burden on already vulnerable individuals.

Although AG Wahl acknowledges the dubious scientific basis of these tests and their limited value in this context, he still suggests they can be considered, leaving room for misuse by national authorities. He attempts to mitigate this by stating that courts are not obligated to accept the test results and can prioritize other evidence. However, this offers little comfort to asylum seekers who might face biased decision-making. The opinion alarmingly omits any mention of the “benefit of the doubt” principle, a cornerstone of refugee law that should be applied in cases with limited evidence. The focus should be on appropriate questioning techniques and building a trustworthy rapport with the applicant, as outlined in UNHCR guidelines.

A more definitive stance, similar to AG Sharpston’s opinion in the 2014 case, stating that these tests inherently infringe on fundamental rights and should be inadmissible, would have been more appropriate. Instead, AG Wahl’s opinion offers inadequate guidance to the CJEU, potentially jeopardizing the progress made in protecting LGBTI asylum seekers’ rights.

Looking Ahead: The CJEU’s Decision and Its Implications

The CJEU now faces a crucial decision. It can uphold the principles established in previous rulings and clearly prohibit using personality tests to assess the credibility of SOGI asylum claims. This would align with existing case law and prevent misinterpretations that could undermine fundamental rights. Alternatively, if the CJEU accepts the AG’s opinion and allows such tests, it would need to establish stringent safeguards to ensure they are not misused. This would involve clearly defining the limited scope of such tests, ensuring genuinely informed consent, and preventing them from becoming a tool to discredit applicants based on preconceived notions.

However, allowing these tests, even with safeguards, sets a dangerous precedent and could reverse the progress made in protecting SOGI asylum seekers. The CJEU should prioritize the dignity and rights of asylum seekers by unequivocally rejecting the use of unreliable and harmful methods in evaluating their claims. It is hoped that the CJEU will recognize the inherent flaws in using such tests and issue a decision that prioritizes the rights and dignity of SOGI asylum seekers.

The authors wish to thank the useful comments provided by Dr Carmelo Danisi and Dr Moira Dustin on previous drafts of this text.

*Reblogged with permission from the EUMigrationlaw blog

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

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