Steve Peers
While many nations have severe punishments for individuals identifying as LGBTI, the Court of Justice of the European Union (CJEU) recognizes persecution based on sexual orientation as grounds for asylum in the EU. This protection falls under the ‘particular social group’ category within the EU’s qualification Directive.
The CJEU has previously clarified that individuals seeking asylum on the basis of sexual orientation are not required to conceal their sexual orientation in their home country. However, the presence of discriminatory laws does not automatically guarantee asylum. The enforcement of these laws is a key factor in determining persecution.
A recent CJEU judgment addresses the methods used to verify the sexual orientation of asylum seekers. While rejecting the most intrusive practices, the court’s decision allows for potentially problematic approaches by national authorities.
The judgment
In response to a request from a Dutch court, the CJEU stated that an asylum seeker’s self-declaration of sexual orientation is insufficient and requires further assessment. Although EU law provides limited guidance on evaluating asylum seekers’ credibility, the CJEU emphasizes that this process must align with the EU Charter of Fundamental Rights. While these rules generally apply to all asylum seekers, adaptations for specific groups are allowed.
The CJEU acknowledges that questions based on stereotypes might have some use for national authorities, but decisions cannot be solely based on these stereotypes. Additionally, an asylum seeker’s inability to answer such questions should not be interpreted as a lack of credibility.
Protecting an individual’s right to privacy, the CJEU prohibits extensive questioning about an asylum seeker’s sexual history or requiring them to engage in sexual acts, provide recordings of sexual activity, or undergo medical examinations. These actions are deemed to violate the Charter’s Articles 7 and 1, which pertain to privacy and human dignity.
Furthermore, the CJEU states that delays in disclosing sexual orientation should not be automatically interpreted as a lack of credibility, acknowledging the sensitivity of the situation. However, the court does not address additional procedural matters outlined in the Advocate-General’s Opinion.
Comments
This judgment safeguards LGBTI asylum seekers from many intrusive and inappropriate forms of questioning and testing, such as the examination of men’s physiological responses to pornography, also known as phallometric testing. The court should have classified this practice as degrading treatment under Article 4 of the Charter.
The court rightfully dismissed the idea of individuals waiving their right to privacy, recognizing the potential pressure on other asylum seekers to do the same when asked to provide recordings or participate in sexual acts.
Importantly, the ruling clarifies that delayed disclosure of sexual orientation does not invalidate an LGBTI asylum seeker’s claim, acknowledging the challenges faced by individuals fleeing from countries where their identity is stigmatized.
However, the judgment’s reference to “useful stereotypes” regarding questioning LGBTI asylum seekers raises concerns. Although the court limits this to questions about support organizations, it could be misinterpreted as endorsing broader stereotypes about LGBTI individuals. While seemingly insignificant in everyday life, these stereotypes can have dire consequences if they lead to the denial of asylum.
While the court clarifies that these stereotypes should not be the sole basis for denying asylum or questioning an individual’s credibility, they can still contribute to the overall assessment.
Furthermore, the court’s approach does not fully acknowledge the diversity of sexual identity expression, particularly in contexts where homosexuality is suppressed.
While some questions are necessary to assess credibility beyond self-declaration, the court could have chosen more appropriate language than “useful stereotypes.” For instance, they could have endorsed the relevant UNHCR guidelines mentioned in the Advocate-General’s opinion.
Despite the judgment’s positive contributions, the CJEU’s resistance to incorporating non-binding human rights instruments may create practical challenges for LGBTI asylum seekers.
Barnard and Peers: chapter 26