Case Watch: EU Court Ruling Backs Refugees from Anti-Gay Persecution
By Zsolt Bobis
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
How should European authorities assess the claims of someone who seeks political asylum on grounds of persecution on the basis of sexual orientation? In some countries, applicants have in the past been faced with questions about their familiarity with the works of Oscar Wilde, or with the music of Madonna—reflecting often humiliating and entirely inappropriate stereotyping.
Now, thankfully, a ruling from the Court of Justice of the European Union (CJEU) should make it harder for governments to deny asylum to applicants on the grounds that they cannot “prove” their homosexuality. The case—A, B, C v. Staatssecretaris van Veiligheid en Justice—combined three separate cases in which individuals had sexual-orientation asylum applications rejected by the Netherlands.
The first applicant, after being told his claim was not credible, offered to take part in a “test,” or to perform a same-sex sexual act to prove his homosexuality—a proposal that was rejected. In the second case, the applicant’s statements on his homosexuality were discredited as “vague, perfunctory and implausible” and lacking in “details about his emotions and his internal awareness of his sexual orientation.”
The third applicant only presented homosexuality as a basis for persecution in his second application, arguing he could not do so before leaving his country of origin. He also submitted video evidence of same-sex sexual activity he had engaged in. The Dutch State Secretary, however, found the applicant’s statement on his homosexuality was not credible, citing the fact he had not mentioned his sexual orientation in his first application, and also because he could not explain how he became aware of his homosexuality or mention any Dutch organizations working on the rights of homosexuals.
In their appeals, the applicants asserted that self-identification as homosexual should constitute the sole basis for determination of their sexual orientation. They also argued that the right to human dignity and respect for private life should be respected during the credibility assessment process, and that this should also take account of the shame and cultural reservations that might restrain people from speaking freely about their homosexuality. Moreover, any conclusion that an application for asylum lacked credibility should not automatically be extended to an applicant’s claims of sexual orientation.
The Court of Justice proved receptive to most of those claims. While it ruled that declarations made by asylum-seekers in relation to their sexual orientation are only the starting point in the assessment process and may require confirmation, it concluded that the methods of assessment have to comply with relevant EU legislation, including the Charter of Fundamental Rights.
In light of that, the court held that the assessment of the applicant’s assertions regarding his or her sexual orientation cannot be founded on questions based solely on stereotypical notions—even if they may be useful for authorities during the process— since EU law requires that authorities conduct an assessment that is sensitive to the claimant’s individual position and personal circumstances. Therefore, the lack of knowledge on Dutch organizations working on homosexuals’ rights cannot, in itself, lead to the conclusion that a claim is not genuine.
The court also declared that detailed questioning with regard to the applicant’s sexual practices breached the fundamental rights guaranteed in the European Union’s fundamental rights charter, particularly the right to respect for private and family life. It also prohibited, as a violation of human dignity, the acceptance by national authorities as evidence the performance of same-sex sexual activities by the applicant, or recording of such acts as well as his or her submission to “tests” to establish homosexuality. The court noted that, beyond their questionable probative value, the authorization or acceptance of such evidence may lead to their establishment as a de facto requirement in the credibility assessment process. The decision thus should put an end to humiliating practices like “phallometric” testing or anal examinations.
In addition, recognizing the sensitivity inherent in declaring one’s homosexuality to authorities, the court ruled that the fact that the applicant did not declare his or her sexual orientation at the outset cannot, in itself, lead to an adverse credibility assessment. The court highlighted that the personal or general circumstances as well as the vulnerability of the applicant need to be taken into account, and an individualized assessment needs to be conducted. Given the reality that nearly eighty countries still criminalize same-sex relations, and the death penalty is on the books for consensual same-sex conduct in seven of them, applicants fleeing these countries may not be in a position to declare their homosexuality on the first occasion they are given to launch an asylum claim.
The ruling comes on the heels of last year’s CJEU ruling in X, Y, Z v. Minister voor Immigratie en Asiel, in which the court held that persecuted homosexuals seeking refuge in the EU could enjoy protection under relevant European legislation, and that they could not be sent back to their country of origin and required to conceal their homosexuality or to exercise reserve in the expression of their sexual orientation. The court also ruled that criminalization of same-sex activities when enforced in the country of origin must be regarded as constituting an act of persecution.
Asylum claims about sexual orientation are difficult both for the applicant to substantiate and for authorities to evaluate. To make sure that people seeking asylum due to persecution on grounds of sexual orientation are properly protected across the EU, national guidelines should be developed for decision-makers that take account of not only the Court of Justice’s relevant decisions but the guidance provided on this subject by the UN High Commissioner for Refugees (UNHCR) as well.
Until September 2021, Zsolt Bobis was a senior associate policy officer with the Open Society Justice Initiative.