In her recent Opinion in Joined Cases C-148/13, C149/13 and C-150/13, A, B and C, AG Sharpston agreed with the view that “an individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life.” She observed that homosexuality is not considered a medical or psychological condition in the European Union (EU) and no medical test exists to determine sexual orientation. She considered the pseudo-medical test of phallometry, focusing on the subject’s physical reaction to pornographic material, to be a “particularly dubious” method to confirm homosexual orientation. She thought that any medical examination to confirm sexual orientation violates article 3 (right to integrity of the person) and article 7 (respect for private and family life) of the Charter of Fundamental Rights of the European Union (CFR) and also falls foul of the proportionality requirement under article 52(1). Therefore, AG Sharpston concluded that establishing a gay asylum claimant’s credibility using a medical test is a terrible idea. The question posed by the referring court, the Raad van State (Netherlands), was abstractly expressed in the following terms:
What limits do the Qualification Directive, and the Charter, in particular articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?
For AG Sharpston, this broad conceptual question is in turn related to complex and sensitive issues regarding personal identity and fundamental rights vis-à-vis the position of Member States when applying minimum harmonisation measures such as Directive 2004/83/EC (the Qualification Directive) and Directive 2005/85/EC (the Procedures Directive). Moreover, dealing with these issues triggers a series of other questions such as whether Member States must accept an asylum applicant’s averred sexual orientation? Similarly, as a matter of EU law, are Member States’ authorities permitted to medically examine sexual orientation and how should that process be conducted compatibly with fundamental rights? Furthermore, are asylum claims made on sexual orientation distinct from other asylum claims and should special rules be applied to them?
A, B and C are gay men whose asylum applications were refused because of perceived uncertainty about the truthfulness of their sexual orientation. The Dutch authorities did not consider A’s willingness to submit himself to an examination or C’s production of a film depicting himself performing sexual acts with another male as conclusive of their contended homosexuality. Objections regarding B included ambiguity as to his feelings about his sexuality and sexual relationships and the handling of the realisation his own sexuality in a Muslim country.
Shedding much needed light on the issues at stake, AG Sharpston said at paragraph 66:
In my view it is clearly contrary to article 7 of the Charter to require applicants to produce evidence such as films or photographs or to request them to perform sexual acts in order to demonstrate their sexual orientation. I add that, again, the probative value of such evidence is doubtful because it can be fabricated if needed and cannot distinguish the genuine applicant from the bogus.
It is worth remembering that the CJEU has recently held (see post) that the mere criminalisation of homosexuality is insufficient (read judgment) to found persecution and the legislation in question must be enforced in a manner that results in a serious violation of fundamental rights. The parties – including the UNHCR, the Netherlands, Belgium, the Czech Republic, France, Germany and Greece and the European Commission – in the instant case agreed that sexual orientation cannot be objectively verified but presented different views in relation to whether Member States should verify whether the asylum seeker is homosexual and satisfies the requirement of being a member of a social group.
AG Sharpston said that the absence of express wording in the Qualification Directive regulating Member States’ discretion regarding the practices or methods for assessing an applicant’s credibility does not mean that EU law places no limits on that discretion. She explained that the Member States needed to adhere to the decisive benchmarks contained in the CFR because:
57. The Charter provides overarching standards that must be applied in the implementation of any directive. The Qualification Directive harmonises by introducing minimum standards for obtaining refugee status within the European Union. It would undermine the CEAS [The Common European Asylum System], in particular the Dublin system, if Member States were to apply widely divergent practices when assessing such applications. It would be undesirable if the differences in its implementation led to applications being more likely to succeed in one jurisdiction than in another because the evidentiary requirements were easier to satisfy.
She also said that despite involving different issues, Christine Goodwin v United Kingdom [GC], no. 28957/95, (2002) 35 EHRR 19 and Van Kück v Germany, no. 35968/97, (2003) 37 EHRR 51 – gender identity and transsexuality cases where the Strasbourg Court has stated that the notion of personal autonomy is an important principle underlying the guarantees contained in article 8 ECHR – served as “valuable guidance”. AG Sharpston noted that the Strasbourg Court has not had the opportunity to decide whether article 8 ECHR guarantees a right not to have averred sexual orientation examined by the competent authorities in particular in the context of an application for refugee status. However, she read the existing case law as meaning that persons have a right to define their own identity which includes defining their own sexual orientation because the notion of personal autonomy is an important principle underlying the interpretation of the protection afforded by article 8 ECHR. Therefore, AG Sharpston reasoned that an applicant’s definition of his own sexual orientation must play an important role within the assessment process of applications for refugee status under article 4 of the Qualification Directive.
For AG Sharpston, an asylum claimant’s definition of his own sexual orientation remains crucial to determining refugee status and, as argued by the UNHCR, should logically always be the starting point of the assessment process. On the other hand, to maintain the integrity of the asylum system and to filter out bogus claims, the Member States are entitled to examine an asylum seeker’s declaration as regards sexual orientation. However, in doing so, claimants’ human dignity or personal integrity must not be undermined. At paragraph 62, in relation to phallometry, she said that:
I consider such tests to be prohibited by articles 3 and 7 of the Charter. Phallometry is a particularly dubious way of verifying homosexual orientation. First, it involves the competent national authorities in facilitating the purveying of pornography in order to enable such tests to be conducted. Second, it ignores the fact that the human mind is a powerful instrument and a physical reaction to the material placed before the applicant could be provoked by the person imagining something different from the image that he is being shown. Such tests fail to distinguish between genuine applicants and bogus ones and are clearly therefore ineffective as well as in violation of fundamental rights.
Apart from phallometric testing, intrusive questioning (including things like requesting photographic and video evidence of sexual practices and also encouraging and accepting the submission of such material as evidence) also breaches the right to respect for physical and mental integrity and private life as laid down in the CFR. AG Sharpston also clarified at paragraph 67 that over and above articles 3 and 7, it was also possible that intrusive methods “might well breach other rights guaranteed by the Charter.”
Equally, given that it remains impossible to prove sexual orientation, claimants would be able to game explicit questioning by concocting answers and could also fabricate photographs and videos. AG Sharpston therefore opined that any assessment technique trying to prove sexual orientation should not be used in processing asylum claims. Agreeing to medical examinations, intrusive questioning, or providing explicit evidence makes no difference and she said at paragraph 67:
Consent to a medical test for something (homosexuality) that is not a recognised medical condition (i) cannot remedy a violation of article 3 of the Charter, (ii) would not increase the probative value of any evidence obtained and (iii) cannot render such a limitation of the rights guaranteed by article 7 of the Charter proportionate for the purposes of article 52(1). Furthermore, I also entertain serious doubts as to whether an applicant, who is the vulnerable party in the procedure of applying for refugee status, could really be deemed to have given fully free and informed consent to the competent national authorities in such circumstances.
Overall, intrusive and humiliating methods of ascertaining sexuality based on trite views about homosexuality, were contrary to the discrete examination required by the Qualification Directive. So the AG thought that it was preferable to concentrate on credibility, i.e. is the claimant’s narrative “plausible and coherent”?
B asserted that if the court does not accept that the question of an applicant’s sexual orientation should be established simply on the basis of his declaration then the burden of proof should shift to the competent authorities to prove that he is not homosexual. AG Sharpston disagreed and explained that the process of cooperation laid down in article 4(1) of the Qualification Directive is not a trial: it is not for an asylum claimant to prove the claim or for Member States’ authorities to disprove it. She said that imposing a high standard of proof, such as beyond reasonable doubt, or a criminal or quasi-criminal standard would make it virtually impossible or excessively onerous for an asylum claimant to submit the elements needed to substantiate his request under the Qualification Directive. Therefore, it is sensible that both parties should cooperate towards a common goal: AG Sharpston preferred that an official making the determination as regards refugee status is afforded an opportunity to see the claimant give his account but she thought that a full report on the claimant’s demeanour during the course of the examination would also suffice.
To uphold the principle that a person has a right to be heard before an adverse decision is made in respect of him, AG Sharpston considered it both desirable and prudent to ensure that A, B and C are given the opportunity to address any specific issues concerning their credibility prior to a final decision and that the official determining their claims is able to observe their demeanour when giving their respective accounts or has access to information indicating how they came across in interview. Ultimately, reiterating that credibility is the key issue where there is little or no corroborative evidence, AG Sharpston concluded that the limits under EU law that apply to the credibility assessment of applications for refugee status based on sexual orientation were the same as those that apply to claims based on other grounds of persecution in the Qualification Directive.
The important lacuna in AG Sharpston’s shopping list is that it provides absolutely no guidance in what approaches the Court should endorse. She refers to an agreement amongst the parties that there is no objective method for verification .
And he concludes his analysis by observing that:
The Court’s judgment should be with us by the end of this year. Whilst I celebrate AG Sharpston’s ruling out sexually explicit questioning and material, reliance of medical and pseudo-medical evidence, as all violations of the EU Charter even with consent, all of us working with LGB applicants need to ensure that we focus on the narrative, and not how the narrative is disclosed. If we focus on demeanour, noting that for LGB applicants who have been forced to be evasive and live double-lives prior to fleeing to Europe in order to survive, and then stereotypes are extremely dangerous, then there is a real risk that those who genuinely need our protection will be failed by the system out of sheer ignorance.