As Lord Hope DPSC (as he then was) explained some years ago, the High Contracting Parties to the to the Convention relating to the Status of Refugees 1951 did not envisage persecution for reasons of homosexuality as a problem. Lord Hope linked the rise of intolerance to the rise of Christianity and Islam in Africa and Asia and he was dismayed at the punishments some states impose on homosexuals. Noting the widening gulf between the developed and developing world on the issue of gay (read “LGBTI”) rights, the eminent jurist remarked that “[i]t is one of the most demanding social issues of our time” and he considered it crucially important that gay people are provided with the protection – “no more … but certainly no less” – that they are entitled to. In X, Y and Z, the CJEU held in 2013 that the criminalisation of homosexual acts per se did not constitute an act of persecution but that the enforcement of anti-gay laws did amount to persecution.
In this CJEU case, three third-country nationals, A, B and C (“the applicants”) were gay men whose asylum applications under the Vreemdelingenwet 2000 were refused by the Staatssecretaris van Veiligheid en Justitie because of 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 intimate sexual acts with another male as conclusive of their contended homosexuality. Objections regarding B included vagueness about his sexual relationships and insufficient detail about his feelings and how he came to terms with his homosexuality in a Muslim country as a Muslim man.
A’s first application was refused. He did not challenge the decision and reapplied but his fresh application was refused because the credibility of his declared sexual orientation had still not been established. C’s first application for asylum did not mention persecution because of homosexuality. He did not challenge the first refusal but in his second application he claimed that he had not been able to indicate his homosexual feelings until after leaving his country of origin.
The applicants’ appeals against those rejections were dismissed by the Rechtbank’s-Gravenhage. Aggrieved, they appealed to the Raad van State which referred to the CJEU the question whether article 4 (assessment of applications for international protection) of Directive 2004/83 (“the qualification directive”), read with the Charter of Fundamental Rights of the European Union (“CFR”), imposed on the competent national authorities, acting under the supervision of the courts, certain limits when they assessed the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation. The referring court was of the view that, to a certain extent, the mere fact of putting questions to gay applicants for asylum may infringe the rights guaranteed by the CFR.
In her opinion of 17 July 2014 (see here), Advocate-General Sharpston said “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 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 CFR and also falls foul of the proportionality requirement under article 52(1).
Therefore, the Advocate-General concluded that establishing a gay asylum applicant’s credibility using a medical test is a bad idea. In particular, she noted at para 62 that by conducting phallometric tests competent national authorities would be “facilitating the purveying of pornography” and that in order to provoke sexual arousal a person could imagine something different from the sexual material they are being shown: in reality, the tests could easily be gamed by cunning asylum-seekers. Opining that the human mind is a powerful instrument, Advocate-General Sharpston concluded that “[s]uch tests fail to distinguish between genuine applicants and bogus ones and are clearly therefore ineffective as well as in violation of fundamental rights.”
S Chelvan applauded Advocate-General Sharpston for making clear at para 67 that “consent” to medical examinations, intrusive questioning, or providing explicit evidence did not change her analysis about the CFR because an “applicant’s 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).” But she was equally lambasted for not ruling out, at para 92, an “assessment of credibility arising out of demeanour” and S Chelvan exhorted everyone to “focus on the narrative, and not how the narrative is disclosed.” He argued further that, coupled with stereotypes, a focus on demeanour runs a:
real risk that those who genuinely need our protection will be failed by the system out of sheer ignorance.
The CJEU’s Judgment
The court said at paras 49 and 50 that the assertions by an asylum-seeker as to his sexual orientation are merely the starting point in the process of assessment of the application under article 4 of the qualification directive and it was for the applicant to submit in a timely manner all the elements to substantiate his claim. The court observed at para 51 that in circumstances where an applicant was unable to meet the requirements of article 4(5)(a)–(e), “statements made by applicants for asylum with respect to their declared sexual orientation may require confirmation.” Whilst identifying sexual orientation (an aspect of personal identity) was for the claimant, gay people’s claims were no different from those relying on other grounds for persecution. The CJEU held at para 53 that the procedures used by the competent authorities to evaluate the statements and evidence submitted in support of asylum claims must comply with the qualification directive, the Asylum Procedures Directive 2005/85 (“the procedures directive”) and:
with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof.
The court said that so long as they observe the rights guaranteed by the CFR, it was for the competent authorities to modify the way, or the “methods”, they assess evidence, i.e. the facts and circumstances, having regard to the specific features of each category of application for asylum. Moreover, as held in M., C-277/11, EU:C:2012:744, the assessment of the facts and circumstances within the meaning of article 4 of the qualification directive is a two-stage process. Stage one deals with the establishment of factual circumstances which may constitute evidence that supports the application whereas stage two concerns the legal appraisal of that evidence and involves deciding whether or not the circumstances of a given case satisfy the substantive conditions for granting of international protection laid down in articles 9 and 10 or article 15 of the qualification directive.
The questions asked in the applicants’ cases were at stage one. Even though it was up to them to substantiate their claims, as held in M, this did not allow the Dutch authorities dealing with the application to shirk their duty to cooperate with the applicants at the stage of assessing the relevant elements of their applications. The CJEU went on to hold at para 57 that the assessment must be made on an individual case by case basis taking into consideration an applicant’s personal circumstances, background, gender and age in determining whether the acts to which the applicant has been or could be exposed would amount to persecution or serious harm.
In light of its observation at para 51, the court said at para 58 that in circumstances where asylum-seekers are unable to substantiate certain aspects of their narrative by documentary or other evidence, so long as the cumulative conditions – such as making a genuine effort to substantiate the claim, being generally credible, coherent and plausible and acting expeditiously – laid down in article 4(5)(a) to (e) of the qualification directive are met, those aspects do not require confirmation.
Therefore, the court provided guidance in relation to the methods of assessment used by national authorities. Stating at para 60 that the assessment of applications for asylum on the basis solely of stereotyped notions about homosexuality precludes the authorities from taking account of the individual situation and personal circumstances of the applicant concerned, the CJEU went on to hold at para 63 that the inability of the applicant to answer such questions is not therefore, in itself, a sufficient reason for concluding that he lacks credibility because this approach violates the terms of both the qualification directive and the procedures directive.
The court moreover explained at para 64 that, on the one hand, the national authorities are entitled to conduct, where appropriate, interviews in order to determine the facts and circumstances as regards the declared sexual orientation of an asylum-seeker. However, on the other hand, the court held that questions related to the details of the asylum-seeker’s sexual practices contravene the fundamental rights guaranteed by the CFR – especially the right to respect for private and family life. As for the possibility of asylum-seekers submitting to “tests” to prove their homosexuality or producing videos of intimate sexual acts (like C), the CJEU held at paras 65–67 that such proof not only infringes human dignity (the respect of which is guaranteed by the CFR) but that such evidence does not have probative value; indeed, accepting such evidence would “incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence.”
The court reasoned that that the information that relates to someone’s personal identity, particularly his or her sexuality, is sensitive and held at para 71 that a finding on a lack of credibility cannot be reached merely on the basis that the asylum seeker’s disclosure of his or her true sexuality was late and not declared at the outset. Keeping the vulnerability of the claimant in mind, the court reiterated the importance of conducting an individual assessment in each case. It held at para 70 that the onus on the applicant/claimant to act in a timely manner, or “as soon as possible” in the wording of article 4(1) of the qualification directive, in substantiating their claim is modulated by article 13(3) of the procedures directive and article 4(3) of the qualification directive which oblige national authorities to take account at interview of the personal or general circumstances surrounding the application.
At first blush the court’s judgment seems sufficiently robust because it prohibits competent national authorities from carrying out detailed questioning as to the sexual practices of gay asylum-seekers. Similarly, the authorities are also precluded from accepting evidence involving the performance of sexual acts and asylum-seekers may not submit to tests or produce films to prove their sexual preference because such evidence does not have probative value.
On the other hand, despite these emollient points in the judgment which liberate gay asylum-seekers from humiliation, taking issue with the terminology in the court’s judgment at para 62 – “questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment” – Professor Peers expressed his disapproval and made it clear that the:
judgment is unhelpful to the extent that it refers to the possibility of ‘useful stereotypes’ when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don’t like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day-to-day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
Professor Peers was also critical of the ruling because it failed to mention that the process of phallometric testing is a form of degrading treatment and is therefore a breach of article 4 of the CFR. Moreover, he argued that the CJEU missed a perfectly good opportunity to endorse the UNHCR Guidelines on International Protection No. 9 (on claims to refugee status based on sexual orientation and/or gender identity) that Advocate-General Sharpston had drawn attention to. Furthermore, the professor was unhappy with the fact that under the court’s ruling it remains possible for gay asylum-seekers to lose credibility by giving “wrong” answers to stereotypical questions. He therefore took the view that:
Although there are many positive aspects of today’s judgment, the CJEU’s unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.
Professor Peers therefore concluded that – by ruling out “obnoxious” ways to evaluate sexual orientation but not entirely foreclosing the possibility of “dubious behaviour by national authorities” – the court was sending “mixed messages”.
The Home Office says that it seeks to establish at interview whether the sexual orientation of the asylum-seeker is as claimed through questions about sexual orientation, not sexual behaviour or stereotypical views of gay life. Theresa May claims that she is “committed to treating all asylum claimants with respect and dignity”. Yet, in his report, which was sanctioned under press/practitioner pressure, John Vine advised her that the Home Office must develop a consistent approach and stop sending mixed signals to gay claimants (who should not feel that they need to supply sexually explicit material to “prove” that they qualify for asylum). John Vine, the Independent Chief Inspector of Borders and Immigration, the statutory watchdog for Home Office efficiencies, was very worried about inconsistent application of guidance and training in the Home Office because he found “stereotyping of applicants in about a fifth of substantive interviews” – he therefore urged “caseworkers to avoid stereotypical expectations in questioning and decision documents.”
One cannot help feeling that, in his critique of Advocate-General Sharpston’s opinion, S Chelvan had expected rather more from the CJEU’s judgment. However, as explained by Professor Peers, the court’s ruling has sent mixed messages and an opportunity to endorse the UNHCR guidelines has been lost. Similarly, it appears that the court has also squandered an opportunity to rule that phallometric testing is form of degrading treatment therefore breaches article 4 of the CFR.
As for the Home Office, well, its bureaucracy will no doubt rejoice at the prospects of engaging in “dubious behaviour” and asking “useful” stereotypical questions in gay asylum cases.