Brussels, 18/07/2014 (Agence Europe) - When an asylum-seeker claims to have suffered persecution on the grounds of his sexual orientation and to be seeking asylum on those grounds, the credibility of the claim must be assessed by the member state's authorities, but they must not use medical or pseudo-medical examinations, inquisitorial interrogations or demands of proof of sexual activity, ruled European Court of Justice Advocate General Eleanor Sharpston in joint cases C-148/13, C-149/13 and C-150/13 in which the Dutch Raad asked whether EU law restricts member states' action when assessing the credibility of asylum-seekers claims about their sexual orientation.
All three cases involve male asylum-seekers who told the Dutch authorities that they are gay and therefore fear prosecution in their country of origin. The European Court of Justice ruled recently in joint cases C-199/12, C-200/12 and C-201/12 that sexual orientation is sufficient grounds for an individual to argue that they are a member of a “social group” discriminated against in the country of origin and therefore giving its members the right to the status of refugee in the EU. The EU directive on refugees (2004/83/EC) does not, however, list the means that a member state may use to verify whether the sexual orientation claims are true.
In all three cases, the Dutch authorities rejected the request for asylum on the grounds that the claimants were not really gay, even though one of them had agreed to a physical examination and another had provided a film of himself having sex with another man. The Dutch authorities say the third was very vague about his feelings about sex and how he expresses his homosexuality in the Muslim country he hails from. The third applicant made no mention of homosexuality in a previous asylum application.
The Advocate General says that verifying allegations about an individual's sexual orientation is a very sensitive and complicated issue. Homosexuality is not a recognised medical condition and cannot be verified by documentary evidence or any objective means. That said, member states do have to verify the allegations and, in the absence of express guidance of how to do so, the judge says member states should refer to the Charter of Fundamental Rights.
Asylum-seekers should not be subjected to intrusive or humiliating medical or pseudo-medical tests such as phallometry (erection when viewing pornographic images) which can violate an individual's physical and mental integrity or private life and do not necessarily provide proof. Such approaches are based on a stereotypical concept of homosexuality, which flies in the face of the directive, which calls for a case-by-case examination. The request or encouragement to provide material proof of sexual orientation in the form of videos amounts to inquisitorial questioning that violates fundamental rights and has no place in an asylum application, which is not a trial. The consent of the asylum-seeker does not change anything because due to the asylum-seeker's vulnerability, it is difficult, the judge says, to view such consent as free and informed.
So what should member states do? The judge rules that they should focus on whether the applicant is credible. The member states' authorities do not have the aim of rejecting the asylum-seeker's claims and he is not obliged to provide proof of the accuracy of the claims. This means considering whether the account is plausible and coherent and providing the opportunity for the applicant to address any doubts before the final decision is taken. (JK)