Brussels, 02/12/2014 (Agence Europe) - How far can a national authority go and what methods can it use within the bounds of the EU Charter of Fundamental Rights to verify claims to be homosexual made by an asylum seeker alleging that, for that reason, he/she is persecuted in his/her country?
The Court of Justice of the EU responded to these questions in a ruling delivered on Tuesday 2 December in three joined cases (C-148/13, C-149/13 and C-150/13) in answer to the Dutch Council of State. The answer from the Court is that the competent authorities may seek to ascertain the truth of the asylum seeker's statements as to his/her sexual orientation. They must, however, act with the greatest of care. The Court set out how far the verification process could go in order to make it comply with the rights guaranteed under the Charter of Fundamental Rights, particularly the right to respect of private and family life.
In her opinion delivered in July 2014, Advocate General Eleanor Sharpston described in what ways the procedure faced by three third-country nationals seemed to her to infringe human dignity (see EUROPE 11125). The European judges ultimately followed her opinion. They set out four points of guidance as to the methods of assessment used by national authorities to determine whether or not asylum seekers are homosexual. Before setting these out, the judges made it clear that the assessment of the risk faced by the asylum seeker in his/her country of origin as a result of his/her sexual orientation must be made on an individual basis and must take account of the individual situation and personal circumstances of the applicant, including factors such as background, gender and age.
The four points of guidance in the assessment of the truth of the claims of the asylum seeker are: - the competent authorities must not base their assessment on stereotyped notions associated with homosexuals; - if the national authorities carry out interviews in order to determine the facts and circumstances, they must not ask questions concerning the details of the applicant's sexual practices; - the asylum seeker must not be asked to engage in homosexual acts, to submit to medical of pseudo-medical tests or to provide evidence, such as films of their intimate acts; - not having declared his/her sexuality at the outset does not diminish the credibility of the asylum seeker. (JK)