On Thursday 25 January, the judges of the Court of Justice of the European Union (CJEU) decided (Case C-473/16) that a state could not subject an asylum seeker to a psychological test in order to determine his/her sexual orientation.
In April 2015, a citizen of Niger introduced a request for asylum in Hungary, fearing that he would be persecuted in his own country for being homosexual. His request was rejected after psychological expertise requested by the Hungarian authorities did not confirm homosexuality.
The asylum seeker initiated proceedings before the Hungarian courts, considering that such a psychological test was severely detrimental to his fundamental rights, without however, allowing, his sexual leaning to be determined.
The Szeged administrative and labour court to which the matter was referred carried out a preliminary referral to the CJEU in order to know whether a state was entitled to use psychological expertise in order to prove the truth of what the applicant said about his sexual orientation. If such is not the case, then the Hungarian jurisdiction asked the Court whether other kinds of expertise could be used.
The Court first of all reiterates that expertise can be requested to better determine the real needs of international protection of an asylum seeker, but that the expertise in question must abide by the EU Charter on Fundamental Rights.
Although expertise can prove useful when assessing the truth of statements made by an asylum seeker about his sexual orientation, the Court adds that the authorities cannot base their decision or be bound solely on the basis of such expertise.
In addition, as the consent of the asylum seeker to be subjected to such a test is not necessarily free, given that a refusal can be decisive in the decision, judges consider that using such expertise is interference in a person’s right to respect of his privacy. Furthermore, such interference is disproportionate given the objective to evaluate the real needs of the asylum seeker.
Finally, the CJEU considers that such expertise is not essential, or reliable, and that the relevant authorities must base their appreciation on the consistency and plausibility of the statements made by the applicant to determine sexual orientation. (Original in French by Lucas Tripoteau)