On 2 December 2014, the Court of Justice of the European Union (CJEU) delivered its judgment in the matter of A, B and C v the Netherlands. The Dutch Raad van State had asked for guidance on the limits that the Qualification Directive and the Charter of Fundamental Rights (CFR) impose on the method of assessing the credibility of a declared sexual orientation.

The case followed the Court’s judgment on another Dutch referral in the matter of X, Y and Z, in which it had affirmed that homosexuals could for a “particular social group” for the purposes of refugee recognition under the Qualification Directive, and that it would be a human rights violation to require “discretion” – i.e. staying in the closet – in the home state to avoid persecution. Given that the chances of recognition have thus become much higher, and that in an asylum procedure the applicant’s statement may be all the evidence that is available, much now depends on the credibility assessment.

Several European States have been employing questionable or even outright degrading methods to establish whether an applicant is “really” gay or lesbian. The most outrageous method consisted of exposing the applicant to pornography and measuring his or her bodily response in a pseudo-scientific manner, denounced by UNHCR as a violation of Article 3 ECHR. But decision-makers have also pried into the most intimate details of sexual practices and emotions, or even requested photographic or filmic evidence of same-sex intimate activities, as Fleeing Homophobia reports. It is thus welcome that the Court now set clear limits to such practices.

A, B and C concerned three male asylum-seekers who claim a fear of persecution on the grounds of their sexual orientation. The cases turn on whether the authorities were right to consider their claims not credible. In one case, the authorities had considered that it was not credible for a claimant from a Muslim country and a Muslim family to not be able to provide strong details on how he found out he was gay; in another case, a history of opposite-sex intimate relations was considered a contradiction to the sexual orientation claim. One of the claimants had offered to submit to tests “or” to perform sexual acts with other males, another had submitted film material depicting him during such sexual acts.

The Court largely followed the Opinion of the Advocate General, Elena Sharpston, starting from the assertion that "although it is for the applicant for asylum to identify his sexual orientation, which is an aspect of his personal identity,” authorities may, as with other types of asylum claims, subject his or her application to the assessment process provided for in Article 4 of the Qualification Directive (QD). The authorities are not obliged to take any statement on an asylum-seeker’s sexual orientation for granted, but can make a credibility assessment just as they would with a religious or political claim.

However, of course, this assessment has to respect the fundamental rights of the claimant, in particular his or her right to dignity, to privacy and family life, and to personal integrity. Here, the Court sets four boundaries:

First of all, the authorities cannot rely on stereotypical assumptions alone, as an individual assessment is necessary; thus, the fact that an asylum-seeker cannot answer questions on certain LGBT NGOs or gay bars or that his or her demeanor or statements do not accord with what the authorities believe a “real homosexual” would say, do, or look like, cannot be used to refute the claim. The Court reminds the Member States that, “[w]hile questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment,” solely relying on such stereotypes does not satisfy the requirement of assessing “the individual situation and personal circumstances of the applicant for asylum concerned.” Unfortunately, this leaves some leeway for stereotypical expectations of what a “real” homosexual would say or do.

Secondly, direct questions on the details of sexual practices violate the right to private and family life under Article 7 CFR. AG Sharpston had not excluded the possibility of the applicant freely supplying such information of his or her own accord; the Court remains silent on this question.

Thirdly, “tests” or photographic or filmic “evidence” are not only unreliable, but also incompatible with human dignity. As admitting such evidence, where it is offered, would lead to an indirect requirement for others to provide it too, it can never be considered. The Court here goes into much less detail than AG Sharpston, who had emphasized that there could be no medical tests as homosexuality was no longer considered a disease under the 1999 ICD-10, and who had explained that any graphic evidence could easily be staged.

Fourthly, although Article 4 QD requires that the applicant supply all relevant information “as soon as possible,” "having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.” If an asylum-seeker thus introduces this ground late in the procedure, this alone cannot be a reason to disbelieve him or her.

Unfortunately, the Court fails to also include AG Sharpston’s strong statements on the Member States’ obligation to give the applicant sufficient opportunity to respond to doubts of his or her credibility. It is also unfortunate that the Court made no stronger statement on the utter unsuitability of – culturally specific – stereotypes for assessing an individual risk of persecution. Still, this is a very important judgment that will hopefully protect homosexual asylum-seekers from the most degrading parts of the asylum procedure.

Nora Makard

Go to the judgment

Go to the press statement