Self-declaration of sexual orientation must be starting point for LGB asylum cases

The Advocate General Sharpston said that people have the right to define their own sexual orientation and therefore the statement made by asylum claimants on their sexual orientation should always form the starting point of credibility assessment.

Advocate General Sharpston emphasises that nothing can be required of applicants that would undermine their human dignity or personal integrity.

The Advocate General’s opinion in particular clarifies that the use of medical tests in order to assess a sexual orientation constitutes a violation of the fundamental rights of the asylum seeker. This applies for instance to the method of phallometry, previously carried out in the Czech Republic and Slovakia, in which the physical reaction to pornographic material was measured, as well as to other medical and psychological examinations.

The Advocate General’s opinion also establishes that intrusive questioning on sexual experiences, or requirements to share photographs and films of sexual practices, as well as assessments based on stereotypes are all contrary to EU law.

Gabi Calleja, Co-Chair of ILGA-Europe’s Executive Board, said:
“We welcome this opinion and hope that the Court will follow the opinion to strengthen the laws and practices in the EU on working with LGB asylum seekers. The Opinion is clear that the human dignity and personal integrity of an asylum seeker during the process of verification of their sexual orientation is paramount and central in this process. What we need now is clear guidelines for all EU Member States which helps asylum authorities on how to act with respect and dignity in such cases.”

Notes:

1. The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
2. The Dutch Council of State (Raad van State) had sought guidance on this point, following the cases of three men from Afghanistan, Gambia and Uganda (A, B and C), whose asylum application was rejected because the Dutch asylum authorities did not believe that they were gay.
3. COC Netherlands, Dutch member organisation of ILGA-Europe, supported the lawyers working on this case, arguing that it is not possible to verify a stated sexual orientation, leading to the conclusion that the declaration of the asylum seeker regarding this aspect should be followed. COC Netherlands is glad that the Advocate General acknowledges that it is impossible to factually prove a sexual orientation
4. Media release by the EU Court of Justice
5. Opinion of Advocate General Sharpston
6. Report “Fleeing Homophobia”, COC Netherlands/VU University Amsterdam 2011, which is cited in the opinion