CJEU steps in to protect the rights of asylum seekers

Today’s (Tuesday 2 December) ruling in the case of A,B and C stressed that while Member States are entitled to verify the application of those seeking asylum based on their sexual orientation, the assessment procedures used cannot violate the individual’s rights to human dignity and private and family life. These basic rights are guaranteed by the EU Charter of Fundamental Rights and must be respected throughout the asylum process.

The A,B,C case concerned the asylum applications of three individuals who were all rejected on the grounds that their sexual orientation had not been proven. The Court pointed out that an asylum seeker’s declaration of sexual orientation is only the starting point in the application process and should be further assessed. However, certain practices were singled out for criticism by the Court.

It held that assessments should not:

a) be based on stereotypes, such as the applicant’s knowledge of gay rights organisations or stereotypical behaviours;

b) include questions on the sexual practices of the applicant;

c) require the applicant to complete so-called ‘tests’ to confirm their sexuality, such as producing images or videos of sexual acts;

d) draw negative credibility findings from the sole fact that an applicant did not declare their sexual orientation at the outset of their asylum application.

“The fact that the Court has provided a black list of methods not to be used to assess asylum claims, because they infringe human dignity, is very positive news.” said ILGA-Europe’s Executive Director Evelyne Paradis. “However, we would have liked to see more structured guidance on how Member States should assess LGBTI asylum claims”.

ILGA-Europe believes that extra guidance would be very helpful, both for decision makers and for civil society organisations working with asylum seekers in Member States.

• Find here the A,B,C judgment is available in full
• Press statement from the Court of Justice of the European Union can be accessed here
• Assessment models such as the DSSH (Difference, Stigma, Shame and Harm) model developed by U.K. lawyer S. Chelvan is one particular option that Member States may find useful when assessing credibility. The DSSH model has been internationally recognised and approved by the UNHCR.