The European Court of Justice ruled on Tuesday on the verification of sexual orientation. The judgment provides answers to how far national migration authorities can go, when they try to establish the credibility of people who claim asylum in the EU because they are LGBTI (Lesbian, Gay, Bisexual, Transgender, Intersex) and fear persecution in their home countries.
It follows the successful November 2012 appeal by three homosexual African refugees, against the rejection of their claim by the Netherlands. The Dutch ruling was based on an argument that the applicants did not credibly prove their homosexuality.
On Tuesday, the ECJ ruled that self-declaration of homosexuality was not enough to verify claims, adding that it was “merely the starting point in the process of assessment…and may require confirmation.”
However, it said a late declaration of homosexuality was insufficient for a claim to be ruled not credible.
The court also said detailed sexual questioning of applicants was not allowed, nor were medical ‘tests’ or video material of intimate acts.
It was appropriate, the ECJ said, to restrict verifications based on “detailed questioning as to the sexual practices of an applicant for asylum and the option, for those authorities, to allow the applicant to submit to ‘tests’ with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts…”
It said, however, “stereotyped notions” regarding homosexuals “may be a useful element at the disposal of competent authorities for the purposes of assessment,” but that authorities could not rely solely on these notions.
The ECJ said national authorities could not infringe the fundamental rights to privacy and dignity of LGBTI asylum seekers.
Source: Deutsche Welle, Dec. 2, 2014.
Read the background of the decision.
Read the text of the Judgment Of The Court.