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5th Mar 2024

EU court bars tests for gay asylum seekers

  • Asylum seekers are often runnig for their lives, including LGBTI people (Photo: Agostino Loffredi/Oxfam)

Asylum seekers should not be subjected to psychological tests to determine whether they are homosexual, the EU's top court has ruled.

The European Court of Justice on Thursday (25 January) said that "recourse to a psychologist's expert report in order to determine the sexual orientation of the asylum seeker constitutes an interference with that person's right to respect for his private life".

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The ruling means member states cannot legally impose the use of psychological reports and tests on asylum seekers. The court said such reports were "not essential" to determine the credibility of statements on sexual orientation.

The court said psychological reports were disproportionate to the objective.

"Such interference is particularly serious because it is intended to give an insight into the most intimate aspects of the asylum seeker's life," the court said in a statement.

The case concerned a Nigerian man, referred to only as 'F', who applied for asylum in Hungary in April 2015. He feared persecution in Nigeria for being gay.

Hungarian authorities used a Draw-A-Person-In-The-Rain, Rorschach and Szondi tests to determine F's credibility.

The ECJ said Hungarian officials had not found F's statements to be contradictory, yet had still concluded that F lacked credibility.

F's claim was therefore rejected after a psychologist's report failed to confirm his homosexuality.

Following the ECJ's ruling, a Hungarian court must now reassess his asylum claim.

"An important step against one of the many problems and humiliations LGBTI refugees still face in many EU member states," tweeted Kartin Hugendubel, advocacy director for ILGA, a worldwide organisation campaigning for LGBTI rights.

The Nigerian man in question was represented by the Hungarian Helsinki Committee, an NGO focusing on human rights .

"This marks the end of the outdated and stigmatising psychological testing of asylum seekers," they said in a statement, pointing out that Hungary authorities' preferred method has been using the controversial psychological tests.

There are no official statistics on the number of asylum claims based on sexual orientation or gender identity, the Vienna-based Fundamental Rights Agency (FRA) said in a report.

According to the report, NGOs in Europe say that asylum officers tend to have stereotypical views on sexual orientation and gender identity.

Only a few EU countries have specific national guidelines for interviewing LGBTI people during the asylum process.

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