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25th May 2019

EU court strikes down gay asylum tests

  • Uganda's anti-homosexuality act criminalises same-sex relations (Photo: Luis Valtuena)

Gay people seeking asylum in Europe will no longer have to take tests based on stereotypes or be forced to provide images to prove their sexual orientation.

The Luxembourg-based European Court Justice on Tuesday (2 December) ruled in favour of three Dutch-based asylum applicants.

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The Netherlands had rejected their asylum applications on the grounds that their sexual orientation had not been proven.

The Luxembourg judges ruled that methods used to assess the statements and the evidence submitted in support of applications for asylum must be consistent with EU law and the EU’s charter of fundamental rights. The ruling applies to all EU member states.

The Court documents do not cite where they come from but one of the applicants is from Uganda where homosexuals risk life imprisonment.

His claim was not found credible because he was unable to answer questions about gay organisations in the Netherlands.

The Court blacklisted four practices.

The first is using stereotypes - national authorities are not allowed to assess a claim on the basis of how a gay man or woman is supposed to act.

The second is sexual practices, meaning authorities cannot ask about one’s sexual practices because it violates the right to respect privacy and family life.

The third is submitting people to physical tests or people who submit video or photographic evidence.

So-called "phallometric" tests such as used in the Czech Republic and Slovakia cannot be used. The test involves attaching devices to people’s genitalia and making them watch porn in order to stimulate some sort of sexual arousal.

Elsewhere like the UK, applicants sometimes submit evidence such as photos or video.

The Luxembourg judges found the practice infringes human dignity.

S Chelvan, a barrister at No5 Chambers in London, and an expert on asylum laws in the UK, told this website that same sex intercourse does not prove one is gay.

“By accepting such evidence, one would give the impression to other applicants in the future that they would be required to produce such evidence,” he added.

The fourth is silence. Authorities cannot draw negative credibility findings on the basis that someone did not declare their sexual orientation at the outset of their asylum application.

Chelvan noted that some of his clients have hidden their sexual orientation for decades and do not feel safe discussing such issues.

The Court’s judgment has also drawn some criticism.

The blacklist tells authorities what not to do but does not elaborate on what they should do.

“The gap in the judgment is what is good practice?” said Chelvan.

Similar criticisms have emerged from other Brussels-based NGOs.

Evelyne Paradis, executive director at Ilga-Europe, said her organisation, which promotes the rights of lesbian, gay, bisexual, trans and intersex people, had hoped for clearer rules on how member states should assess such claims.

“We would have liked to see more structured guidance on how member states should assess LGBTI asylum claims,” she noted.

The European Council on Refugees and Exiles (ECRE) also wanted clearer guidelines.

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