Somewhere Over the Rainbow: On the Use of Psychological Tests to Determine Asylum Seekers’ Sexual Orientation and the Impact on the Right to Private Life (Case C-473/16, 25 January 2018)

Abstract

This paper covers the problems and dynamics that LGBTQI (Lesbian, Gay, Bisexual, Queer and Intersex) asylum seekers face when they leave their country of origin and enter countries within the European Union. Only a small percentage of people that claim asylum on the basis of reasonable fear of persecution because of sexual orientation are granted asylum within these EU Member States, or some other form of international protection.

The paper scans the relevant legislation that is supposed to protect asylum seekers in general and covers the three most important cases of the Court of Justice of the European Union (CJEU) on the treatment and assessment of asylum applications on the basis of fear of persecution because of sexual orientation. The case at hand needs to be seen within this general framework as we know it so far.

F v Hungary concerns the case of a Nigerian national claiming asylum on the basis of fear of persecution in his country of origin because of his homosexuality. To determine his general credibility, the Hungarian determining authorities subjected F to three different psychological tests. However, the psychological experts could not confirm or deny F’s sexual orientation based on these tests. Consequently, the determining authorities decided that his general credibility could not be established and his claim for asylum was denied.

The Hungarian Appeal Court requested a preliminary ruling before the CJEU. The Court ruled that in these cases it is not always necessary to determine the sexual orientation of an applicant. The CJEU stressed that, when assessing an asylum application, it does not matter whether or not an applicant actually identifies with the particular social group that attracts persecution. Scientific reports from medical, psychological or social experts can certainly be of value throughout the asylum application assessment, but determining authorities cannot be bound by such expert reports. Every case should undergo an in concreto assessment, taking into account the individual circumstances and with respect for human dignity, the right to respect for private and family life, and the right to an effective remedy as guaranteed by Articles 1, 7 and 47 of the EU Charter. Every interference with these rights should be in line with the proportionality principle.

Finally, some suggestions are made to shape a future strategy and the development of asylum application assessment.