London, 16 December 2014
On 2 December 2014, the Court of Justice of the European Union issued a preliminary ruling in the joined cases A, B, C v Staatssecretaris van Veiligheid en Justitie, providing guidance on the application of Article 4 of Directive 2004/83 in claims for asylum based on the sexual orientation of the applicants. The Court stated that Article 4 of the Directive, which sets out the conditions for the assessment of facts relating to an asylum claim, must be interpreted in compliance with the applicants’ rights to respect for human dignity and respect for family and private life (Articles 1 and 7 respectively of the Charter of Fundamental Rights of the European Union). Accordingly, the Court ruled, Article 4 precluded methods of assessment which are based only on stereotyped notions associated with homosexuals or include detailed questioning related to the sexual practices of the individual. The Court’s decision is to be welcomed, although the Equal Rights Trust is disappointed that the Court did not preclude all reliance on stereotypes in the assessment of asylum applications based on sexual orientation.
The case was brought to the consideration of the Court of Justice of the European Union (CJEU) by the Raad van State (Council of State) of the Netherlands. The Council was considering a case brought by three third country nationals whose applications for asylum on grounds of fear of persecution due to their sexual orientation were determined not to be credible and rejected by the Staatssecretaris van Veiligheid en Justitie (Secretary of State for Security and Justice). The assessment process used by the competent authorities in reaching that decision included asking the claimants a set of questions which relied on stereotypes about homosexuals to determine whether or not their claims were credible. The claimants appealed against the decisions to reject their applications. The Raad van State addressed the CJEU to ask whether there are any limits to the methods of assessment of the sexual orientation of the refugees claiming asylum on the basis of their homosexuality under Article 4 of Directive 2004/83.
On 2 December 2014, the CJEU released its judgment emphasising that the methods used by the competent authorities to assess the statements and the evidence submitted in support of applications for asylum must be consistent with EU law and, in particular, the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity and the right to respect for private and family life.
The CJEU stated that Article 4 of the Directive precluded the following from an assessment of an asylum application by a competent authority:
- Statements of the applicant and documentary and other evidence submitted by them founded on questions asked by the authorities based only on stereotyped notions concerning homosexuals;
- The competent national authorities carrying out detailed questioning as to the sexual practices of an applicant for asylum;
- The acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to “tests” with a view to establishing his homosexuality or the production by him of films of such acts;
- A finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution.
While the Equal Rights Trust welcomes the CJEU’s decision, we regret that the Court did not explain why it has stopped short of stating that Article 4 precludes any use of questions based on stereotypes about homosexuals. The Trust is of the view that stereotypes, which are heavily culturally determined, can have no probative value in assessing the credibility of an asylum claim. The Trust urges states to reconsider their procedure for the assessment of asylum applications on the basis of sexual orientation and to remove stereotyping or inappropriate questions from asylum interviews.
To read the Trust’s case summary click here.
To read the CJEU ruling click here.