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Court of Justice of the European Union: Evidence Required of Applicants for Asylum Persecuted for Homosexuality in Country of Origin

(Dec. 17, 2014) On December 2, 2014, the Court of Justice of the European Union (CJEU) issued a judgment on a preliminary question posed by a court in the Netherlands, as to whether individuals who are persecuted for being homosexuals are eligible to apply for asylum in the EU. (Judgment of the Court (Grand Chamber): Joined Cases C-148/13 to C-150/13, v. Staatssecretaris van Veiligheid en Justitie (Dec. 2, 2014), EUROPA.)

Background

The referring court in the Netherlands requested that the CJEU interpret article 4 of Directive 2004/83/EC of 29 April 2004, on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (2004 O.J. (L 304) 12) and articles 3 and 7 of the Charter of Fundamental Rights of the European Union (2010 O.J. (C83) 2, EURLEX).

The case involved three individuals, A, B, and C, third-country nationals who filed applications for a temporary residence permit (asylum) in the Netherlands on the grounds that they feared persecution in their countries of origin in Africa because of their homosexuality. (Judgment of the Court (Grand Chamber), supra, ¶ 22.) Their initial applications were rejected due to the lack of credibility of their statements regarding their homosexuality. The referring court posed the following question to the CJEU:

What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect? (Id. ¶ 43.)

CJEU Reasoning

The CJEU noted that all applications for asylum based on persecution, including those based on homosexuality, are subject to an assessment. In reviewing the facts and circumstances, as envisioned by article 4 of the Directive, the CJEU observed that statements submitted by the applicants for asylum pertaining to their sexual orientation are the starting point. (Id. ¶ 49.)

The CJEU also noted that, in accordance with article 4(3)(c) of Directive 2004/83, an assessment must be made on a case-by-case basis and must take into account the individual’s particular situation and personal circumstances, including factors such as background, gender, and age, in order to make the determination as to whether the acts to which the applicant has been subjected or to which he or she could be exposed would amount to persecution or serious harm. (Id. ¶ 57.) The CJEU stated that the national authorities have the right to conduct interviews of the applicants in order to determine the facts and circumstances related to the homosexuality of the applicants for asylum. However, as the Court noted, requesting information on the personal details of the sexual practices of applicants may violate the fundamental rights established in the Charter and, in particular, the right to respect for private and family life contained in article 7. (Id. ¶ 64.)

The CJEU considered whether various forms of evidence suggested by the applicants during the main proceedings could be submitted as evidence of homosexuality. The forms of evidence involved were performance of homosexual acts, submission of the applicants to certain “tests” to show their homosexuality, or presentation of videos showing the applicants involved in homosexual acts. The Court pointed out that such evidence on the one hand does not necessarily have probative value and on the other hand, because of the private nature of the issue, could infringe on human dignity, which is guaranteed by article 1 of the Charter. (Id. ¶ 65.)

The CJEU observed that due to the sensitive nature of questions related to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that statements concerning homosexuality are not credible merely because the applicants hesitated to reveal such details of their personal life in the first place. (Id. ¶ 69.)

The Ruling

The CJEU held, inter alia:

• Article 4 of Directive 2004/83, read in the light of article 7 of the Charter, must be interpreted as precluding . . . the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.

• Article 4 of Directive 2004/83, read in the light of article 1 of the Charter, must be interpreted as precluding the acceptance by those authorities of evidence such as the performance by the applicant for asylum of homosexual acts, his submission to “tests” in order to establish his homosexuality, or the production by him of films of such acts.

• Article 4(3) of Directive 2004/83 and article 13(3)(a) of Directive 2005/85 must be interpreted as precluding . . . the competent national authorities from 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 grounds for persecution. (Id. ¶ 72.)