Ruling on appeals by three gay people from Africa seeking asylum in the Netherlands, the European Court of Justice held that it was a violation of European human rights law for officials attempting to determine whether the applicants are gay to base their questioning solely on stereotypes about homosexuals, to carry out detailed questioning as to the sexual practices of the applicants, to require applicants to submit to “tests” to establish their homosexuality or to provide evidence such as films of the applicants engaging in homosexual conduct. Furthermore, said the Court, it is inappropriate to decide that applicants are not credible merely because they did not declare their sexual orientation in their first encounter with authorities. The ruling is expected to produce significant changes in how national immigration officials in Europe deal with gay asylum applicants.
The court preserved the anonymity of the applicants in reporting its decision, so the case is titled A, B & C v. Staatssecretaris van Veiligheid en Justitie, listing as defendant the Dutch agency that processes asylum claims. The opinion was announced on December 2, 2014.
Asylum claims by refugees are governed by a complex body of international and national law. The Convention relating to the Status of Refugees, signed in Geneva in 1951 as one of several “Geneva Conventions” that relate to such issues as the treatment of wartime prisoners and the populations of countries subject to military occupation, uses the term “refugee” to refer to somebody who does not want to stay in the country of which they are a citizen “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and are seeking refuge in another country where they do not fear persecution on those grounds. There is now a substantial consensus among parties signatory to the Convention that “particular social group” can include sexual minorities, such as lesbian, gay, bisexual and transgender people.
The European Union has adopted its own Directive governing compliance with the Geneva Convention on Refugees, which adopts the same definition of refugee, and specifies how individuals seeking asylum should be evaluated by member nations. Member nations themselves have adopted laws and regulations on this issue. In general, the burden is on somebody who is applying for asylum to show that they fit into one of the categories, which can be difficult for gay asylum seekers when government officials are skeptical about their claims of being gay. Their cases can become hopeless when, having spent their lives hiding their sexuality in their home countries, they are fearful about revealing this information to the first government officials they meet in their intended place of refuge. As a result, in some cases they make up stories about other forms of persecution and only later, upon becoming comfortable with the idea of putting their sexuality forward as a ground for asylum, do they raise this issue, creating credibility problems due to the conflicts with their prior stories.
Even setting that aside, applicants may have a difficult time establishing that they are gay as new arrivals in a country if they don’t speak the language, don’t know anybody who can vouch for them, lack documentation from their home country that could establish their sexuality, and confront officials who are inclined to doubt anybody who does not strike them as stereotypically gay. Matters are complicated by the occasional case where somebody pretends to be gay in order to win asylum and is found out, which encourages asylum officials to be even more skeptical about undocumented claims.
In the cases before the European court, for example, applicant A was deemed not credible by authorities on his first application, but filed a second application, “stating that he was prepared to take part in a ‘test’ to prove his homosexuality or to perform a homosexual act to demonstrate the truth of his declared sexual orientation.” The authorities rejected his second application, stating that the credibility of his declared sexual orientation had not been established and that it was “not appropriate to rely only on the declared sexual orientation of the applicant for asylum without making any assessment of the credibility of that orientation.”
Applicant B was rejected on the ground that his statements about his homosexuality “were vague, perfunctory and implausible.” The government asserted that because he came from a county where homosexuality was “not acceptable,” he should have been able to “give more details about his emotions and his internal awareness of his sexual orientation.” Applicant C’s first application, which was rejected, stated grounds other than homosexuality. He second application raised homosexuality and ran into the credibility problem of not having raised it the first time. In support of his application, C gave authorities a video showing him engaged in “intimate acts with a person of the same sex” to try to prove his homosexuality, but he was rejected anyway when he was unable to answer various questions about how he had become aware of his homosexuality and about Dutch organizations for gay rights.
The administrative appellate process in the Netherlands provided no relief for these applicants, but ultimately a court identified as the Raad van State, concerned about the process for determining the bona fides of allegedly gay asylum applicants, referred the question to the European Court of Justice, expressing concern about how such an investigation could be carried out consistent with the applicable international and national laws.
The Court confirmed that European Union states are allowed to require some sort of confirmation of claims that asylum applicants are gay, so there had to be some sort of assessment process as to credibility. However, the Court found it inappropriate for authorities to decide these cases on some categorical basis, requiring instead that decisions be made on a case-by-case basis. In particular, said the Court, “While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not, nevertheless, satisfy the requirements” of the legal provisions governing the decision-making process, “in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned.” Thus, the inability of an applicant to answer questions that an assessor would believe would be easily answerable by a genuinely gay person should not necessarily lead to an adverse credibility determination, since it relied upon stereotypical assumptions about the behavior and knowledge of gay people.
Furthermore, the Court declared that fundamental human rights protected under European law should preclude questioning about the sexual practices of applicants, as violating the Charter protection for private and family life. Assessors should not accept evidence such as videos of people having sex, because “the effect of authorizing or accepting such types of evidence would be to incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence.”
Most importantly, the Court rejected the idea that somebody’s credibility was automatically compromised when they didn’t raise their sexual orientation at the first opportunity in the asylum process. Said the Court, “having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.” Thus, the requirement of the Directive that applicants raise relevant grounds for asylum “as soon as possible” should be “tempered by the requirement imposed on the competent authorities. . . to conduct the interview taking account of the personal or general circumstances surrounding the application, in particular, the vulnerability of the applicant, and to carry out an individual assessment of the applications, taking account of the individual position and personal circumstances of each applicant.”
The Court’s ruling is particularly timely as various nations in Europe are facing a sharp increase in asylum applications from gay refugees from Africa, the Middle East and Russia, many of whom might have great difficulty providing the kind of documentation that is routinely available for political or religious dissenters who are fleeing with family and compatriots.
The Court’s opinion lists attorneys N.C. Blomjous as counsel for A and C. Chen as counsel for B, but does not identify counsel for C. Six member nations submitted arguments to the Court, as did the European Commisson and the United Nations High Commissioner for Refugees. The decision was rendered unanimously by a Grand Chamber of the Court consisting of thirteen judges.