Tell Me What Yous Encounter As Well As I’Ll Enjoin Yous If You’Re Gay: Analysing The Advocate General’S Visit Inward Representative C-473/16, F Five Bevándorlási És Állampolgársági Hivatal
May 22, 2018
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By Nuno Ferreira (Professor of Law, University of Sussex) and Denise Venturi (PhD student, Scuola Sant Anna, Pisa)*
Hungary inward the spotlight again
Republic of Hungary has been inward the spotlight for all the incorrect reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to maintain refugees from entering Hungarian territory, the populist right-wing authorities of Viktor Orban has been sparking appall inward many sectors of Hungarian society, in addition to the European institutions. The most recent ground for alert over again relates to migration in addition to refugees, an expanse of junk science’, for relying on baseless stereotypes. As Weber has rightly stated inward the context of the recent debates unopen to using Artificial Intelligence (AI) to determine one’s sexuality on the footing of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals in addition to neglect to recognise that the ‘homosexual’ in addition to the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ volition last used inward the West inward the context of SOGI asylum.
The tests inward inquiry inward the F case assume that individuals amongst a especial sexual orientation possess got for sure personality traits, which non exclusively is manifestly false, but also runs against the prohibition on stereotypical decision-making established by A, B in addition to C. At the oral hearing inward this case, the Hungarian authorities tried to justify the work of these tests amongst the A, B in addition to C judgment. The statement ran equally follows: equally the judgment precluded questions nearly claimants’ sexual orientation, the authorities had to resort to tests. The job amongst this assertion is that it is based on a fake premise: the judgment in A, B in addition to C did non foreclose authorities from cry for whatsoever questions nearly claimants’ sexual orientation, but simply precluded certain questions in addition to practices that clearly breach the dignity of the individual.
Although both the Commission in addition to the Hungarian authorities suggested inward the oral hearing that these tests should last allowed because they exclusively constitute an chemical ingredient of the overall assessment of the asylum claim in addition to may Pb to the confirmation of the credibility of the applicant, the exact contrary happened inward this case. Indeed, the examine was used yesteryear the Hungarian authorities to discredit the applicant’s concern human relationship in addition to deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to foreclose the claimant from existence recognised equally refugee. Unfortunately, AG Wahl’s Opinion roughshod far curt from precluding such tests.
The Advocate General’s Opinion
In his here).
Following the hearing on thirteen July 2017, Advocate General Wahl delivered his Opinion on v Oct 2017. The focus of our analysis volition last on this Opinion, but showtime it is of import to cry back the illustration constabulary the CJEU has already produced on sexual orientation in addition to gender identity (SOGI) claims of asylum. Indeed, this is the 3rd illustration the CJEU has dealt amongst on SOGI-related asylum claims, in addition to nosotros await this 3rd illustration to improve reverberate international standards than the previous two, peculiarly inward the lite of the EU Charter and UNHCR Guideline No. 9.
Third fourth dimension lucky?
The CJEU dealt amongst Sexual Orientation in addition to Gender Identity (SOGI) asylum claims for the showtime fourth dimension inward the joined cases C-199/12 to C-201/12, X, Y in addition to Z v. Minister voor Immigratie en Asiel. Despite some shortcomings, this determination expressly recognised that persecution on the footing of sexual orientation tin post away give rising to refugee status nether the ‘particular social group’ solid soil of the 1951 Refugee Convention (which is reproduced inward the qualification Directive). It was silent ane twelvemonth after X, Y in addition to Z that the CJEU was called to supply guidance on evidentiary standards inward SOGI asylum claims inward some other illustration concerning 3 gay men seeking asylum on the footing of their sexual orientation, who were non deemed credible (Joined Cases C-148/13 to C-150/13, A, B in addition to C v Staatssecretaris van Veiligheid en Justitie, 2 Dec 2014, discussed junk science’, for relying on baseless stereotypes. As Weber has rightly stated inward the context of the recent debates unopen to using Artificial Intelligence (AI) to determine one’s sexuality on the footing of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals in addition to neglect to recognise that the ‘homosexual’ in addition to the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ volition last used inward the West inward the context of SOGI asylum.
The tests inward inquiry inward the F case assume that individuals amongst a especial sexual orientation possess got for sure personality traits, which non exclusively is manifestly false, but also runs against the prohibition on stereotypical decision-making established by A, B in addition to C. At the oral hearing inward this case, the Hungarian authorities tried to justify the work of these tests amongst the A, B in addition to C judgment. The statement ran equally follows: equally the judgment precluded questions nearly claimants’ sexual orientation, the authorities had to resort to tests. The job amongst this assertion is that it is based on a fake premise: the judgment in A, B in addition to C did non foreclose authorities from cry for whatsoever questions nearly claimants’ sexual orientation, but simply precluded certain questions in addition to practices that clearly breach the dignity of the individual.
Although both the Commission in addition to the Hungarian authorities suggested inward the oral hearing that these tests should last allowed because they exclusively constitute an chemical ingredient of the overall assessment of the asylum claim in addition to may Pb to the confirmation of the credibility of the applicant, the exact contrary happened inward this case. Indeed, the examine was used yesteryear the Hungarian authorities to discredit the applicant’s concern human relationship in addition to deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to foreclose the claimant from existence recognised equally refugee. Unfortunately, AG Wahl’s Opinion roughshod far curt from precluding such tests.
The Advocate General’s Opinion
In his here). The CJEU was asked whether the Charter, inward especial Articles 3 (right to the integrity of the person) in addition to seven (respect for private in addition to menage unit of measurement life), equally good equally Article 4 recast Qualification Directive, which sets out some full general rules for assessing asylum claims, posed for sure limits on national authorities when verifying an asylum seeker’s sexual orientation.
This judgment is of import equally it establishes some substance principles on credibility in addition to evidence assessment; however, the Court could possess got offered to a greater extent than positive guidance inward that regard. At the outset, the CJEU found that although the applicants’ mere declarations are non sufficient per se to constitute their sexual orientation, authorities are jump yesteryear for sure limits when assessing a SOGI asylum application. Notably, such assessment must last conducted on an private footing in addition to must non last based just on stereotypes, which is a mistake too frequently committed yesteryear decision-makers inward SOGI cases. Nonetheless, the CJEU did non completely overrule the work of stereotyped notions, but considered them a useful chemical ingredient inward the overall assessment. As for evidence, the Court precluded the recourse to detailed questions on sexual practices in addition to to ‘tests’ to constitute applicants’ sexual orientation inward lite of Articles 1 (human dignity) in addition to seven of the EU Charter. It also banned the production inward evidence of films showing the applicant’s solar daytime of the month inward same-sex activities. Finally, the CJEU also affirmed that belatedly disclosure of an applicant’s sexual orientation equally the primary ground for the asylum claim, does not per se impinge on the applicant’s credibility.
In a nutshell, the Court junk science’, for relying on baseless stereotypes. As Weber has rightly stated inward the context of the recent debates unopen to using Artificial Intelligence (AI) to determine one’s sexuality on the footing of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals in addition to neglect to recognise that the ‘homosexual’ in addition to the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ volition last used inward the West inward the context of SOGI asylum.
The tests inward inquiry inward the F case assume that individuals amongst a especial sexual orientation possess got for sure personality traits, which non exclusively is manifestly false, but also runs against the prohibition on stereotypical decision-making established by A, B in addition to C. At the oral hearing inward this case, the Hungarian authorities tried to justify the work of these tests amongst the A, B in addition to C judgment. The statement ran equally follows: equally the judgment precluded questions nearly claimants’ sexual orientation, the authorities had to resort to tests. The job amongst this assertion is that it is based on a fake premise: the judgment in A, B in addition to C did non foreclose authorities from cry for whatsoever questions nearly claimants’ sexual orientation, but simply precluded certain questions in addition to practices that clearly breach the dignity of the individual.
Although both the Commission in addition to the Hungarian authorities suggested inward the oral hearing that these tests should last allowed because they exclusively constitute an chemical ingredient of the overall assessment of the asylum claim in addition to may Pb to the confirmation of the credibility of the applicant, the exact contrary happened inward this case. Indeed, the examine was used yesteryear the Hungarian authorities to discredit the applicant’s concern human relationship in addition to deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to foreclose the claimant from existence recognised equally refugee. Unfortunately, AG Wahl’s Opinion roughshod far curt from precluding such tests.
The Advocate General’s Opinion
In his did non provide any clear guidelines of what, they should do to assess SOGI asylum claims. Notably, the Court made it clear that at that spot is no room for evidence that, yesteryear its nature, infringes human dignity in addition to which does non possess got whatsoever probative value. This prohibition, the Court argued, cannot last circumvented fifty-fifty if it is the applicant’s selection to submit such evidence, equally this would incite other applicants to do the same, creating a de facto requirement. While the Court’s sentence in X, Y in addition to Z fully establishes the possibility of recognising SOGI applicants equally refugees, the Court’s findings in A, B in addition to C constitute the backdrop against which the F case volition ultimately last decided.
‘Tell me what do yous see… is it gay enough?’
The F case has pose dorsum on the CJEU’s agenda the evidentiary standards to last applied inward SOGI asylum cases. Several contentious practices possess got been criticised throughout the years inward this context, from the work of stereotyped questioning to authorities resorting to practices of no medical or psychological value such as phallometry, whereby reactions of gay manly mortal asylum claimants to watching pornography were supposed to dot their sexual preferences. Despite such practices having been highly criticised both yesteryear the junk science’, for relying on baseless stereotypes. As Weber has rightly stated inward the context of the recent debates unopen to using Artificial Intelligence (AI) to determine one’s sexuality on the footing of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals in addition to neglect to recognise that the ‘homosexual’ in addition to the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ volition last used inward the West inward the context of SOGI asylum.
The tests inward inquiry inward the F case assume that individuals amongst a especial sexual orientation possess got for sure personality traits, which non exclusively is manifestly false, but also runs against the prohibition on stereotypical decision-making established by A, B in addition to C. At the oral hearing inward this case, the Hungarian authorities tried to justify the work of these tests amongst the A, B in addition to C judgment. The statement ran equally follows: equally the judgment precluded questions nearly claimants’ sexual orientation, the authorities had to resort to tests. The job amongst this assertion is that it is based on a fake premise: the judgment in A, B in addition to C did non foreclose authorities from cry for whatsoever questions nearly claimants’ sexual orientation, but simply precluded certain questions in addition to practices that clearly breach the dignity of the individual.
Although both the Commission in addition to the Hungarian authorities suggested inward the oral hearing that these tests should last allowed because they exclusively constitute an chemical ingredient of the overall assessment of the asylum claim in addition to may Pb to the confirmation of the credibility of the applicant, the exact contrary happened inward this case. Indeed, the examine was used yesteryear the Hungarian authorities to discredit the applicant’s concern human relationship in addition to deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to foreclose the claimant from existence recognised equally refugee. Unfortunately, AG Wahl’s Opinion roughshod far curt from precluding such tests.
The Advocate General’s Opinion
In his Rorschach test and Szondi test. Such projective, drawing tests travail to elicit information that ‘patients’ may fighting or prefer non to beak otherwise, helping psychologists to shape an persuasion nearly individuals’ personality, emotional well-being in addition to mental health. These tools are generally contentious, fifty-fifty if they larn on existence used yesteryear psychologists routinely inward most countries. Their work to determine one’s sexuality is fundamentally abhorrent, thus simply non considered yesteryear the relevant literature or reputable professionals.
AG Wahl recognises how scientifically discredited such tests are inward relation to sexual orientation matters, citing an American Psychological Association 2009 report. The inquiry of whether ane is gay or non is, itself, poorly framed, equally one’s sexual orientation tin post away prevarication somewhere along a complex continuum and alter over time. Attempts to determine one’s sexuality objectively possess got invariably been held to last ‘junk science’, for relying on baseless stereotypes. As Weber has rightly stated inward the context of the recent debates unopen to using Artificial Intelligence (AI) to determine one’s sexuality on the footing of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals in addition to neglect to recognise that the ‘homosexual’ in addition to the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ volition last used inward the West inward the context of SOGI asylum.
The tests inward inquiry inward the F case assume that individuals amongst a especial sexual orientation possess got for sure personality traits, which non exclusively is manifestly false, but also runs against the prohibition on stereotypical decision-making established by A, B in addition to C. At the oral hearing inward this case, the Hungarian authorities tried to justify the work of these tests amongst the A, B in addition to C judgment. The statement ran equally follows: equally the judgment precluded questions nearly claimants’ sexual orientation, the authorities had to resort to tests. The job amongst this assertion is that it is based on a fake premise: the judgment in A, B in addition to C did non foreclose authorities from cry for whatsoever questions nearly claimants’ sexual orientation, but simply precluded certain questions in addition to practices that clearly breach the dignity of the individual.
Although both the Commission in addition to the Hungarian authorities suggested inward the oral hearing that these tests should last allowed because they exclusively constitute an chemical ingredient of the overall assessment of the asylum claim in addition to may Pb to the confirmation of the credibility of the applicant, the exact contrary happened inward this case. Indeed, the examine was used yesteryear the Hungarian authorities to discredit the applicant’s concern human relationship in addition to deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to foreclose the claimant from existence recognised equally refugee. Unfortunately, AG Wahl’s Opinion roughshod far curt from precluding such tests.
The Advocate General’s Opinion
In his Opinion, AG Wahl rightly frames this illustration equally ane that is really clearly nearly using psychologists’ proficient opinions inward assessing the credibility of claimants. The provision at the centre of this debate – equally framed yesteryear the referring questions – is Article 4(5) of the recast Qualification Directive, which discharges applicants from the demand to evidence their asylum claims through documentary or other evidence when a arrive at of weather is fulfilled, including the applicants having made a genuine travail to substantiate their claims, having offered a satisfactory explanation for the lack of farther evidence, in addition to having provided an overall credible account. Based on this provision, the applicant used the oral hearing to highlight that at that spot was no demand for whatsoever farther tests inward his case, because at that spot were no inconsistencies. The Hungarian authorities counter-argued that at that spot were contradictions inward the applicant’s statement (without specifying just which contradictions), then it was necessary to probe its veracity.
Another European Union constabulary musical instrument turns out to play a to a greater extent than of import role inward this Opinion, namely Directive 2013/32/EU (the recast Asylum Procedures Directive). Indeed, the Qualification Directive establishes the full general rules to follow inward price of evidentiary standards inward asylum cases, inward especial Article 4, but it is Article 10(3) of the Asylum Procedures Directive that determines that Member States’ asylum authorities should achieve individual, objective in addition to impartial decisions, in addition to that they possess got the possibility to seek proficient advice to assistance inward their decision-making. On this basis, AG Wahl proceeds yesteryear considering the benefits of involving psychologists inward the adjudication procedure (para. 33-34), but is also really clear nearly the impossibility of a psychologist determining an applicant’s sexual orientation based on personality tests (par. 36). Nonetheless, AG Wahl goes on to analyse nether which circumstances such tests tin post away nevertheless last admitted, thus effectively accepting them.
AG Wahl tries to soften the blow of admitting the tests inward inquiry yesteryear stating that consent is required, in addition to that the tests demand to last carried out inward a way that is compatible amongst the rights to dignity in addition to to honour for private in addition to menage unit of measurement life (Articles 1 in addition to seven of the EU Charter and Article 8 of the European Convention on Human Rights). Although AG Wahl expressly acknowledges the difficulties inward withholding consent inward the context of an asylum claim, he does non appear to expose it problematic that – inward his ain words in addition to inward a probable violation of the applicant’s rights nether European Union constabulary – the ‘applicant’s refusal [to consent to the tests] may possess got for sure consequences that the applicant himself has to bear’ (par. 45). In other words, refusing a examine amongst no probative value that could violate applicants’ rights may Pb to the refusal of their asylum claim – a highly disproportional in addition to unfair outcome, nosotros would argue.
The Opinion goes on to farther qualify the admissibility of such tests yesteryear questioning the probative value of examinations based on dubious scientific discipline or used inward the incorrect context (par. 48). And yet, AG Wahl also offers domestic courts a broad margin of appreciation inward this regard, yesteryear stating that it is non for the CJEU to assess such tests. Having seen how the tests inward inquiry had been used inward relation to a gay manly mortal applicant to deny him asylum, it is manifestly unwise to offering domestic authorities such leeway inward asylum cases relating to sexual orientation. The fact that AG Wahl refers to the correct to an effective remedy (Article 47 of the European Union Charter) in addition to to the liberty of domestic courts to depart from the ‘findings of the expert’ (par. 50) may last an implicit proffer that the domestic courtroom inward this illustration should differ from the experts’ opinions in addition to experience gratis to grant asylum to the applicant. Yet, that is clearly insufficient to appease the legitimate concerns of asylum seekers inward similar situations, since they volition last at the mercy of (administrative in addition to judicial) authorities who may happily offering probative value to ‘junk science’ detrimental to their asylum claims.
AG Wahl’s Opinion accepting inward regulation the work of projective personality tests inward cases involving asylum claims on the footing of sexual orientation is deeply disconcerting. On the ane hand, he clearly doubts the usefulness or appropriateness of such tests (even referring to Principle xviii of the Yogyakarta Principles protecting individuals from medical abuses based on sexual orientation or gender identity), in addition to he alerts domestic courts to the possibility of disregarding them fifty-fifty when they are carried out. On the other hand, he does recommend that such tests should last allowed (even if amongst a arrive at of supposedly helpful caveats), thus abandoning claimants to the mercy of potentially unsympathetic domestic authorities. Equally disconcerting is the fact that nowhere inward the AG’s Opinion is at that spot a reference to the regulation of the do goodness of the doubt: although it may non last strictly necessary to refer to this regulation inward this context, its absence is striking for leaving out of the equation an essential chemical ingredient of the evidentiary standards inward refugee constabulary (para. 203-204 of the UNHCR Handbook in addition to Guidelines on Procedures in addition to Criteria for Determining Refugee Status). It is submitted that the focus of the Opinion should possess got been on the line of piece of work of questioning that should possess got been used, such equally per UNHCR Guideline No. 9.
he Opinion inward this illustration could possess got much to a greater extent than simply asserted, equally AG Sharpston did inward her Opinion in A, B in addition to C (largely followed yesteryear the CJEU), that ‘medical [or psychological, nosotros would add] tests cannot last used for the work of establishing an applicant’s credibility, equally they infringe Articles 3 in addition to seven of the Charter’ (par. 61), in addition to that applicants’ consent is both essentially irrelevant in addition to questionable (par. 67). Instead, AG Wahl offers poor guidance to the CJEU.
‘Projecting’ this Opinion onto the CJEU’s Judgment
In the F case, the CJEU volition last called upon to translate European Union constabulary amongst regard to the evidentiary assessment of SOGI asylum cases inward a to a greater extent than targeted way than it did in A, B in addition to C. Predicting a Court’s verdict is something ane should essay to avoid; however, the relevance of the issues at stake inward the F case allows us to contemplate some potential scenarios. First, the CJEU has the alternative to build on in addition to expand its approach in A, B in addition to C and hence construe its whole reasoning on the footing of honour for the European Union Charter, peculiarly Article 1. In this sense, psychological personality tests to evaluate sexual orientation would last precluded, equally the prohibition laid forth yesteryear the CJEU in A, B in addition to C is arguably non limited to physical examination, but extends to a greater extent than by in addition to large to all ‘“tests” amongst a view to establishing […] homosexuality’.
Secondly, should the CJEU follow the AG’s opinion, it would demand to carefully construe how it is possible to ensure that psychologists’ proficient opinions are really limited to an evaluation on the full general credibility, in addition to non just a loophole to pave the way to unreliable psychological assessments of sexual orientation.
Further, the Court should brand for sure that whatsoever such proficient opinions on credibility are non used equally ‘lie detectors’ based on preconceived assumptions – otherwise nosotros could good resort to Harry Potter’s veritaserum for all asylum claims. Moreover, the CJEU would demand to explicate how genuine consent tin post away last sought, since the alternative of taking tests that are non compulsory but seen equally useful for credibility assessment would pose push clit per unit of measurement area on other applicants to convey the tests, thus undermining the validity of whatsoever consent obtained.
Finally, should the CJEU concur amongst the work of projective personality tests inward SOGI asylum claims, it would compromise the progressive steps previously taken inward this expanse – a slippery gradient nosotros strongly hope the Court volition non enter. The CJEU has already spelled out, in A, B in addition to C, some of the crucial elements for deciding the introduce case; now, it is a affair of entrenching those elements, then equally non to piece of work out room for ambiguity or for the work of evidentiary way that are inward breach of asylum seekers’ dignity in addition to fundamental rights.
The authors wishing to give cheers the useful comments provided yesteryear Dr Carmelo Danisi in addition to Dr Moira Dustin on previous drafts of this text.
*Reblogged amongst permission from the EUMigrationlaw blog
Barnard & Peers: chapter 9, chapter 26
JHA4: chapter I:5
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