Lgbti Asylum-Seekers: The Cjeu Sends Mixed Messages

 

 

Steve Peers

 

Many countries worldwide all the same impose severe criminal sanctions as well as other forms of sick handling on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, whatsoever non - European Union citizen suffering persecution on grounds of sexual orientation tin try asylum inwards the EU, claiming that they are business office of a 'particular social group' beingness persecuted, inwards accordance amongst the EU's qualification Directive.
 

The Court's prior case-law (the X, Y as well as Z judgment of 2013) farther clarifies that they make non possess got to conk on their sexuality hidden inwards their province of rootage inwards gild to claim refugee status. But the mere existence of criminal police prohibitions inwards the province of rootage doesn't necessarily hateful that LGBTI asylum-seekers are beingness persecuted: the crucial inquiry is whether such laws are genuinely beingness enforced.
 

Before getting to the lawsuit of persecution, though, how tin the government banking concern stand upward for whether asylum-seekers are gay or lesbian inwards the start place? In today's judgment inwards A, B as well as C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but all the same leaves to a greater extent than or less leeway for dubious conduct yesteryear national authorities.

 

The judgment
 

Asked yesteryear a Dutch courtroom to clarify what national government tin make to flora the sexual orientation of asylum seekers, the CJEU begins yesteryear stating that a mere self proclamation yesteryear the asylum seeker is non sufficient. This is alone the starting betoken of the assessment.
 

Although European Union legislation does non address the lawsuit of the credibility of asylum seekers inwards much detail, the CJEU states that the physical care for of determining credibility must move consistent amongst the European Union Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they tin move adapted to particular groups.
 

First of all, the CJEU states that questions 'based on stereotypical notions may move useful' to national authorities. But they cannot base of operations their decisions purely on such notions, as well as the asylum seeker's inability to reply such questions cannot hateful that he or she has no credibility.
 

Secondly, the CJEU rules against detailed questioning close asylum seekers' sexual activity life, on the grounds that this would breach Article seven of the Charter (the correct to privacy). (On the questions which are asked inwards practice, run into Colin Yeo's before post on the Free Movement blog).
 

Thirdly, the CJEU rules that LGBTI asylum-seekers should non perform sexual activity acts, make films of their sexual activities or undergo medical testing to evidence their orientation. This would breach Article 1 of the Charter (the correct to human dignity) every bit good every bit Article 7.
 

Finally, the CJEU rules that Member United States of America cannot assume that LGBTI asylum-seekers lack credibility only because they didn't heighten the lawsuit of their sexuality every bit shortly every bit possible, inwards lite of the sensitivity of the topic. However, the Court does non dominion on to a greater extent than or less additional procedural issues considered inwards the Opinion of the Advocate-General.
 

Comments

 

The Court's judgment frees LGBTI asylum-seekers from many specially obnoxious forms of testing as well as questioning. In particular, it frees them from phallometric testing. The Court didn't refer the details of this process, but suffice it to say that it involves examining men's physical reaction to viewing pornography. The judgment should possess got added that this physical care for is likewise a breach of Article 4 of the Charter, every bit a shape of degrading treatment.
 

As for producing films or engaging inwards sexual activity acts, the Court was correct to dominion out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would move pressured to make the same thing.
 

The ruling likewise usefully clarified that LGBTI asylum-seekers make non demand to declare their sexual orientation every bit shortly every bit possible. This takes concern human relationship of the social reality for people who possess got exactly fled countries where their personal identity is taboo.
 

On the other hand, today's judgment is unhelpful to the extent that it refers to the possibility of 'useful stereotypes' when questioning LGBTI asylum-seekers. Although the Court alone refers inwards this context to questions close the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling powerfulness move interpreted to endorse assumptions that (for instance) gay men don't similar sports, or that lesbians possess got curt hair. Such stereotypes powerfulness move alone mildly annoying on a twenty-four threescore minutes menses - to - twenty-four threescore minutes menses basis. But if they are used inwards gild to refuse an asylum claim, they could move fatal to the somebody concerned.
 

Admittedly, the Court rules out relying on the answers to such questions every bit the sole footing for denying asylum. Nor is it possible to determine that an asylum seeker who can't reply such questions has no credibility. But it is all the same possible that an asylum seeker volition lose credibility if he or she gives the 'wrong' reply to these questions; as well as those answers tin shape business office of the assessment of credibility.

More broadly, the Court's approach fails to convey sufficient concern human relationship of the broad multifariousness of the facial expression of human sexual identity, especially inwards countries where homosexuality is taboo.
 

While to a greater extent than or less questions relating to LGBTI asylum-seekers' credibility must move acceptable, given that the Court ruled out self - proclamation every bit an automatic route to flora such credibility, the Court could sure possess got found a amend shape of words than 'useful stereotypes'. It could, for instance, possess got endorsed the relevant UNHCR guidelines discussed inwards the Advocate-General’s opinion.

Although in that location are many positive aspects of today's judgment, the CJEU's unjustified aversion to human rights soft police may motility problems for many LGBTI asylum-seekers inwards practice.

Barnard as well as Peers: chapter 26

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