EU Court: verification sexual orientation asylum seeker must not infringe fundamental rights

Wednesday, 3 December 2014

Yesterday, the Court of Justice of the European Union (CJEU) ruled that authorities, when verifying the sexual orientation of an asylum seeker, should always comply with the EU’s Charter of Fundamental Rights.

The Court of Justice of the European Union CJEUThe case ended on the Court’s plate after Dutch authorities refused to grant asylum to three third-country nationals, who sought asylum on the basis of fear of persecution in their country of origin relating to their homosexuality. The Dutch Raad van State (Council of State) asked for a ruling on what limits are imposed by EU law regarding verification of applicants’ sexual orientation.

In its judgement, the Luxembourg-based Court states that while declarations by the applicant are the starting point of the assessment, they may require confirmation. However, in verifying the sexual orientation of the applicant, human dignity and the right for private and family life should be respected.

This means that failure to answer questions relating to stereotyped notions of homosexuality cannot be a sufficient reason to reject an applicant.

Also questions relating to the applicant’s sexual practices infringe the right to respect to private and family life, and are as such not in line with the Charter of Fundamental Rights.

Furthermore, submitting asylum seekers to certain ‘tests’ to proof their sexual orientation, would infringe human dignity and constitute a breach with the Charter.

Lastly, the Court ruled that late disclosure of an applicant’s sexual orientation should not affect the applicant’s credibility.

Sophie in ‘t Veld MEP, Vice-President of the Intergroup-designate on LGBTI rights, reacted: “I am very happy with the Courts’ ruling. We have repeatedly asked the European Commission to intervene when asylum seekers’ rights were infringed. In vain.”

“I hope in the future, the Commission and Member States will take their responsibility and defend fundamental rights, and not leave it to the courts.”

Dennis de Jong MEP, Vice-President of the Intergroup-designate on LGBTI rights, reacted: “I welcome this judgment by the Court of Justice which makes very clear that authorities should respect asylum seekers’ dignity when verifying their sexual orientation.”

“I am glad that asylum seekers will no longer be confronted with decisions based on stereotypes, prejudice and degrading tests, supposedly proving homosexuality. It is time for all Member States to move to verification methods respecting the fundamental rights of asylum seekers. This Court ruling is an important push in that direction.”


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