The three above-named applicants for asylum in The Netherlands all claimed to be homosexual. Their applications were rejected for lack of credibility on various grounds. They challenged those decisions and the court dealing with the challenges referred a question to the Court of Justice of the European Union (CJEU), asking what limits did Article 4 of the Qualification Directive (Directive 2004/83/EC) and the Charter of Fundamental Rights (CFR), in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and whether those limits differed from the limits which applied to assessment of the credibility of the other grounds of persecution and, if so, in what respect?
Reasoning and decision:
The CJEU noted that the referring court considered that the mere fact of putting questions to an applicant for asylum might infringe the rights guaranteed by the aforementioned provisions of the CFR, and that, whatever method was adopted to verify the declared sexual orientation, it could not be ruled out that there was a risk of infringing the fundamental rights of the applicants for asylum, such as those guaranteed by Articles 3 and 7 CFR.
The CJEU held that applications for international protection based on homosexuality were, just as any other claim, subject to the assessment process provided for in Article 4 of the Qualification Directive. However, the methods used to assess the evidence submitted in support of such applications had to be consistent with both the provisions of the Qualification Directive and the Procedures Directive (Directive 2005/85/EC) and, as was clear from recitals 10 and 8 respectively to the preambles to those directives, with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 of it. Where necessary, the competent authorities therefore had to modify their methods of assessing the evidence having regard to the specific features of each category of application for asylum, in observance of the rights guaranteed by the CFR.
Under Article 4 of the Qualification Directive, a two-step assessment took place: the first stage concerned the establishment of factual circumstances which might constitute evidence that supported the application; and the second stage related to the legal appraisal of that evidence, in order to decide whether the substantive conditions were satisfied for the grant of international protection.
The CJEU turned to assess compatibility with the Qualification Directive, the Procedures Directive and the CFR of, first, the verifications carried out by the competent authorities based on, in particular, stereotypes as regards homosexuals and detailed questioning as to the sexual practices of an applicant for asylum and the option, for those authorities, of allowing the applicant to submit to “tests” with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts and, secondly, the option of making a finding of a lack of credibility on the basis of the sole fact that the applicant in question did not rely on his declared sexual orientation on the first opportunity he had to set out the grounds for persecution.
The CJEU held, first, that assessments based on questioning as to the knowledge on the part of the applicant for asylum of organisations for the protection of the rights of homosexuals, suggested that the authorities based their assessments on stereotyped notions as to the behaviour of homosexuals and not on the basis of the specific situation of each applicant for asylum. It pointed out that Article 4(3)(c) of the Qualification Directive required the competent authorities to carry out an assessment that took account of the individual position and personal circumstances of the applicant, and that Article 13(3)(a) of the Procedures Directive required those authorities to conduct the interview in a manner that took account of the personal and general circumstances surrounding the application.
Accordingly, whilst questions based on stereotyped notions might 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 did not satisfy the requirements of the provisions referred to in the previous paragraph, in that it did not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned.
It held, accordingly, that an inability of an allegedly homosexual applicant for asylum to answer such questions could not, in itself, constitute sufficient grounds for concluding that the applicant lacked credibility, for such an approach would contravene the requirements of Article 4(3)(c) of the Qualification Directive and of Article 13(3)(a) of the Procedures Directive.
Secondly, the CJEU held that the national authorities were not entitled during interviews to ask questions concerning details of the sexual practices of the applicant, as this would be contrary to the fundamental rights guaranteed by the CFR and, in particular, to the right to respect for private and family life in Article 7.
Thirdly, it considered the option available to the national authorities of allowing, as certain applicants in the proceedings had proposed, the performance of homosexual acts, the submission of the applicants to possible “tests”, and the production by those applicants of evidence such as films of their intimate acts. It held that, besides the fact that such evidence did not necessarily have any probative value, its nature would infringe human dignity, the respect of which was guaranteed by Article 1 CFR, Moreover, authorising or accepting such types of evidence would simply encourage other applicants to make similar offers and eventually become a requirement.
Fourthly, it held that it could not be concluded that an applicant’s alleged homosexuality lacked credibility simply because he or she did not declare it at the outset of the asylum procedure. To do so would be to fail to have regard to the requirement under Article 13(3)(a) of the Procedures Directive and Article 4(3) of the Qualification Directive to conduct an interview which took 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 application, taking account of his individual position and personal circumstances.