In welcome news for LGBT asylum claimants, the Court of Justice of the European Union ruled this week that ‘tests’ to prove a claimant’s sexual orientation, or intimate questioning about sexual behaviour, may breach the rights to human dignity and respect for private life contained in Articles 1 and 7 of the Charter for Fundamental Rights. The ruling contains useful material for challenging adverse credibility findings in Home Office refusal letters, often resulting from prurient questioning in the asylum interview.

In A, B and C v Staatssecretaris van Veiligheid en Justitie (Cases C‑148/13 to C‑150/13) the applicants were gay men whose asylum claims were rejected on credibility grounds by the Dutch Secretary of State. In one case, the applicant offered to undergo a ‘test’ of his sexual orientation; another applicant submitted a video of himself having sex with another man. The more prosaic legal issue for the court was whether Article 4 of the Qualification Directive (2004/83/EC), read in conjunction with the Charter of Fundamental rights, imposes limits on the assessment of the facts and circumstances surrounding an asylum claimant’s declared sexual orientation.

The CJEU ruled that it does, in the following four ways. First, the assessment of an applicant’s claimed sexual orientation should take into account the individual circumstances of the applicant and not rely on stereotyped notions of the behaviour of gay people. That much is required by Article 4(3)(c) of the Qualification Directive (2004/83), and also Article 13 (3)(a) of the Asylum Procedures Directive (2005/85/EC), providing that interviews be conducted in a manner that takes account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability. Hence familiar arguments about the risks of stereotyping can now be grounded in EU law.

Second, Article 4 of the Qualification Directive, read in the light of the right to respect for private and family life in Article 7 of the Charter, precludes detailed questioning as to an applicant’s sexual practices. Once more, this adds another dimension to the important argument, reflected in the UNHCR guidelines, that sexual orientation has more to do with personal identity than individual sexual behaviour.

Third, reliance on any ‘test’ of sexual orientation, including video of an applicant having sex, infringes human dignity as required by Article 1 of the Charter. Sensibly the court also recognises the limited probative value of such evidence.

Finally the court finds that delay in disclosure should not be held against a gay applicant for asylum. In particular, the requirement to substantiate an application ‘as soon as possible’ (Article 4(1) of the Qualification Directive) is tempered by the provision in Article 13(3)(a) of the Procedures Directive to take into account the vulnerability of the applicant. Again this translates into EU law the recognition that delayed disclosure is common in cultures where being gay is surrounded by shame and stigma. Some LGBT asylum seekers may never have spoken openly about their sexual orientation prior to their asylum interview.

The ruling in A. B and C comes just 6 weeks after the publication of a report by John Vine, the Chief Inspector of Borders and Immigration, into the assessment of asylum claims based on sexual orientation. As previously discussed on this blog, that report found evidence of stereotyping and intrusive questioning of LGBT claimants, now plainly contrary to EU law. We can hope that the CJEU ruling, as well as the report’s recommendations, will lead to more sensitive interviewing by Home Office officials.