In an e-mail posting on a practitioners’ discussion group last week, a representative asked the group for details of a psychiatrist in order to prove that the detained client is gay. In follow-up e-mails, it was revealed that the enquiry was prompted by Counsel’s advice, and that the author meant no offence. Luckily for the author of the enquiry, the Court of Justice of the European Union last Thursday published the Opinion of Advocate General Sharpston in the Cases of A, B and C , which relate to how an asylum seeker could establish that they are gay, or more importantly, what level of investigation would violate their human rights?

The Dutch authorities have been extremely pro-active in referring questions relating to LGB (Lesbian, Gay or Bisexual) asylum claims to the Luxembourg Court. Last November, the Court in the joined cases of X, Y and Z ruled that unenforced legislation which criminalised consensual private adult same-sex relations did not amount to the definition of persecution found in Article 9 (2) (c) of the 2004 (Minimum Standards) Qualification Directive: the lack of prosecutions, as defined in 9 (2) (c) was determinative in this point being doomed to failure. This author believes that the point should have been litigated under 9 (2) (b), the mere existence of discriminatory legislation, however, this will have to wait for a politically receptive Court in the next decade, resulting in a missed opportunity for change. Nevertheless, the Court accepted that the mere existence of such legislation provided a trigger for Particular Social Group Refugee Convention reason, as the group, due to the criminalisation, were identified by their ‘difference’.

In A, B and C the CJEU is being asked whether self-identification is enough, and whether any investigation of sexual identity is a breach of their physical or mental integrity rights and/ or is a breach of their private life rights (Articles 3 and 7 of the EU Charter)?   Louis Middlekoop raised this point in a paper he presented at Amsterdam’s Vu University’s Fleeing Homophobia conference in September 2011, and has highlighted various points in a 2013 blog post. This author has repeatedly made public his ‘concerns’ regarding phrasing a question on credibility assessment in such terms.   Each Member State should be able to investigate a claim, since the 2012 CJEU judgment in MM, such investigation at the application stage arises out of a shared responsibility between the national authorities and the asylum seeker.

The AG’s Opinion follows the 25 February 2014 hearing, where various points were put to UNHCR on what they referred to as a ‘black list’ (clearly result in Charter violations) and what should be on a ‘grey list’ (may constitute a violation) [50]. In her 17 July 2014 Opinion, the AG has made clear that video and photographic evidence should not be asked for [65].  As I have repeatedly voiced since becoming aware of such evidence being relied on prior to the February 2013 Stonewall lecture, AG Sharpston’s reference that such evidence can be fabricated, making it difficult to distinguish between the genuine and bogus applicant [65], is a point I endorse. This author predicted in an April 2014 meeting with the Home Office this would be the line the CJEU would take, enabling rejection of such degrading and humiliating material. We will have to wait and see what the Court will say on this point in their final judgment.

Whilst the AG accepts that self-identification is a starting point [40], credibility is the central issue [43], and therefore subject to investigation by the national authorities [48].   Staring from the premise that there is no medical test to prove sexual identity, phallometry (a ‘pseudo-medical’ examination attaching electrodes to measure sexual response to pornography – a process used in cases in the Slovak and Czech republics until 2011) is held to be too ineffective and contrary to the Articles 3 and 7 of the Charter [62]. Importantly, questions relating to sexual activity, arising out of stereotypical assumptions, are inappropriate and disproportionate (Article 52(1) of the EU Charter) [65]. Controversially, in light of the evidence evaluation requirement of Article 4 (3) (b) of the 2004 Directive to assess ‘all statements and documentation presented by the applicant’ relied on by a UK NGO to require the Home Office to assess such evidence, AG Sharpston has made clear that such ‘consent’ does not change the fact that Charter violations occur, for any of the practices addressed by her [66].  This is a finding which I agree whole-heartedly with. National authorities are able to investigate, with self-identification a non-determinative starting point, enabling investigation of credibility of the applicant. AG Sharpston can find no breach of the Procedures Directive when following this approach.

Worryingly, AG Sharpston does not rule out assessment of credibility arising out of demeanour [92 and 93]. This has given rise to countless determinations of LGB applicants who have been found by Tribunals not to have presented as LGB (not a effeminate man, not a ‘butch’ woman). The reference to demeanour in the opinion should not, in my opinion, be followed by the Court. The devil is in the detail, and in my experience, when an LGB applicant is given the safe space to disclose their narrative, these narratives are detailed.

The important lacuna in AG Sharpston’s shopping list is that it provides absolutely no guidance in what approaches the Court should endorse. She refers to an agreement amongst the parties that there is no objective method for verification [35]. Since the June 2011 meeting of international NGOs in Geneva, the UNHCR made clear the concerns of national governments regarding a need for some sort of questionnaire. This author made clear, as an individual who is not known to be a shy retiring wall flower that this would happen over his dead body! A questionnaire of 40 questions would result in an applicant who was only able to answer 15 questions ‘correctly’ as ‘not gay’, and noting the historical response to Somali minority clan applicants, an individual who answered 39 questions correctly as having learnt the answers from the internet.

If you ask a straight man, ‘when did you first realise you were straight?’, in my experience, the straight man will look at you with questioning eyes, unable to answer. Does this mean the individual is not a straight man? So, why do we ask the LGB applicant, ‘When did you first realise you are gay?’. Having worked in this specific niche area for 13 years, the majority, noting not all of my clients, refer to points in their lives, many years before any sexual awakening, where they felt ‘different’. As the Luxembourg Court held in X, Y and Z in November 2013, it is this ‘difference’ which identifies the victim to the potential persecutor, which brings them within the PSG Convention reason definition.

The DSSH model (‘Difference, Stigma, Shame and Harm’ – see slides) is a model developed by me to enable the asylum applicant an ability to address their individual narrative by asking specific ‘trigger questions’, to enable further investigation. This model will not apply to every applicant, but when applied it has led to detailed narratives which has resulted in positive grants of refugee status.  First developed as part of my Law PhD research at King’s College London, with an initial outing at the ELENA Conference in April 2011 in Leuven, further training has been provided on the model in the UK, Bled, Brussels, Warsaw, Amsterdam, Madrid, Malta, Budapest, Trier, Geissen, Palermo, Kampala and Stockholm, with representatives from 16 governments in Geneva (October 2012), and 12 in Budapest (May 2014). The model will also form the basis of a Chapter on Sexual Orientation and Gender Identity Credibility Assessment in the Second Volume of the Credo Project’s “Credibility Assessment in Asylum Procedures”, and has the objective of providing a humane approach to establishing an asylum claim based on sexual or gender identity.

When the LGB applicant recognises their ‘difference’, even when a child, this is due to the fact that they do not conform to gender sex-roles which are lived by those around them. They then recognise that external actors do not ‘approve’ of their difference, resulting in recognition of ‘Stigma’. Stigma is connected with social/cultural/religious norms, be they through family and neighbours, to religious and political leaders. A natural consequence of Stigma is internalised feelings of ‘Shame’. As the UK Supreme Court held in HJ (Iran) and HT (Cameroon) in July 2010, just as there is no benchmark to measure what constitutes ‘reasonable tolerability’, there is none for ‘shame’, but this is in the context that no straight person would require such a threshold, it is a natural consequence of the impact of, in this case, Stigma. ‘Difference, Stigma and Shame’ exist is the majority of LGB narratives throughout our global community: just ask you gay friends. What makes the LGB refugee? ‘Harm’ – i.e. the harm directed towards them due to their difference. The core point is that the applicant does not conform to a stereotype of heteronormative conduct held by the potential persecutor, hence the harm, and consequent asylum claim. If it was not for this ‘difference’, there is no refugee claim.

The DSSH model was endorsed by the UNHCR in their International Protection Guidelines (see para 62) in October 2012, which coincided with an international workshop for governments in Geneva. Since then, this author has travelled to provide training on the model to NGOs, practitioners and most importantly governmental decision-makers. In 2014, the model has been followed by the authorities in New Zealand, and the governments of Sweden, Germany, Finland and Cyprus are known by this author to be assessing the model for guidance.   This Summer, the Home Office referred to the model as an alternative model to be referred to in determining identity, when providing refresher training to all UK Caseworkers. The Independent Chief Inspector John Vine’s review on LGB claims should now be with the Home Secretary.

The Court’s judgment should be with us by the end of this year. Whilst I celebrate AG Sharpston’s ruling out sexually explicit questioning and material, reliance of medical and pseudo-medical evidence, as all violations of the EU Charter even with consent, all of us working with LGB applicants need to ensure that we focus on the narrative, and not how the narrative is disclosed. If we focus on demeanour, noting that for LGB applicants who have been forced to be evasive and live double-lives prior to fleeing to Europe in order to survive, and then stereotypes are extremely dangerous, then there is a real risk that those who genuinely need our protection will be failed by the system out of sheer ignorance. With the alphabet soup involved in such cases, let’s make sure that for A, B and C, we bring the appropriate DSSH.

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