In today’s case of C‑473/16 F v Bevándorlási és Állampolgársági Hivatal, the Court of Justice of the European Union ruled that national authorities may not prepare and use psychologists’ expert reports to assess the sexual identity of an asylum seeker.

I personally find the fact that this issue went to court quite disturbing, but I guess we can welcome the reminder.

Background

The applicant, F, is a gay Nigerian man, who claimed asylum in Hungary on the basis that he had a well-founded fear of persecution in Nigeria on account of his sexual identity. The Hungarian authorities refused his claim, saying that although “his statements were not fundamentally contradictory”, he “lacked credibility on the basis of an expert’s report prepared by a psychologist” (paragraph 22).

The expert report “entailed an exploratory examination, an examination of personality and several personality tests, namely the ‘Draw-A-Person-In-The-Rain’ test and the Rorschach and Szondi tests, and concluded that it was not possible to confirm F’s assertion relating to his sexual orientation”.

What expert methods can be used to assess a claimant’s sexual identity?

In short, the Hungarian court asked the Court of Justice:

1. whether the authorities can assess an asylum seeker’s statement on the basis of a psychologist’s report based on “projective personality tests”; and
2. whether, if a psychologist’s report could not be used, there were any expert methods they could use to examine the truthfulness of claimants applying on the basis of their sexual identity.

To the second question, the court responded that Article 4 of Directive 2011/95/EU

does not preclude the authority responsible for examining applications for international protection… from ordering that an expert’s report be obtained in the context of the assessment of the facts and circumstances relating to the declared sexual orientation of an applicant, provided that the procedures for such a report are consistent with the fundamental rights guaranteed by the Charter, that that authority and those courts or tribunals do not base their decision solely on the conclusions of the expert’s report and that they are not bound by those conclusions when assessing the applicant’s statements relating to his sexual orientation.

With regards to the first question, the court confirmed that the same article, read with Article 7 of the Charter

must be interpreted as precluding the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, such as that at issue in the main proceedings, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant.

In other words, psychologist experts are never acceptable but other expert reports may be.

Can psychologist experts ever be useful?

Here in the UK, the asylum policy instruction Sexual orientation in asylum claims already says that:

Where psychiatric or psychological expert opinion about sexual orientation is submitted, caseworkers must be mindful that being gay, lesbian or bisexual is not a mental disorder; there is no medical or psychological methodology for establishing an individual’s sexual orientation and any such examinations may be seriously humiliating and degrading. The ‘testing’ of sexual orientation in an asylum procedure is prohibited by the A, B and C judgment and such evidence must be refused and the claimant informed that any such report would not be considered as providing evidence of sexuality.

The A, B and C case referred to was discussed on this blog at the time by Helen Foot. It is unfortunate that the Court of Justice itself did not use that case to immediately rule out the possibility of national authorities using psychologist expert reports to prove a person’s sexual identity.

It seems to me that the only suitable reports would be about the treatment of LGBTQI+ people in a particular country, or the effect of past mistreatment on a claimant where the mistreatment could have been due to the claimant’s sexual or gender identity. Such medical evidence, including from psychologists or psychiatrists, might sometime be useful — when it goes to corroborate a claimant’s story, rather than their sexual identity per se.

For example, a claimant might have been abused in their country of origin because of their sexual identity, resulting in severe trauma. It might be useful for them to have an expert assessing their trauma, and setting out whether that trauma is consistent with their account. The report should never ever make a judgment on whether the claimant’s sexual identity is credible.

In fact, I would hope that the overwhelming majority of medical professionals would refuse to provide such reports.