European Court of Justice finds asylum seeker may not be subjected to a psychological test to determine sexual orientation

F v Bevándorlási és Állampolgársági Hivatal (Court of Justice of the European Union, C473/16, 28 January 2018)

Summary

The Court of Justice of the European Union (ECJ) has held that subjecting an asylum seeker to psychological tests, designed to provide an indication of their sexual orientation, breaches their right to respect for private and family life under Article 7 of the EU Charter of Fundamental Rights (Charter).

F applied for asylum in Hungary claiming a well-founded fear of persecution in his country of origin on account of his homosexuality. In the course of assessing his application, Hungarian authorities ordered a psychologist’s report, the purpose of which was to provide an indication of F’s sexual orientation.

The ECJ found that, although the Charter does not generally preclude authorities from ordering expert reports when assessing facts and circumstances related to the declared sexual orientation of an applicant, the type of report prepared and used in this case – involving dubious methodologies that are highly intrusive – constitutes an unjustifiable interference with the most intimate aspects of an asylum seeker’s private life.

Facts

In April 2015, F – a Nigerian national – submitted an application for asylum to Hungarian authorities. In support of that application, F claimed that he had a well-founded fear of persecution in his country of origin on account of his homosexuality.

Directive 2011/95 of the European Parliament and of the Council (Directive) lays down certain minimum standards with regard to Member States’ procedures in assessing applications for international protection. Article 4 of the Directive provides (in part) that:

• the assessment of an application for protection must be carried out on an individual basis, taking into account relevant facts and circumstances including statements made by the applicant; and
• where aspects of an applicant’s statements are not supported by documentary or other evidence, those aspects will not need confirmation where certain conditions are met – these include that the applicant has made a genuine effort to substantiate their application, that they have found to be generally credible, and that their statements are found to be coherent and plausible and do not run counter to the available evidence.

Relevantly, Directive 2013/32 also requires Member States to ensure that personnel assessing applications are sufficiently competent to carry out their task – this includes having the appropriate skills to assess applications for protection based on sexual orientation.

In October 2015, the Hungarian Office for Immigration and Citizenship (Office) rejected F’s application and stated that there was no obstacle to his refoulement. In the course of assessing his application, the Office had commissioned an expert’s report prepared by a psychologist, which entailed the administration of several psychological tests on the applicant – namely, the Rorschach, Szondi and ‘Draw-A-Person-In-The-Rain’ projective personality tests. On the basis of these tests, the report concluded that it was not possible to confirm F’s assertion that he was homosexual. This conclusion led the Office to find that F lacked credibility, despite the fact that it had considered F’s own statements were not fundamentally contradictory.

F brought an action against the Office’s decision in the Hungarian courts. He contended that the psychological tests to which he had been subjected seriously prejudiced his rights under Article 7 of the Charter, which states:

Everyone has the right to respect for his or her private and family life, home and communications.

During the proceedings, the referring court ordered a report to evaluate the methods used to examine the applicant’s asylum application. The report concluded that those methods did not prejudice human dignity and were appropriate for giving an indication of an individual’s sexual orientation, as well as for calling into question the validity of a person’s statements in that regard. The court considered itself bound by the conclusions of that report and decided to stay the proceedings, referring the following questions to the ECJ for a preliminary ruling:

• when assessing the veracity of an applicant’s claim regarding their sexual orientation, does Article 4 of the Directive, read in light of the Charter, preclude the preparation and use of a psychologist’s expert report which uses projective personality tests to provide an indication of the sexual orientation of that applicant; and
• more generally, does Article 4 of the Directive, read in light of the Charter, preclude authorities from ordering an expert’s report in the context of assessing the facts and circumstances related to the declared sexual orientation of an applicant?

Decision

The second question

The ECJ addressed the referring court’s second question first and made two key findings.

First, it held that Article 4 of the Directive does not, of itself, restrict the means available to authorities when assessing facts and circumstances related to the declared sexual orientation of an applicant. This includes recourse to expert reports. Indeed, the ECJ considered that certain forms of expert report may prove particularly useful for assessing facts and circumstances relevant to an asylum claim based on an applicant’s sexual orientation – for example, to collect comprehensive information about the situation facing lesbian, gay, bisexual, transgender, intersex and/or queer (LGBTIQ) persons in the applicant’s country of origin. However, should recourse to such means be had, the procedures used must be consistent with EU law – in particular, the fundamental rights enshrined in the Charter.

Second, the court held that under Article 4 it is the responsibility of the agency charged with determining the asylum application to carry out an individual assessment of all the relevant facts and circumstances as they relate to the particular application. Accordingly, if an expert report is commissioned, the determining agency cannot abdicate its responsibility by basing its decision solely on the conclusions of that report and cannot – as the referring court had done – consider itself bound by those conclusions.

The first question

Applying the principles articulated above, the ECJ held that when read in light of Article 7 of the Charter, Article 4 of the Directive does preclude the preparation and use of a psychologist’s expert report of the kind at issue in the proceedings. Its reasoning proceeded as follows.

First, with regard to the impact on the applicant’s Article 7 rights, the ECJ noted that in circumstances where such a report is ordered, the applicant is in a particularly precarious position: their future is inextricably tied to the authority’s assessment of their claim for protection, and any refusal to undergo the psychological testing is likely to be a critical factor in determining their claim. Accordingly, even if the person’s formal consent to the testing is required, that consent is not freely given – it is imposed de facto by the pressure of the circumstances in which the applicant finds themselves. In those circumstances, the preparation and use of such a report constitutes an interference with the applicant’s right to respect for their private life – one that is “particularly serious”, as it intrudes upon the most intimate aspects of the applicant’s personal sphere and identity.

Second, the ECJ held that this interference is not a justifiable limitation on the applicant’s Charter rights because it fails the test of proportionality. Although interference with an applicant’s private life could be justified by the legitimate aim of obtaining information necessary to determine their application for protection, any such interference must be both appropriate and necessary to achieve that objective.

In that respect, given the terms of Article 4 of the Directive and the obligation of Member States to ensure that authorised personnel are sufficiently competent to assess an applicant’s claim for protection based on sexual orientation, the ECJ noted that recourse to an expert’s report of the kind in issue cannot be considered necessary for assessing the veracity of an applicant’s claim regarding their sexual orientation – especially where they have found to be otherwise credible.

In any case, the ECJ found that taking into account the seriousness of the intrusion posed by such a report on the most intimate aspects of the applicant’s private life, the interference is so clearly disproportionate to any benefit it could possibly provide for the assessment of facts and circumstances related to their application.

Accordingly it was held that, when read in light of the Charter, Article 4 precludes the preparation and use of the impugned expert’s report.

Commentary

This case is an important step forward for the rights of asylum seekers whose claims are based on sexual orientation and/or gender identity (SOGI). Principle 18 of the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity specifically states that no person may be forced to undergo any form of psychological test on account of their sexual orientation or gender identity. F’s case provides a strong illustration of the importance of that human rights principle and why it must be upheld in the context of SOGI asylum claims.

The notion that a psychological test can provide a reliable indication of a person’s SOGI is fundamentally at odds with both scientific consensus and the lived experience of LGBTQ people. On the one hand – as CJEU ECJ Advocate General Wahl pointed out in his opinion on the case – even a cursory examination of the scientific literature shows that, from a psychological point of view, homosexual and heterosexual men and women are indistinguishable.

But more importantly, the idea that SOGI is capable of objective measurement ignores the reality that individual experiences with, and expressions of, SOGI are highly subjective – fluid, dynamic and capable of infinite variance from person to person. Any method that purports to ‘determine’ sexuality by reference to objective criteria is, therefore, merely an exercise in the application of crude stereotypes about LGBTQ people to an aspect of individual identity that defies simple classification. Apart from being fundamentally repugnant to the dignity of LGBTQ people, such methods are devoid of any probative value and clearly have no place in assessing an asylum claim based on SOGI status.

Unsurprisingly, this reductive form of analysis is of a kind already discredited by the ECJ in the case of A and Others (ECJ, C-148/13 to C-150/13, 2 December 2014). To the extent that a determining authority relies on crude stereotypes about LGBTQ people in assessing a SOGI asylum claim, they have failed to make an individual assessment of the applicant’s particular situation and personal circumstances – to that end, they have breached their international obligations in respect of the proper, rights-compliant procedures to be applied in assessing the asylum seeker’s claim.

The full text of the decision can be found here.

James Campbell is a solicitor at King & Wood Mallesons.