In a ruling likely to produce significant changes in how immigration officials in European countries deal with gay asylum applicants, a European Union court has set limits on the requirements of proof demanded of them.
In a December 2 ruling in appeals from three gay Africans seeking asylum in the Netherlands, the European Court of Justice held that human rights law there bars officials attempting to determine whether the applicants are in fact gay from basing their inquiry on homosexual stereotypes, from asking detailed questions about sexual practices, from requiring them to submit to “tests” to establish their homosexuality or to provide evidence such as films of them engaging in homosexual conduct. The court also found it is inappropriate to decide that applicants are not credible merely because they did not declare their sexual orientation in their first encounter with authorities.
The ruling did not name the asylum seekers, identifying them simply as A, B, and C.
Decision on African immigrants in Holland curbs arbitrariness, recognizes sexuality’s deeply private nature
Asylum claims are governed by a complex body of both international and national laws. There is, however, a significant consensus that the term “particular social group” identified in a foundational 1951 international treaty on refugees includes sexual minorities. The European Union’s directives on refugees and asylum seekers build on that 63-year-old treaty.
In general, the burden is on asylum seekers to show they fit into one of the categories afforded protection, which can be difficult when national immigration authorities voice skepticism. Many LGBT asylum seekers, who have spent their lives hiding their identity in their home countries, are fearful of being honest in their intended country of refuge and may make up stories about other forms of persecution, which only hurts their credibility in the long run. Even without that problem, the lack of documentation establishing their sexuality or anyone who can vouch for them means LGBT asylum seekers face a high hurdle to establish their claims of persecution.
In the cases before the European court, applicant A was deemed not credible based on his first application, and he filed a second application “stating that he was prepared to take part in a ‘test’ to prove his homosexuality or to perform a homosexual act to demonstrate the truth of his declared sexual orientation.” Even with that extraordinary offer, Dutch authorities were unwilling to credit his claim of being gay.
Applicant B was rejected on the ground that his statements about his homosexuality “were vague, perfunctory, and implausible.” The Dutch government, noting he came from a county where homosexuality was “not acceptable,” asserted he should have been able to “give more details about his emotions and his internal awareness of his sexual orientation.”
Applicant C’s first application, which was rejected, stated asylum grounds other than homosexuality. When he claimed homosexuality in his second application, his credibility was questioned, even though he gave authorities a video showing him engaged in “intimate acts with a person of the same sex.” Authorities said he was unable to answer questions about how he had become conscious of his homosexuality and was unaware of Dutch gay rights organizations.
All three applicants were rejected throughout the Netherlands’ immigration process, but the Dutch government eventually referred their cases to the European Court of Justice, expressing concern about conforming the its investigatory process to applicable international and national laws.
The European Court confirmed that nations are within their rights to require some confirmation that asylum applicants who say they are gay are in fact gay. At the same time, the court found that applying stereotypical and categorical notions of what a gay person is like or should know was antithetical to resolving claims on a case-by-case basis.
And inquiries based on demanding information about or video evidence of sexual practices violated the fundamental human rights of asylum seekers.
Perhaps the court’s most significant conclusion, however, was that somebody’s credibility was not automatically compromised if they didn’t raise their sexual orientation at the first opportunity in the asylum process.
“Having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset,” the court found.
The European Court ruling is especially timely given the recent sharp increase in asylum applications from LGBT refugees from Africa, the Middle East, and Russia, most of whom would likely have great difficulty providing the kind of documentation routinely available for political or religious dissenters fleeing with family and compatriots.