CJEU Case C-473/16 / Judgment

F v Bevándorlási és Állampolgársági Hivatal.
Policy area
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Third Chamber)
Type
Decision
Decision date
25/01/2018
ECLI (European case law identifier)
ECLI:EU:C:2018:36
  • CJEU Case C-473/16 / Judgment

    Key facts of the case

    Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság.

    Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Article 7 — Respect for private and family life — Directive 2011/95/EU — Standards for granting refugee status or subsidiary protection status — Fear of persecution on grounds of sexual orientation — Article 4 — Assessment of facts and circumstances — Recourse to an expert’s report — Psychological tests

    Outcome of the case

    On those grounds, the Court (Third Chamber) hereby rules:

    1. Article 4 of Directive 2011/95/EC of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that it does not preclude the authority responsible for examining applications for international protection, or, where an action has been brought against a decision of that authority, the courts or tribunals seised, 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 of Fundamental Rights of the European Union, 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.

    2. Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of Fundamental Rights, 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.

  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Article 1 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 4 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

    ...

    24) The referring court notes that the applicant in the main proceedings was unable to show specifically how those tests prejudiced the fundamental rights guaranteed by the Charter. It also states that he declared that he had not undergone any physical examination and had not been required to view pornographic photographs or videos.

    ...

    26) In those circumstances, the Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

    ‘(1) In the light of Article 1 of the [Charter], must Article 4 of Directive [2011/95] be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to [Lesbian, Gay, Bisexual, Transsexual and Intersexed (“LGBTI”)] applicants for asylum, when, in order to formulate that opinion, no questions are asked about the sexual habits of the applicant for asylum and that applicant is not subject to a physical examination?

    (2) If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive [2011/95] be interpreted, in the light of Article 1 of the [Charter], as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the claims of the applicant for asylum, irrespective of the particular characteristics of those methods?’

    ...

    35) Nevertheless, the procedures, should recourse be had, in that context, to an expert’s report, must be consistent with other relevant EU law provisions, and in particular with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 53).

    36) Even though Article 4 of Directive 2011/95 is applicable to all applications for international protection, whatever the ground for persecution relied on in support of those applications, it is for the competent authorities to adapt their methods of assessing statements and documentary or other evidence having regard to the specific features of each category of application for international protection, in observance of the rights guaranteed by the Charter (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 54).

    ...

    46) In the light of those considerations, the answer to the second question is that Article 4 of Directive 2011/95 must be interpreted as meaning that it does not preclude the authority responsible for examining applications for international protection, or, where an action has been brought against a decision of that authority, the court or tribunal seised, 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.

    ...

    47) By its first question, the referring court asks, in essence, whether Article 4 of Directive 2011/95, read in the light 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.

    48) It follows from the answer to the second question and the considerations set out in paragraph 35 of the present judgment that, although Article 4 of Directive 2011/95 does not prevent the determining authority or the courts or tribunals seised of an action against a decision of that authority from ordering, in circumstances such as those at issue in the main proceedings, that an expert’s report be obtained, the procedures for recourse to such a report must be consistent with, in particular, the fundamental rights guaranteed by the Charter.

    49) The right to respect for private and family life, as affirmed in Article 7 of the Charter, in particular, is among the fundamental rights having specific relevance in the context of the assessment of the statements made by an applicant for international protection relating to his sexual orientation (see, to that effect, judgment of 2 December 2014, A and Others, C‑148/13 to C‑150/13, EU:C:2014:2406, paragraph 64).

    50) Article 4 of Directive 2011/95 must, accordingly, be interpreted in the light of Article 7 of the Charter (see, by analogy, judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 28).

    ...

    55) Under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

    ...

    70) That being so, it is not necessary, in order to answer the first question, to interpret Article 4 of Directive 2011/95 also in the light of Article 1 of the Charter.

    71) It follows from the foregoing that the answer to the first question is that Article 4 of Directive 2011/95, read in the light of 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.

    ...

    72) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    On those grounds, the Court (Third Chamber) hereby rules:

    1. Article 4 of Directive 2011/95/EC of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that it does not preclude the authority responsible for examining applications for international protection, or, where an action has been brought against a decision of that authority, the courts or tribunals seised, 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 of Fundamental Rights of the European Union, 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.

    2. Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of Fundamental Rights, 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.

  • Paragraphs referring to EU Charter (original language)