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CJEU - Joined Cases C 148/13, C 149/13 and C 150/13 / Opinion

A, B and C

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General Sharpston
Type:
Opinion
Decision date:
17/07/2014
Key facts of the case:
 
(Request for a preliminary ruling from the Raad van State (Netherlands))
 
(Common European Asylum System — Directive 2004/83/EC — Refugee status — Directive 2005/85/EC — Assessment of applications for international protection — Assessment of facts and circumstances — Credibility of an applicant’s averred sexual orientation)
 
Results (sanctions) and key consequences of the case:
 
93. In the light of the foregoing considerations, I propose that the Court should answer the question referred by the Raad van State (the Netherlands) to the following effect:
 
Where an application for refugee status, made under Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) and assessed according to the rules in Council Directive 2005/85/EC of 1 December 2005 (on minimum standards on procedures in Member States for granting and withdrawing refugee status), is founded upon the claim that the applicant belongs to a particular social group because of his sexual orientation within the meaning of Article 10(1)(d) of Directive 2004/83, that application is subject to an assessment of the facts and circumstances for the purposes of Article 4 of Directive 2004/83. The purpose of that assessment is to establish whether the applicant’s account is credible; and in conducting their examination the competent authorities must comply with the Charter of Fundamental Rights of the European Union, in particular Articles 3 and 7 thereof.
 
An applicant’s averred statement of his own sexual orientation is an important element to be taken into account. By contrast, practices such as medical examinations, pseudo-medical examinations, intrusive questioning concerning an applicant’s sexual activities and accepting explicit evidence showing an applicant performing sexual acts are incompatible with Articles 3 and 7 of the Charter; and general questions from competent authorities based on stereotypical views of homosexuals are inconsistent with assessment of the facts relating to a particular individual required by Article 4(3)(c) of Directive 2004/83.