Article 7 - Respect for private and family life
Article 3 - Right to integrity of the person
59. I should also indicate that I disagree with the position of the Belgian Government in so far as it regards the issue as creating more flexibility in favour of applicants seeking refugee status on the grounds of sexual orientation. Rather, it is a matter of establishing the parameters of Member States’ action when applying the Qualification Directive and the Procedures Directive. Accordingly, I shall identify below those practices which I consider to be incompatible with Article 4 of the Qualification Directive interpreted in the light of the Charter.
60. Within the European Union, homosexuality is no longer considered to be a medical or psychological condition. (65) There is no recognised medical examination that can be applied in order to establish a person’s sexual orientation. As regards the right to private life, interference with an individual’s right to his sexual orientation can only be made where, inter alia, it is provided for by law and it complies with the principle of proportionality. (66)
61. Since homosexuality is not a medical condition, any purported medical test applied to determine an applicant’s sexual orientation could not, in my view, be considered to be consistent with Article 3 of the Charter. It would also fail the proportionality requirement (Article 52(1)) in relation to a violation of the right to privacy and family life because, by definition, such a test cannot achieve the objective of establishing an individual’s sexual orientation. It follows that medical tests cannot be used for the purpose of establishing an applicant’s credibility, as they infringe Articles 3 and 7 of the Charter. (67)
62. The German Government and the UNHCR commented in particular on the pseudo-medical test of phallometry (68) in their respective observations. It follows from what I have said in points 60 and 61 above which apply mutatis mutandis to such pseudo-medical tests that I consider such tests to be prohibited by Articles 3 and 7 of the Charter. Phallometry is a particularly dubious way of verifying homosexual orientation. First, it involves the competent national authorities in facilitating the purveying of pornography in order to enable such tests to be conducted. Second, it ignores the fact that the human mind is a powerful instrument and a physical reaction to the material placed before the applicant could be provoked by the person imagining something different from the image that he is being shown. Such tests fail to distinguish between genuine applicants and bogus ones and are clearly therefore ineffective as well as in violation of fundamental rights.
63. It seems to me that explicit questions concerning an applicant’s sexual activities and proclivities are also inconsistent with Articles 3 and 7 of the Charter. By their very nature, such questions violate an individual’s integrity as guaranteed by Article 3(1) of the Charter. They are intrusive and violate respect for private and family life. Their probative value in the context of an application for refugee status is, moreover, questionable. First, a bogus applicant can easily invent the necessary information. Second, such a practice may alienate certain individuals (including genuine applicants) and thus undermines the principle of cooperation between the applicant and the national authorities (Article 4(1) of the Qualification Directive).
64. Moreover, the Court stated in X, Y and Z that, in relation to the expression of sexual orientation, nothing in the wording of Article 10(1)(d) of the Qualification Directive suggests that the EU legislature intended to exclude certain other types of acts or expression linked to sexual orientation from the scope of that provision. (69) Thus, Article 10(1)(d) of the Qualification Directive does not lay down limits on the attitude that the members of a particular social group may adopt with respect to their identity or to behaviour which may or may not fall within the definition of sexual orientation for the purposes of that provision. (70)
65. That suggests to me that the Court thereby recognised that the competent authorities should not examine applications for refugee status on the basis of a homosexual archetype. Unfortunately, an examination based upon questions concerning an applicant’s sexual activities would indeed suggest that those authorities are basing their assessment upon stereotypical assumptions about homosexual behaviour. Such questions are unlikely to be able to distinguish genuine applicants from bogus claimants who have schooled themselves in preparing their application, and are therefore inappropriate and disproportionate within the meaning of Article 52(1) of the Charter.
66. In my view it is clearly contrary to Article 7 of the Charter to require applicants to produce evidence such as films or photographs or to request them to perform sexual acts in order to demonstrate their sexual orientation. I add that, again, the probative value of such evidence is doubtful because it can be fabricated if needed and cannot distinguish the genuine applicant from the bogus.
67. Even if an applicant consents to any of the three practices (medical examinations, (71) intrusive questioning, or providing explicit evidence), such consent does not change my analysis. The applicant’s consent to a medical test for something (homosexuality) that is not a recognised medical condition (i) cannot remedy a violation of Article 3 of the Charter, (ii) would not increase the probative value of any evidence obtained and (iii) cannot render such a limitation of the rights guaranteed by Article 7 of the Charter proportionate for the purposes of Article 52(1). Furthermore, I also entertain serious doubts as to whether an applicant, who is the vulnerable party in the procedure of applying for refugee status, could really be deemed to have given fully free and informed consent to the competent national authorities in such circumstances.
68. All parties making observations to the Court accept that sexual orientation is a complex issue. Therefore, in conducting the credibility assessment the national authorities should not apply stereotypical notions to applicants’ claims. Determinations should not be predicated on the assumption that there are ‘correct’ and ‘incorrect’ responses to an examiner’s questions — for example, that an applicant is not credible if he did not experience anxiety when he realised that he was homosexual rather than heterosexual, or fails to display knowledge of political issues or particular activities that concern homosexuals. Such practices are inconsistent with Article 4(3)(c) of the Qualification Directive which requires the competent authorities to take account of the individual and personal circumstances of the applicant in question. I add for the sake of good order that the purpose of the interview is to invite the applicant to give his account. If in so doing he volunteers, for example, explicit sexual information about himself, that situation is distinguishable from the competent authorities posing such questions to him. However, it still remains incumbent on those authorities to assess his credibility bearing in mind that information of that nature cannot establish his sexual orientation. In that respect I draw attention to the UNHCR guidelines.
69. I conclude that, since it is not possible to determine an individual’s sexual orientation definitively, practices which seek to do so should play no part in the assessment process under Article 4 of the Qualification Directive. Such practices infringe Articles 3 and 7 of the Charter. Depending on the circumstances of the case, they might well breach other rights guaranteed by the Charter. The assessment to establish whether refugee status should be afforded should instead focus upon whether the applicant is credible. That means considering whether his account is plausible and coherent.
87. The Charter provides the overarching context for interpreting both the Qualification Directive and the Procedure Directive in relation to all of the grounds of persecution contained in Article 10 of the former. It may be that different fundamental rights are invoked in relation to different grounds. For example the right to freedom of thought, conscience and religion (Article 10 of the Charter) might logically be invoked in relation to an application for refugee status based on grounds of religious persecution. (85) None the less, in all applications for refugee status the assessment of facts and circumstances is subject to the requirements laid down in Article 4 of the Qualification Directive and in the Procedures Directive. That view is consistent with the principle of non-discrimination enshrined in Article 3 of the Geneva Convention and Article 21 of the Charter. The gaps that I have identified in the legislation would be equally relevant to applications based upon any ground of persecution listed in Article 10 of the Qualification Directive in so far as the applicant’s credibility is the key issue where there is little or no corroborative evidence.
88. I have already pointed out that the referring court’s question is put in abstract terms and that the Court has very little material before it regarding the circumstances of the individual cases in the main proceedings. For the sake of good order, I offer the following comments on them.
89. A has indicated to the competent national authorities his willingness to submit to an examination to prove his homosexual orientation. In my view, however, it would be inconsistent with Articles 3 and 7 of the Charter for those authorities to agree to such a procedure in order to establish his sexual orientation.
90. The Minister refused B’s application because (i) he found B’s account to be inadequate and (ii) B did not meet expectations as to how a homosexual man from a Muslim family and a country where homosexuality is not accepted might react in becoming aware that he himself is homosexual. In so far as the Minister’s decision was based upon (i), it will be for the relevant national court as sole judge of fact to determine whether B was given an adequate opportunity to provide all relevant information in accordance with Article 4 of the Qualification Directive. In order to ensure that B’s right to good administration is respected, it is important for the national authorities to ensure that B has been informed of the points where elements to substantiate his account were deemed lacking and that he has been afforded the opportunity to address such concerns. However, in relation to (ii), it would be inconsistent with Article 4(3)(c) of the directive for the national authorities to base their decision solely on the stereotypical assumption that because B is Muslim and from a country where homosexuality is not accepted his account cannot be credible without a statement giving details about his feelings and how he came to terms with his homosexuality.
91. The Minister refused C’s claim as he found: (i) it was inconsistent; (ii) it lacked information in as much as C did not give a clear account of his own realisation that he was homosexual; and (iii) that a film depicting C performing a sexual act with a man did not establish C’s homosexual orientation. In relation to points (i) and (ii), in so far as the Minister’s decision is based upon those points, it will be for the relevant national court as sole judge of fact to determine whether C was given an adequate opportunity to provide all relevant information in accordance with Article 4 of the Qualification Directive. In order to ensure that C’s right to good administration is respected it is important for the national authorities to ensure that C has been informed of the points where elements to substantiate his account were deemed lacking and that he has been afforded the opportunity to address such concerns. As regards (iii), I consider that it would be contrary to Articles 3 and 7 of the Charter for the competent authorities to accept evidence from C of a film showing him engaging in a sexual act.