(CN) - European Union member states cannot ask intrusive questions or require evidence of homosexual activity to verify a request for asylum based on sexual orientation, an adviser to Europe's highest court held Thursday.
The Geneva Convention and European law allow third-country nationals with a reasonable fear of persecution in their home country to request asylum in the EU. Last year, the EU high court extended those protections to three gay African men who feared reprisals, including fines and long prison sentences.
More recently, men identified as A, B and C requested asylum in the Netherlands because they feared harassment in their own countries. Dutch authorities rejected their applications, and one minister expressed doubts as to whether the men are actually gay or simply claiming to be so for asylum purposes.
The men appealed to the Dutch Council of State, which noted that verifying sexual orientation is more complex than other grounds for persecution. Since EU law offers no guidance on how far member states can go to question an asylum seeker's sexual orientation, the Dutch court asked the European Court of Justice for limits on conducting such credibility assessments.
In her preliminary opinion for the Luxembourg-based high court, Advocate General Eleanor Sharpston acknowledged Thursday that there is no medical way to determine sexual orientation.
Since personal autonomy and the right to privacy are key elements in both the EU constitution and in how a person defines his or her sexuality, these factors must form the starting point for the examination of A, B and C's applications, Sharpston found.
While the adviser conceded the need for such examinations, she emphasized the need for upholding the applicants' personal dignity and integrity.
"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 the EU constitution," Sharpston wrote. "It would also fail the proportionality requirement 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 the EU constitution."
The adviser also cast doubts on the value of phallometry - recording how much a male is stimulated by pornography - in determining sexual orientation.
"Phallometry is a particularly dubious way of verifying homosexual orientation," Sharpston wrote. "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."
Even when an applicant gives consent to undergo such testing, Sharpston said, answers could be fabricated and the tests themselves are based on "stereotypical notions that there are correct and incorrect answers." Instead, any assessment of an asylum seeker's credibility should be based on whether his story is plausible and coherent, Sharpston said.
"Finally, I suggest that it would be both desirable and prudent to ensure that all three applicants have had an opportunity to address any specific issues concerning their credibility during the course of the administrative stage (or the first instance procedure), before a final decision is made by the determining authorities; and that the official making the determination either (preferably) has seen their demeanor when delivering their respective accounts or at the very least has access to information indicating how they comported themselves during the interview process," Sharpston wrote (parentheses in original).
The adviser's opinion is not binding on the Court of Justice, which has begun its own deliberations in the case.
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