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Friday, July 12, 2024 | Back issues
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Gay EU Asylum Seekers Avert Probing Questions

(CN) - European Union member states cannot ask probing questions or demand that gay refugees prove their homosexuality as a condition for asylum, the EU's highest court ruled Tuesday.

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 acknowledged that verifying sexual orientation is more complex than other grounds for prosecution. 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.

Following the opinion of an adviser issued this past summer, the European Court of Justice held Tuesday that immigration authorities have a duty to investigate whether an asylum-seeker faces the threat of persecution in his home country because of his sexuality - but not by asking deeply personal questions about the applicant's sexual practices.

"While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not, nevertheless, satisfy the requirements of the provisions of EU immigration law, in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned," the Luxembourg-based court wrote.

"Therefore, the inability of the applicant for asylum to answer such questions cannot, in itself, constitute sufficient grounds for concluding that the applicant lacks credibility, inasmuch as such an approach would be contrary to the requirements of EU law," the 8-page opinion stated.

Asking a refugee to detail his sexual practices as part of an asylum interview runs contrary to the rights to privacy and family life as enshrined in the EU constitution. And forcing an applicant to undergo "tests" to determine his sexual orientation or to produce filmed evidence of homosexual acts would infringe on the most fundamental right to human dignity, the court added.

"With 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 concluded.

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