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Towards the Effective Protection of LGBTI Persons Deprived of Liberty
the basis that each applicant had failed to prove his same-sex sexual
orientation. According to the Court, the assessment must examine the
applicant’s individual situation and should not be based on stereotyped
notions. Questions concerning details of an applicant’s sexual practices are to be considered contrary to fundamental rights. The Court also
found that the applicant’s credibility could not be questioned “merely
because he did not rely on his declared sexual orientation on the first
occasion he was given to set out the ground for persecution”.
The Court’s ruling ultimately aims at putting an end to humiliating and
degrading practices like submitting applicants to “tests” in order to demonstrate their sexual orientation, or even demanding the production
of “evidence” such as films of their intimate acts, because such evidence
by “its nature infringe[s] human dignity.”
Case law (2)
Court of Justice of the European Union, F v. Bevandorlasi
és Allampolgarsagi Hivatal, 2018
Asked by a Hungarian administrative and labour court whether the authorities could assess an asylum seeker’s statements about his sexual
orientation on the basis of a psychologist’s expert report, the Court of
Justice of the European Union held that recourse to such a report, for the
purpose of assessing the veracity of a claim made by an asylum seeker
about his sexual orientation, would not be consistent with the 2011/95/
EU Directive of the European Parliament and of the Council, read in light
of the Charter of Fundamental Rights of the European Union.
In this case, in which a Nigerian national claimed to be fleeing persecution on the grounds of his homosexuality, the Court found that recourse
to a expert psychological report for such purposes constitutes an interference with the individual’s right to respect for his private life (Art. 7 of
the Charter, “Respect for private and family life”). Importantly, the Court
noted that consent for such psychological tests is not necessarily given
freely, because it is imposed under the pressure of the circumstances in
which an asylum seeker finds himself.
Furthermore, the Court observed that such interference is particularly
serious because it is intended to give an insight into the most intimate aspect of the asylum seeker’s life. A psychologist’s expert report seeking to determine an asylum seeker’s sexual orientation was deemed
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