“TESTING” THE SEXUALITY OF ASYLUM SEEKERS ENTERING THE EU – ADVOCATE GENERAL OF THE ECJ CONDEMNS “HUMILIATING” CREDIBILITY ASSESSMENTS

On the 17th July 2014, the Advocate General of the Court of Justice of the European Union gave her opinion on the upcoming joint case called C-148/13, C-149/13 and C-150/13. 

The applicants (A, B and C) came to the Netherlands seeking asylum as feared persecution because of their homosexuality. All of the applicants were denied asylum as they had not passed “Credibility Assessments” and thus had not “proved” their sexuality. The three men’s case have now reached the Court of Justice of the European Union.

Before the judges deliberate on a case, an Advocate General delivers a non-binding opinion. Ms Eleanor V.E. Sharpton is acting as Advocate General in this case. AG Sharpton’s opinion can be followed, ignored or to some extent taken into account by the judges when they determine the case. 

In this case, AG Sharpton was highly critical of tests on sexuality imposed on asylum seekers. Her opinion is that medical, psychiatric or psychological “expert opinions” in order to access an asylum seekers’ sexuality are not allowed under the asylum seekers’ Qualification Directive. This is because they breach the European Charter of Fundamental Human Rights.

Some “Credibility Tests” imposed by Member States that are considered by AG Sharpton include:

1) Upsetting and humiliating interrogations being forced on asylum seekers, including questions based on stereotypical assumptions of sexuality 

2) Demanding participation in “pseudo-scientific” medical tests such as phallometric measurements of arousal

3) Authorities seeking “proof” of sexual activity such as recordings of sexual activity

She notes that sexuality is something that is just inherently unmeasurable and personal thus these “Credibility Tests” breach refugees’ rights under the EU Charter to human dignity, right to consent to medical procedures, right to physical and mental integrity and the right to a private life, which includes the right to keep very personal information secret and the right to chose one’s sexuality.

AG Sharpton urges that refugees should not be subjected to a “trial” to prove their sexuality. Instead, AG Sharpton wants “co-operation” between authorities and asylum seekers. The first step in accessing a person’s sexuality is to simply ask them what sexuality they think they are.

Ergo, the authorities should look for what is not credible about the facts of situation rather than what is stereotypically “credible” for a LGBT person.

If AG Sharpton’s reasoning is followed by the Court, it is likely to have a positive and reforming impact on credibility assessments of LGBT asylum-seekers. It will also reinforce to Member States that not every person’s sexuality fits into the same narrative.

Brophy Solicitorsa