EU Court’s ruling on asylum claims based on sexual orientation

Dec 2, 2014 | News

Today, the Court of Justice of the European Union (CJEU) delivered its judgment in the joint cases of A, B and C v. Staatssecretaris van Veiligheid en Justitie.

It affirms the need for national authorities to undertake individualized credibility assessments in asylum cases involving claims of persecution based on sexual orientation.

The ruling concerned a request for a preliminary ruling from the Netherlands, through its Council of State, to the CJEU.

The cases arose from three applications for asylum in the Netherlands by three men claiming a well-founded fear of persecution in their countries of origin based on their alleged same-sex sexual orientation.

The Dutch authorities rejected each asylum claim on the basis that each applicant had failed to prove his same-sex sexual orientation.

The Council of State asked the CJEU what limits the EU Qualification Directive and the Charter of Fundamental Rights, and in particular article 3 (right to the integrity of the person) and article 7 (respect for private and family life), impose on the method of assessing the credibility of a declared sexual orientation, and whether these limits are different from those applying to the assessment of credibility in asylum claims based on other grounds.

Interpreting the Qualification Directive in light of articles 3 and 7 of the Charter, as well as article 1, i.e. human dignity, the Court held that EU law does impose certain requirements on refugee status determination authorities.

The ICJ welcomes the Court’s determination that the competent domestic authorities must ensure that any credibility assessment method must allow for an individualized consideration of each applicant’s claim, having regard to its specific features, and that it is the duty of the State to cooperate with the applicant in the context of the assessment of all the relevant elements of her or his claim.

The ICJ welcomes a number of other aspects of the ruling, including:

• The emphasis on the Netherland’s need to comply with the Charter of Fundamental Rights;
• The fact that the Court firmly came down against seemingly intrusive and lewd questioning of an applicant’s sexual practices and proclivities, which it held to be contrary to respect for private and family life; and,
• The Court’s awareness of the particular challenges relating to the disclosure of one’s sexuality. The court noted that an applicant may be understandably reticent in revealing intimate aspects of his or her life and that therefore late disclosure of same-sex sexual orientation should not necessarily undermine the applicant’s credibility.

See also the ICJ’s commentary on the CJEU judgment in X, Y and Z v. Minister voor Immigratie en Asiel.