Dutch Court asks Court of Justice to rule on the limits of verification of the sexual orientation of asylum seekers

On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.

On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.

The three problems of verifying sexual orientation

This preliminary reference reflects the increasing awareness of the distinct challenges that refugees persecuted on account of their sexual orientation face vis-à-vis other groups.[1] For example, last year the Dutch Council of State already asked whether a decision to deny an application with the argument that an asylum seeker may avoid persecution in their home country by remaining discreet about their sexual orientation is contrary to EU law or not. In other words: whether EU law prohibits that asylum seekers are send back into the closet by Member States. In the same judgement, it also asked whether lesbian, gay or bi asylum seekers can be returned to countries where same sex sexual activities are a criminal offense. This reference is still pending before the Court. The Council of State is now asking  the Court to deal with another sensitive topic: what methods are allowed to verify the sexual orientation of an asylum seeker?

Verification of sexual orientation entails a number of problematic aspects on three levels, namely: the individual case, the conceptual and the societal level.

Intimate Questioning and “The Normal Homosexual”

Turning first to the individual cases. Research into the way in which sexual orientation in individual cases is verified in Australia, New Zealand, the United Kingdom, Canada and the Netherlands has shown that it may involve inappropriate questioning and is subject to a certain degree of prejudice and bias.[2]

An example of inappropriate questioning is illustrated in a Dutch case in which an applicant was asked to give details of sexual intercourse and the subsequent finding that the applicant had lied about his sexual orientation because he did not tell what position he took in bed. Such questioning is clearly contrary to international standards and thankfully rare in the Netherlands. The decision was quashed on appeal.

However, other types of prejudice are more common. Questions asked and conclusions inferred from answers indicate that immigration officers tend to compare the statements of applicants to their expectations of what is “normal” for gay, lesbian, bisexual, transgender or intersex people.

Lees verder: http://europeanlawblog.eu/?p=1720


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