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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