European Court of Justice Bans Homosexuality Tests for Asylum Seekers

Asylum seekers in European Union countries will no longer be subject to psychological tests to prove their homosexuality, according to a decision by the European Court of Justice (ECJ) on 25 January 2018. In F v. Bevándorlási és Állampolgársági Hivatal, the ECJ declared the illegality of the use of psychological reports based on projective personality tests in determining sexual orientation of asylum seekers.

The asylum applicant, a Nigerian man identified as F, sought asylum in Hungary, arguing that he has a well-founded fear of persecution because of his homosexuality. The Bevándorlási és Állampolgársági Hivatal (Office for Immigration and Citizenship of Hungary, hereinafter “Immigration Office”) rejected his asylum application. While the Immigration Office concluded that F’s application was not “fundamentally contradictory,” the Immigration Office found that F’s statement about his homosexuality “lacked credibility” based on one psychologist’s report (para. 22). F appealed this decision to a Hungarian court, and the case was eventually referred to the ECJ.

The “expert report” at issue in the case was produced by a psychologist after an investigative examination, which involved several basic projective personality tests, including the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests. Upon completing the tests, the psychologist concluded that F’s homosexuality could not be confirmed.

The ECJ ruled that EU law does not prohibit authorities or courts from ordering the production of an expert report to help assess the facts and circumstances relative to an asylum seeker’s claim, but only if the production of the report is consistent with human rights law and the report is not relied upon solely or conclusively. The Court further held that EU law precludes the preparation and use of a psychological expert’s report based on projective personality tests to determine an individual’s sexual orientation when assessing an asylum claim sought by the individual on the ground of sexual orientation.

The Use of Experts’ Reports in General

The standard for making determinations about sexual orientation is one of overall coherence and plausibility: The Court held that, when assessing an applicant’s sexual orientation as the ground for asylum, the authorities should look at the applicant’s statements and other related “facts and circumstances.” Statements are overall coherent and plausible if they are not contradictory to any specific or general information relevant to his/her case. In addressing the standard, the ECJ particularly noted that authorities should look at the applicant’s general credibility, and it did not require confirmation of every single aspect of the applicant’s statements (para. 33).

An expert’s report can be used to assist with determinations, but only if (1) the report is not the only factor considered in reaching a decision, and (2) the process of the report’s production meets international standards, including human rights law. The ECJ concluded that, when the authority’s decision on the application is being contested by the applicant before a court, the law does not categorically prohibit the responsible authority or the court from ordering the production of an expert’s report, to assist with assessing the “facts and circumstances” related to the asylum claim on the basis of sexual orientation. However, the ECJ emphasized that the procedures and methods for producing such an expert report must be consistent with EU law, including the Charter of Fundamental Rights of the European Union (“the Charter”) and in particular its protections for the rights to privacy and family life in Article 7.

An expert’s report cannot be the only factor considered in reaching a determination. That said, the ECJ clarified that, even with an expert’s report produced in a manner consistent with the legal requirements, a court reviewing the matter cannot base its decision solely on the report. A court also cannot, a fortiori, consider the report binding or conclusive while reviewing the applicant’s appeal from the authority’s decision (para. 45).

The Use of Psychological Experts’ Reports

The preparation and use of a psychological expert’s report must be subject to the same scrutiny: Moving on to psychological experts’ reports, as the one disputed in the case F, the ECJ held that the procedures for recourse to such a psychological report assessing an individual’s sexual orientation must be consistent with human rights law, including the right to respect for privacy and family life, enshrined in Article 7 of the Charter.

The ECJ noted that the production and use of a psychological expert’s report inherently amounts to an interference with an individual’s right to private life, because of the nature of the human aspects being examined in this context, namely sexuality and sexual orientation of an individual. The Court stated that an applicant is placed under de facto pressure when asked to consent to such a psychological exam, because the applicant knows that such requests are “closely linked to the decision” the authority will make regarding his/her asylum status. The decision on the asylum status often concerns the applicant’s fear of persecution, sometimes even life and death. In such context, an applicant’s consent is “not necessarily given freely”, thus constituting an interference with privacy (paras. 52-3).

But an “interference” does not necessarily entail a violation of Article 7 of the Charter. Limitations on the exercise of the rights are allowed under certain circumstances, but only if such limitations are necessary — meaning that they serve the general interest recognized by the European Union or work to protect the rights and freedoms of others (para. 55) — and that the interest at stake is proportionate to the interference (Article 52 of the Charter).

Applying this standard, the ECJ ruled that the seriousness and nature of the interference posed by the use of psychological examination based on personality projective tests in the context of ascertaining sexual orientation fails to meet the principle of proportionality:

• First, the characteristic being examined in this context, namely sexuality, concerns the essential identity and very personal and intimate aspect of a person’s life;
• Second, while a psychological report might offer additional information on the circumstances, in no way can it offer a definitive answer concerning an individual’s sexual orientation or an individual’s internal fear of persecution;
• Third, asylum applications are to be determined by examining the “consistency and plausibility” of the applicants’ statements as a general matter, and not every single aspect of the statements needs to be confirmed decisively with evidence (para. 68).

Interestingly, the ECJ did not engage in a further discussion regarding what categories are or are not considered aspects of life that are too personal or intimate in evaluating the “interference” with one’s private life. The Court essentially adopted a balancing test — weighing between the intrusive nature of the practice and the objectives such practice serve, based on the totality of facts and circumstances.

In addition to human rights standards, the ECJ noted that the methods and principles of producing a psychological report should also meet the standards accepted by the international scientific community. But the Court remained sensitive to its subsidiary role in fact-finding — noting whether the methods are sufficiently reliable on scientific grounds is a factual assessment issue and should be reserved to national courts (para. 58). Nevertheless, the ECJ found it sufficient to conclude, based on the analysis of the proportionality principle, that such practice is not consistent with EU law.

Impact Upon EU States & Global Refugee Crisis

In a similar case in 2014, the ECJ had previously struck down a Dutch court’s decision rejecting several asylum seekers’ applications because they failed to “prove” their homosexuality. The ECJ said that asking questions on sexual practices or asking for evidence of homosexual acts when determining asylum seekers’ sexual orientation infringed their rights to privacy and family life. One difference is that in the 2014 Dutch case, the asylum seeker voluntarily offered evidence of his homosexuality, while in F the sexuality test was imposed upon the applicant.

The January 2018 decision reaffirmed the ECJ’s overall position on this issue, calling for respect for human rights and dignity in the process of evaluating asylum applications. This decision is legally binding and will have a profound impact upon the 28 European Union states, in light of the increasing number of refugees in Europe seeking asylum on the basis of their sexual orientation.

Principle 18 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity prohibits forced psychological tests for the purpose of ascertaining sexual orientation or gender identity. In F, the ECJ actually considered it necessary to take account of Principle 18, referring to the state practice of France and the Netherlands. As a declaratory document, the Yogyakarta Principles has no legal binding effect in itself, though it may be interpreted as partly reflective of customary international law as well as States’ legal obligations under binding human rights treaties.

Pursuant to the ECJ decision, the Administrative and Labour Court (Szeged, Hungary) has repealed the Immigration Office’s decision that allowed the use of personality projective tests to determine the sexual orientation of F. The Hungarian court ordered the re-examination of F’s asylum application but it remained unclear how the Immigration Office will reform its regular procedures on assessing applicants’ sexuality. On the other hand, the Hungarian State Secretary in a recent statement expressed concern over the potential impact on the number of asylum seekers at the Hungarian border after this decision, and he stated that the reliability of such tests should be left to psychologists, not judges. Hungary is not alone in using “gay tests” on determining asylum seekers’ sexual orientation. It is worth monitoring how the EU states will implement the ECJ’s decision, as well as how the international community in general will ensure the respect for human rights while addressing future asylum claims on the basis of sexuality related grounds.