The recent opinion of the advocate general for the Court of Justice concludes that one’s sexual orientation must not be considered a medical condition and is exclusively the right of the individual to determine. Member states may consider the credibility of this claim, but they are not permitted to require an applicant to prove their sexual orientation through any means that would violate their privacy or personal dignity, such as medical tests or giving details of their sexual history.

The right to define your identity

Three homosexual men applied for temporary residence permits in the Netherlands, based on well-founded fears of persecution in their respective countries of origin. Dutch authorities rejected all three applications, concluding that their claims of being homosexual were not credible.

The rejections of their asylum applications were appealed to the Dutch Council of State, which referred to the European Court of Justice the question whether EU law limits the actions of member states when assessing requests for asylum made by an applicant who fears persecution in their country of origin because of their sexual orientation.

Advocate General Eleanor Sharpston’s opinion of July 17 stated that homosexuality is no longer considered to be a medical or psychological condition and individuals have the right to define their own identity, including sexual orientation. A person’s sexuality is a highly complex issue that is integral to personal identity and the sphere of private life protected by the Charter of Fundamental Rights.

Therefore, an applicant’s declaration of their sexual orientation should constitute the starting point of an examination of that issue, said the advocate general. Although member states are entitled to examine an applicant’s stated sexual orientation, the applicant cannot be required to support requests for refugee status in a manner that undermines their dignity or personal integrity.

Credibility of the applicant

Methods that are degrading or inconsistent with human dignity would violate the right to respect for physical and mental integrity and the right to respect for private and family life of asylum seekers. Moreover, the probative value of such evidence is doubtful because it can be fabricated if needed and cannot distinguish the genuine applicant from the bogus. Since it is not possible to determine an individual’s sexual orientation definitively, practices that seek to do so should play no part in the assessment process.

The assessment to establish whether refugee status should be afforded should instead focus upon whether the applicant is credible, the opinion stated. That means considering whether their account is plausible and coherent. Member states must ensure that decisions by the determining authority on applications for asylum are taken only after an appropriate examination, and applicants must be given an opportunity to participate in a personal interview before the determining authority takes a decision. The essence of the asylum procedure is that both parties work toward a common goal, and it is therefore important that the determining official has an opportunity to observe the applicant giving their account, or at the very least has access to a full report as to his demeanor during the course of the examination.