Psychological homosexuality tests for asylum seekers not permitted

The most intimate questions only lead to unreliable results
Asylum seekers must not be subjected to a psychological test to determine their sexual orientation. Such a test means "a disproportionate interference in the private life of the asylum seeker", ruled on Thursday, January 25, 2018, the European Court of Justice (ECJ) in Luxembourg (file number: C-473/16). For greening, the ECJ referred to the low reliability of previous test procedures. This is disproportionate to the very intimate questions that are necessary.

Afterwards, a Nigerian has good chances of asylum in Hungary. He had said he was facing persecution for his homosexuality in Nigeria. The Hungarian authorities rated his statements as contradictory and credible. However, the homosexual orientation was not confirmed by a psychological report. The authorities therefore rejected the asylum application.

The Nigerian sued. The Hungarian courts then asked the CJEU to what extent such opinions are even permissible.

The Luxembourg judges now emphasized that expert opinions can of course be used to review an asylum application. However, the nature and procedure of such reports should not contradict the EU Charter of Fundamental Rights. In particular, human dignity and the right to respect for private and family life must be preserved.

According to the Luxembourg judgment, the proportionality of expert interventions therefore also presupposes that the expert opinion is "based on sufficiently reliable methods". However, according to investigations by the EU Commission and statements by the governments of the Netherlands and France, psychological tests to determine sexual orientation have so far not been reliable.

At the same time, such tests affect “the most intimate areas of the asylum seeker's life”. There is therefore a “mismatch” between the interference in private life and the goal of clarifying asylum law. The tests are therefore disproportionate and not compatible with the requirements of the EU Charter of Fundamental Rights, the ECJ ruled.

The fact that the tests in Hungary require consent does not change anything. Because asylum seekers are under considerable pressure to give their consent.

The Luxembourg judges are convinced that such tests are not necessary. If an asylum authority has "competent staff", this can also check the statements of an asylum seeker based on their conclusiveness and plausibility. mwo / fle

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