A, B, C v. Staatssecretaris van Veiligheid en Justitie concerns whether EU law imposes restrictions on the procedures when a state tries to authenticate the sexual orientation of applicants applying for asylum. A, B and C, third country nationals, lodged applications for asylum in the Netherlands as they feared persecution in their respective countries of origin, in particular relation to their homosexual sexual orientation. A’s and B’s applications were rejected by the Staatssecretaris on the grounds that their stories were vague and not credible. A did not challenge the first refusal and lodged a second application for asylum, which the Staatssecretaris rejected. C did not mention his sexual orientation in his first asylum application, but mentioned it as a ground for asylum in his second application. In support of this application, C also gave the national authorities a video recording of his intimate acts with a person of the same sex. His application got rejected by the Staatssecretaris on the ground that the statements regarding his sexual orientation were not credible. It was considered that C should have mentioned his sexual orientation in the first application and that he had not explained thoroughly how he became aware of his sexual orientation. Moreover, he had not been able to answer questions about Netherlands organisations for the protection of rights of homosexuals. Following the rejection of their asylum applications, A, B and C lodged appeals against the decisions that dismissed their applications before the administrative court (Rechtbank’s-Gravenhage) which ultimately also dismissed their applications. A, B and C again appealed and the Council of State (Raad van State) decided to delay the proceedings and to ask the Court of Justice of the European Union (CJEU) if Article 4 of Directive 2004/83, in the light of the Charter of Fundamental Rights of the European Union (the Charter), should be interpreted as imposing certain restrictions on the national authorities when assessing the facts and circumstances regarding the stated sexual orientation of an applicant for asylum.
Judgment of the CJEU
The CJEU rules that article 4 of Directive 2004/83, article 13 of Directive 2005/85 and Article 1 and 7 of the Charter must be interpreted as precluding several procedures during the assessment of a homosexual applicant who seeks asylum due to fear for persecution on the grounds of his or her sexual orientation. A national authority may not base the assessment on “questions based only on stereotyped notions” without taking the individual situation and personal circumstances into consideration, for example it should not expect the applicant to know of organizations for protection of homosexual’s rights. While interviews are allowed, the authority may not conduct “detailed questioning as to the sexual practices” themselves. The authority may not accept evidence in the form of sexual acts, tests or films of sexual acts as these have questionable value as evidence, infringe the right to human dignity and incite other applicants to provide such evidence risking a de facto requirement for such evidence. Finally, the authority may not find that statements lack credibility solely on the basis that the applicant never declared his or her sexual orientation before (par. 60, 65-66, 72).
It is clear from recitals 3, 16 and 17 in the preamble to Directive 2004/83 that the provisions on the definition and content of refugee status in the Directive that shall guide the Member States’ competent authorities constitute the application of the Geneva Convention relating to the Status of Refugees (par. 45). Article 4 of Directive 2004/83 is the most important article for the judgment as it describes the conditions for the assessment of the circumstances, facts, statements and documentation in an application for international protection. Directive 2004/83 does not have any procedural rules applicable to the assessment of applications for international protection (par. 47), instead Directive 2005/85 contains “minimum standards on procedures in Member States for granting and withdrawing refugee status”, as its name also states. Article 13(3)(a) of Directive 2005/85 requires Member States to ensure that personal interviews are led in a way that personal and general circumstances relevant to the application are taken into account.
Directives 2004/83 and 2005/85 must be interpreted in a way compatible with the rights set forth in the Charter as indicated by recital 10 in the preamble to 2004/83 and recital 8 in the preamble to 2005/85 (par. 11 and 46). The CJEU based its judgment on Articles 1 and 7 of the Charter. Article 1 of the Charter entails the right to respect for human dignity. Article 7 guarantees the right to respect for private and family life. The question referred for a preliminary ruling asked particularly about Articles 3 and 7 of the Charter (par. 43), but instead the Court refer to the right to respect for human dignity in Article 1 and leaves Article 3 out of its reasoning without comments.
As pointed out by Paul Johnsson in his ECHR Sexual Orientation Blog there are conflicting opinions between the CJEU and the European Court of Human Rights (ECtHR). In December 2013 the ECtHR ruled in a different way in a similar case. In M.K.N. v. Sweden (72413/10, 2013) the applicant initially applied for asylum in January 2008 on the ground that he was a Christian and had been kidnapped in August 2006 and received further threats in December the same year. The application was rejected as there were regions in the Iraqi Kurdistan considered safe for Christians and a longer time has passed since the kidnapping and the threats. In his appeal the applicant added that he had also received threats due to a brief homosexual relationship and that his partner had been stoned to death. Regarding the homosexual relationship the ECtHR agreed with the Swedish Migration Court that the applicant had not given a reasonable explanation as to why he did not mention this relationship earlier.
The CJEU on the other hand states that the authority should consider all relevant facts in its investigation. The ruling the CJEU gives in the fourth point in the judgment of A, B, C v. Staatssecretaris (par. 73 in fine) clearly contradicts the ruling of the ECtHR in M.K.N. v. Sweden. While the CJEU states that to consider an applicant not credible solely on the ground that he did not initially reveal his sexual orientation is not compatible with EU law, the ECtHR finds it compatible with the European Convention on Human Rights. If an asylum seeker finds himself in such a situation it is clear which court currently offers the best protection, unless the ECtHR changes its current view on the subject.
A similar case to A, B, C v. Staatssecretaris is X and Others, C-199/12 to C-201/12 from 2013. The three applicants applied for asylum in the Netherlands as they feared persecution in their respective countries of origin because of their sexual orientation (par. 23-24). In the CJEU’s ruling (par. 79) the Directive 2004/83 is interpreted in favour of the applicants. The Court states that homosexuals under certain circumstances must be regarded as forming a specific social group. If imprisonment is a sanction for homosexual acts and is applied in the country of origin this punishment is considered an act of persecution, according to the Court. Moreover, the CJEU states that the national authorities cannot expect the applicant to hide his homosexuality in the country of origin to minimize the risk of persecution (par. 79). These cases could reveal an ongoing trend of interpreting the Directive in a more generous way in similar cases.
by Thomas Johansson, Lisa Nyström and Julia Sandgren