Blog post by Gursimran Bakshi, a penultimate student at the National University of Study and Research in Law, Ranchi.
On 25 January, 2018 the European Court of Justice (ECJ) in the case of F v Bevándorlási és Állampolgársági Hivatal (C-473/16) declared that Hungary violated the right to dignity and perpetuated torture and degrading treatment under Article 1 and Article 3 of the European Convention on Human Rights (ECHR) by subjecting a gay man ‘F’ to Projective Personality Tests (PPTs). The consent of F to be subjected to such tests was ‘forced consent’ as his life was fully dependent on that assessment.
These tests namely draw-a-person in the rain, Rorschach and Szondi were conducted by medical experts on refugees with Sexual Orientation and Gender Identity Claims of Asylum (SOGICA) based on well-founded fear of persecution as a part of the asylum assessment procedure by the Immigration Office of Hungary. PPTs are used to determine the personality of an individual including his mental and psychological condition. The legality of these tests was challenged on the ground that it was considered as conclusive evidence to decide an asylum application.
But this is not the first time a European state has resorted to such medical examinations to determine SOGICA. The Czech Republic introduced a similar test in 2010 known as Penile Plethysmography (PPG) or ‘arousal tests on a gay man’. These tests measure the changes in the genital blood flow in response to sexually explicit videos (pornographic) and audio stimuli using electrode attached to the genitalia (reproduction organ) of male or female for the purpose of asylum assessment.
Such state-practices are concerning on two-levels. In terms of legality, these examinations have been considered as discriminatory and in violation to the right of dignity, prohibition of torture and degrading treatment, and privacy under ECHR when forcibly compelled on a refugee. Moreover, Article 18 of the Yogyakarta Principles on Sexual Orientation and Gender Identity (SOGI) prohibit the use of medical examinations and personality tests to determine SOGI.
Secondly, these practices are fundamentally against the Common European Asylum System (CEAS) that puts an obligation on member-states to ensure that an asylum application is examined to uniform standards so that, no matter where an applicant applies, the outcome is similar. But such uniform standard is hardly maintained where states are free do opt for their own methods of Refugee Status Determination (RSD). Although the RSD needs to be in consonance with the basic guidelines of the UNHCR guidelines, the requirement of checks and balance is hardly complied with.
Asylum officers resorting to these measures tend to encourage other states to deter asylum-seekers on similar grounds. Moreover, these practices create a hostile environment for LGBTI+ asylum-seekers who are anyway subjected to double marginality for being a member of the LGBTI+ group and an asylum-seeker.
What is a SOGICA?
Volker Turk (the director of International Protection at UNHCR, Geneva) observed that the jurisprudence on the possibility of refugee status on SOGICA started developing in 1980, and it has continued to evolve since then.
The development was late due to the lack of explicit protection of SOGICA under the 1951 Convention Relating on the Status of Refugees and the 1967 Protocol (Refugee Convention). Because of the explicit ground of protection, most of the asylum-seekers were not even aware that persecution on the basics of homosexuality could be a ground of asylum.
Around 1999, the need of gender-sensitive interpretation of the refugee definition was recognized in General Conclusion No.87 (L) by the United Nations High Commissioner for Refugees (UNHCR) under its advisory mandate. In 2002, UNHCR recognized SOGICA within gender-based persecution (GBP). GBP require three important elements of the refugee definition in Article 1(A). These are membership of a Particular Social Group (PSG), well-founded fear of persecution, and lack of state complicity to protection.
European Union (EU) under its binding Qualification Directive 2011/95 /EU (Directive) recognizes SOGICA as GBP with the membership of a PSG in Article 1(A) of the Refugee Convention and thus, allows the right to asylum under Article 18 of EU Charter.
The assessment of an asylum application depends on certain factors. Article 4 of the Directive allows authorities to adopt methods to assess the asylum application through individual circumstances, facts, and other evidence including information on applicant’s country of origin (COI).
However, when determining the credibility of an SOGICA one is faced with various issues. First, the factors on which membership of a PSG depends is subjective.
According to Canada (Attorney-General) v. Ward , these are innate and unchangeable characteristic of a group, the association of which is voluntary, and is unalterable due to its historical permanence. The same has been reiterated in Article 2(d) of the Directive.
Secondly, an SOGICA is subjected to the right to self-determination as enshrined under Article 3 of the Yogyakarta Principles and International Protection No.9. This is due to the fact that the determinants of SOGI can only be perceived and not proved by evidence. In Amanfi v. John Ashcroft, the court held that asylum can be granted on the perceived SOGI as the evidence on something so innate to one’s personality cannot be furnished.
However, in a situation where the right to self-determination is not recognised, national authorities often look from the stereotypical notions of how one’s personality should be perceived. For instance, a gay asylum-seeker’s application was rejected because he appeared “too girlish”.
Moreover, a survey by Sussex University observed that persecution stories are frequently declared as unreliable. Asylum-seekers are suggested to return back to their COI and live discreetly that is without disclosing their sexuality. This is also termed as internal relocation alternative.
But it is argued that the right to self-determination cannot be compromised and it prohibits the non-disclosure of identity to prevent persecution. The court in Germany v. Y and Z observed that an individual does not have to ‘remain in a closet’ as it is a fundamental part of one’s personal identity. Moreover, the internal relocation as cannot be invoked in SOGICA where criminalization, lack of right to self-determination, and serious discrimination remains attached to one’s life as per International Protection No.4.
Systematic failures of Hungary in protecting the rights of LGBTI+ asylum-seekers
Unfortunately, Hungary is amongst the few countries like Croatia, Bulgaria, Romania, and Slovakia where not even 50% of the people believe that homosexual persons should have the same human rights as that of heterosexuals.
In 2015, the state proclaimed emergency over the refugee crisis. It built ‘transit zones’ which were in reality are ‘no rights zones’ with razor wires fences around the southern borders with Serbia and Croatia to restrict the movement of refugees. Human rights groups have named these transit zones as detention camps where members of UNHCR were not permitted to enter. This move has been criticised by UN. Hungary finally in 2020 decided to close these transit zones after the ECJ passed an order declaring that detaining asylum-seekers indefinitely is illegal and they cannot be detained for more than 28 days.
There have been reports of refugees being starved to death in the detention camps by authorities until the European Court of Human Rights (ECtHR) intervened. Hungarian Helsinki Committee in their report has observed that the deliberate starvation measure as ‘unprecedented human rights violation of 21st century in Europe.’
Credibility assessment in SOGICA
ECJ in three instances have clarified various aspects of SOGICA. In X, Y and Z v Minister voor Immigratie en Asiel, the court observed that SOGICA falls with the category of membership of a PSG and hence, is a valid ground of asylum claim. Further, in A, B, C v. Netherland, the court was faced with an issue of how the credibility assessment is to made for an SOGICA considering the SOGI claims are subjected to self-determination. The court in this case held the use of medical tests and expert reports as illegal.
Coming to our recent case of C-473/6, the court was again faced with the dilemma of whether the EU law completely precludes the medical examinations for the purpose of SOGICA. Let’s understand the different nuances with the analysis of F’s case.
F, a citizen of Nigeria sought asylum in Hungary as he was subjected to persecution in his COI for identifying as gay. Homosexuality is subjected to capital punishment in Nigeria. During this interview, he told the assessment office his persecution story which was not fundamentally contradictory to the information available to the authorities on his COI.
Despite this, the authorities rejected his asylum application on the basics of the PPTs the result of which were inconclusive. The court first referred to the Directive 2011/95/EU to point out the position of SOGICA in EU.
According to the Directive:
‘It is equally necessary to introduce a common concept of the persecution ground “membership of a PSG”. For the purposes of defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration in so far as they are related to the applicant’s well-founded fear of persecution.’
Although the directive is clear, it uses terms like ‘immutable characteristics’ and ‘social perception’ in defining PSG. This is different from the open-ended definition in the Guidelines on International Protection on PSG by UNHCR. Other aspects are what have been explained above in the article.
Secondly, the burden of proof is one of the most complex criteria when it comes to determination of an SOGICA. As stated above, Article 4 of the Directive allows different methods of assessment. However, Article 4.5 allow national authorities to look out for certain points in case the applicant is unable to furnish evidence. These are:
- The genuine efforts made by the applicant to substantiate his application
- All relevant elements have been submitted and a satisfactory explanation is given for the lack of elements, if any.
- The statement of the applicant must not run against the general and specific information available in applicant’s case including the information on the country of his origin.
- The applicant has applied for the international protection at the earliest, unless there was a genuine reason to not apply on time.
- The general credibility of the application is established
Understanding Article 4.5 of the Directive in determining a SOGICA means the authorities have to consider the persecution story of an LGBTI asylum-seeker, information on COI, and the right to self-identification. The UNHCR Guidelines on International Protection No.9 recognises the right to self-identification for those who do not have witness statements, photographs, or other documentary evidences (para. 36).
Still, questions leaked from a confidential government documents of a detention center in the United Kingdom such as ‘When x was penetrating, did you have an erection?’ and ‘Did you put your Penis into X’s backside?’ are the kind of LGBTI asylum-seekers have to suffer in the personal interview.
In Morales v. Gonzales, the court clearly establishes the non-requirement of expert reports because SOGI are fundamental aspects of human dignity that are either innate or immutable or that a person should not be required to give up or conceal..
Hence, the court in F’s case held that PPTs are inconsistent with the rights under ECHR for being a discriminatory and intrusive practice. It should not be taken as a conclusive evidence as it exposes the applicants to refoulement (Article 33 of the Refugee Convention) as observed in Jalloh v. Germany.
Are the Dublin Regulations to be blamed for the fallout of SOGICA?
Another issue of concern here is personal interview. When an asylum-seeker enters EU, his/her application is determined through Dublin Regulations/Procedure adopted in 2003. The Dublin regulations determine the responsibility sharing of member-states of EU and were meant to ensure that multiple applications for asylum are not submitted by the applicant.
But the system is conjured with its own issues. Asylum-seekers expect that the EU follows a common system of standards, however, that’s not the case. Each EU state has its own domestic legislation on the asylum procedure including RSD that creates genuine confusion for an asylum-seeker. The changes brought in Dublin regulations in 2008 require member-states to conduct personal interviews of the applicant under their RSD procedure after it has been conducted systematically in the Dublin procedure.
Personal interviews conducted in a systematic manner should be based on common guidelines. It is expected that the interviews are designed to be gender neutral and the interviewer must have the relevant information on the applicant COI such as the status on recognition of homosexuality under its criminal code, state’s perpetrated violence, the assistance of an NGO working with homosexuals in the country.
However, in practice this is not always the case. Often personal biasness of an interviewer may hamper his decision-making. For instance, if the interviewer has radical views on homosexuality then it would not be wrong to say that his decision-making will be hampered if the applicant discloses his sexuality.
One of the Nigerian refugees in his interview was asked, ‘You don’t look gay, you look like any other man, why should I believe that you are?’
Suggestions and conclusions
F’s case highlights many complex issues concerning SOGICA. Some of which are the lack of clarification/guidelines on the use of medical examination/expert reports as evidence in the assessment procedure. Resort to prejudice notion of sexuality which especially hampers the chance of asylum if an applicant chooses to come out for the first time.
Most states in EU do not maintain any statistical data on asylum claims on the ground of SOGI except Belgium. In 2013, around 20% of the applicants were based on SOGICA ground in Belgium. Further, Norway maintains manual records of the applicants based on SOGI. It also prepares country specific memos on the practices followed in the country of origin such as Nigeria, Ethiopia, and Iran. But this is not enough to get a clear picture on the percentage of SOGICA in EU. These are pertinent issues as it decides the life and death of an asylum-seeker.
These suggestions are as follows:
- SOGICA should be given due importance in the national legislations of states. A good example is Sweden which recognises SOGICA under its Swedish Alien Act of 2005.
- Discriminatory tests/practices that intent to violate the right to privacy of an asylum-seeker should be avoided. It should be noted that persons fleeing persecution are already in a vulnerable condition, and their free consent to such practices are under deemed pressure.
- Nuances related to SOGICA should be known to asylum officers as a part of their training on gender-based persecution. Example of states like Belgium, Cyprus, Sweden, and United Kingdom should be considered here.
- The EU must take measures to bring clarity in the Dublin regulations as it is the first stage where personal interviews are performed.
- NGOs and civil rights organizations should play a crucial role in assisting the asylum-seekers in their application procedure, and they must collect information on a member-states’ approach and applicant experience in the process.
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