CJEU - Case C-473/16, F

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Date of Decision: 
25-01-2018
Citation: 
Case C-473/16
Court Name: 
Court of Justice of the European Union (Third Chamber)
Headnote: 

National authorities can order experts’ reports with the purpose of assisting in the assessment of the facts and circumstances relating to a declared sexual orientation of an applicant, provided that the procedures for these reports are consistent with fundamental rights. However, the examining authority, courts or tribunal must not base their decision solely on the conclusions of an expert’s report and are not bound by these conclusions when assessing the applicant’s statements relating to his or her sexual orientation.

Moreover, national authorities are prohibited from preparing and using, in order to assess the veracity of a claim made by an applicant concerning his sexual orientation, of a psychologist’s expert report the purpose of which is, on the basis of a projective personality test, to provide an indication of the sexual orientation of the applicant. 

Facts: 

The main proceedings concern F., a Nigerian national who applied for asylum in Hungary in April 2015 claiming that he feared persecution in his country of origin on account of his homosexuality. In October 2015, his application was rejected on the basis of an expert’s report prepared by a psychologist that concluded that it was not possible to confirm the applicant’s sexual orientation. F brought an action before the Administrative and Labour Court of Szeged contending that the psychological tests he had undergone breached his fundamental rights and were of no value for the assessment of his credibility.

The Administrative and Labour Court of Szeged asked the opinion of the Hungarian Institute of Forensic Experts and Investigators, which found the methods used by the report to be appropriate and not to prejudice human dignity. The referring court considered itself bound by the conclusions of the expert’s report, but decided to stay the proceedings and seek the CJEU’s assistance on the matter.

Decision & Reasoning: 

First, the CJEU noted that the statements made by an applicant relating to his sexual orientation constitute merely the starting point in the process of assessment of the facts and circumstances envisaged under Article 4 of the recast Qualification Directive (QD). It recalled that, as explicitly recognised by the CJEU in X, Y and Z, sexual orientation is a characteristic which is capable of proving an applicant’s membership of a particular social group, and it further stated that it is immaterial whether the applicant actually possess the characteristic linked to the membership of a particular social group which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution. Therefore, it is not always necessary, the CJEU ruled, to assess the credibility of an applicant’s sexual orientation in the context of the assessment of his asylum claim.

However, national authorities are not prohibited from using expert reports in the context of the process of assessment of the facts and circumstances, as long as this is consistent with other relevant EU law provisions, and in particular with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union. These reports can be useful, inter alia, to allow for the collection of more comprehensive information about the situation of persons sharing a specific sexual orientation in the third country from which the applicant originates.

Reaffirming that the examination of an asylum claim must include an individual assessment of the application and take into account all relevant facts, statements and information on the country of origin, the CJEU ruled that the determining authority cannot base its decision solely on the conclusions of an expert’s report and must not be bound by the conclusions of such reports when assessing the statements made by the applicant in relation to his or her sexual orientation.

Secondly, the CJEU ruled that, even if the performance of psychological tests on which an expert’s report, such as that at issue in the main proceedings, is based is formally conditional upon the consent of the person concerned, it must be considered that the consent is not necessarily given freely, being de facto imposed under the pressure of the circumstances in which applicants for international protection find themselves. The suitability of an expert’s report may be accepted only if it is based on sufficiently reliable methods and principles in the light of the standards recognised by the international scientific community, which is for the national court’s jurisdiction to ascertain. In any event, the impact of psychological tests such as that at issue in the main proceedings on the applicant’s private life seems disproportionate to the aim pursued, since the seriousness of the interference with the right to privacy it constitutes cannot be regarded as proportionate to the benefit that it may possibly represent for the assessment of the facts and circumstances set out in Article 4 of the recast QD. The CJEU took into account the Yogyakarta Principles, namely Principle 18, which states, inter alia, that no person may be forced to undergo any form of psychological test on account of his sexual orientation or gender identity.

Thirdly, the CJEU ruled that such an expert’s report cannot be considered essential for the purpose of confirming the statements of an applicant for international protection relating to his or her sexual orientation in order to adjudicate on an application based on a fear of persecution on grounds of that orientation. The Court recalled that Member States must ensure that the person who conducts the interview is competent to take account of the personal circumstances surrounding the application, including an applicant’s sexual orientation. The personnel involved must also have appropriate skills to assess applications based on a fear of persecution on grounds of sexual orientation.

Finally, the CJEU found that Article 4 of the recast QD, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, such as that at issue in the main proceedings, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant. 

Outcome: 

1. Article 4 of Directive 2011/95/EC of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that it does not preclude the authority responsible for examining applications for international protection, or, where an action has been brought against a decision of that authority, the courts or tribunals seised, from ordering that an expert’s report be obtained in the context of the assessment of the facts and circumstances relating to the declared sexual orientation of an applicant, provided that the procedures for such a report are consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, that that authority and those courts or tribunals do not base their decision solely on the conclusions of the expert’s report and that they are not bound by those conclusions when assessing the applicant’s statements relating to his sexual orientation.

2. Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of Fundamental Rights, must be interpreted as precluding the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, such as that at issue in the main proceedings, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant.

Observations/Comments: 

Advocate General Wahl, in his Opinion, took a somewhat softer approach to the issue. For instance, he did not find problematic that the ‘applicant’s refusal [to consent to the tests] may have certain consequences that the applicant himself has to bear’.  He was also of the opinion that Member States should be given a wider margin of appreciation to decide on the probative value of psychological tests such as those in the main proceedings.

Relevant articles:

Nuno Ferreira and Denise Venturi, Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal, November 2017

Attachment(s): 
Authentic Language: 
English
Country of preliminary reference: 
Hungary