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CJEU - Joined cases C‑148/13 to C‑150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014
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Date of Decision:
02-12-2014
Citation:
A (C‑148/13), B (C‑149/13), C (C‑150/13)
Court Name:
Grand Chamber; Court of Justice of the European Union
Keywords:
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1A (2)
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 78
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 13
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 10
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 16
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 17
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 7
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 10
Headnote:
When verifying an asylum seeker’s claimed sexual orientation, Member States’ freedom of action is constrained by the Charter of Fundamental Rights.
The evaluation of an asylum application should not be based on stereotyped notions and should include an individualised assessment taking into account the applicant’s personal circumstances, vulnerability in particular.
Not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility.
Facts:
Three third country nationals had applied for asylum claiming that they feared persecution on account of their homosexuality. In all three cases the Staatssecretaris and later the Rechtbank’s-Gravenhage rejected the applications, surmising that the individuals’ statements concerning their homosexuality were vague, implausible and lacked credibility. On appeal the Dutch Raad van State had doubts as to whether, in light of the Charter, certain limitations were placed on national authorities when verifying the sexual orientation of an applicant. In this manner the Raad van State decided to stay the proceedings and to refer the following question to the Court of Justice:
- What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?
By decision of the Court of 19 April 2013, cases C‑148/13 to C‑150/13 were joined for the purposes of the written and oral procedure and of the judgment.
Decision & Reasoning:
Firstly, the Court notes that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of the Directive 2004/83 (the Qualification Directive) and the content thereof were adopted to guide the competent authorities of the Member States in the application of that Convention on the basis of common concepts and criteria. It highlights that Directive 2004/83 must, therefore, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU as well as the Charter.
Rejecting the submission by the applicants that assessments of sexual orientation should be based solely on the applicants’ declarations, the CJEU note that Article 4 of Directive 2004/83 read in light of the Charter places certain limits on authorities when assessing the facts and circumstances concerning the applicants declared sexual orientation. Notably, the Court highlights that whilst Article 4 of the Qualification Directive is applicable to all claims of international protection, it is necessary that the competent authorities modify their methods of assessing evidence so as to comply with requirements of the Charter [54]. This is particularly pertinent for the two stage assessment procedure advocated in C‑277/11 whereby after the establishment of factual circumstances a legal appraisal of the evidence must take place [55].
With regards to the present proceedings the Court surmises that the assessment of asylum applications “solely on the basis of stereotyped notions” does not satisfy the individualised assessment needed to comply with Article 4(3) of the QD and Article 13(3(a) of the Procedures Directive. However, the Court when referring to “stereotyped notions” seems only to include questions relating to the applicants knowledge of local NGOs advocating LGBTI rights, thus restricting itself solely to the facts of the referred cases. Additionally, the Court rules out decisions that are based uniquely on stereotyped notions, confirming that “questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purpose of assessment” [62].
The Court continues its assessment by noting that questions by authorities relating to the details of the applicant’s sexual practices are contrary to the respect for private and family life enshrined in the Charter and that the submission of tests or evidence to demonstrate homosexuality have no probative value and would infringe Article 1 (human dignity) of the Charter [64-65]. In this manner the Court states that the conclusion would still be the same if the applicant voluntarily produced such evidence. The CJEU states that this may also lead to other applicant’s feeling pressurised to submit similar evidence [66].
Lastly, the Court holds that not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility. In this regard, the Court notes that whilst the QD refers to the applicant submitting all elements as soon as possible to substantiate his/her claim, it is incumbent on the national authorities to cooperate with the applicant when assessing the relevant elements of the case and to have regard to the sensitive nature of the claim [56]. In this manner the applicant’s reluctance to detail aspects of his/her personal life should not be taken as a lack of credibility [69]. Instead, national authorities are obliged, in light of the Qualification and Procedures Directives, to carry out an individualised assessment taking into account the applicant’s personal circumstances and to conduct the interview in view of the applicant’s vulnerability [70].
Outcome:
Article 4(3)(c) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.
Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.
Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution.
Observations/Comments:
In her opinion delivered on 17 July 2014 Advocate General Sharpston noted the consensus between parties that ‘there is no objective method of verifying an averred sexual orientation’ [36] and argued that ‘[a]n applicant’s definition of his own sexual orientation ... should, at the very least, form the starting point of the assessment process’ [40].
The AG identified verification practices that would be inconsistent with Articles 3 (right to integrity) and 7 (right to private life) of the EU Fundamental Rights Charter, even if consented to by the applicant: (1) medical tests purporting to determine the applicant’s sexual orientation; (2) the pseudo-medical test of phallometry (assessing the response of the applicant to viewing pornography); (3) explicit questions concerning an applicant’s sexual activities and proclivities; (4) requiring applicants to ‘produce evidence such as films or photographs or to request them to perform sexual acts in order to demonstrate their sexual orientation’ [66].
For each of the above methods, the AG also doubted the probative value in distinguishing between genuine and bogus claims. Relying on ‘stereotypical notions’ [68] of sexual orientation is inconsistent with Article 4(3)(c) of the Qualification Directive, which requires the competent authorities to take account the individual and personal circumstances of the applicant in question. Instead, ‘[t]he assessment to establish whether refugee status should be afforded should ... focus upon whether the applicant is credible. That means considering whether his account is plausible and coherent’ [69].
The AG Sharpston’s recommended the following approach to credibility assessment: ‘the asylum procedure is one of cooperation, rather than a trial. It is neither for the authorities to disprove the asylum seeker’s claim nor for him to prove it but rather for both parties to work towards a common goal.’ She considered that, ‘in order to respect the principle that every person has a right to be heard before a decision is taken, which adversely affects them, asylum seekers should have an opportunity to address any specific issue concerning the credibility of their account which arises during the course of the procedure before a final decision is made’.
Case comment:
An important analysis by S Chelvan highlighted that with this judgment the CJEU clarified to Europe’s asylum determination authorities what they are prohibited from doing, but did not give specific guidance on how they can prove an asylum claim, based on sexual orientation.
Interventions
The observations were submitted by a number of Member States: Belgium, the Czech Republic; Germany; Greece; France as well as the European Commission and UNHCR.
UNHCR’s written submissions could be accessed here:
http://www.refworld.org/type,AMICUS,,NLD,5215e58b4,0.html
UNHCR’s oral observations could be accessed here: http://www.refworld.org/type,AMICUS,,NLD,5315d2984,0.html
Case Law Cited:
CJEU - C-604/12, H. N. v Minister for Justice, Equality and Law Reform and Others (UP)
CJEU - C-277/11, MM (UP)
Attachment(s):
Other sources cited:
Authentic Language:
Dutch
Country of preliminary reference:
Netherlands
National / Other Legislative Provisions:
Netherlands - Article 31 of the Law on Foreign Nationals 2000 (Vreemdelingenwet 2000)
Netherlands - Article 3.111 of the Decree on Foreign Nationals 2000 (Vreemdelingenbesluit 2000)
Netherlands - Article 3.35 of the Regulation on Foreign Nationals 2000 (Voorschrift Vreemdelingen 2000)
