CJEU: Judgment in case C-473/16 F, 25 January 2018

Thursday, January 25, 2018

On 25 January 2018, the Court of Justice of the European Union ruled in case C-473/16 F. The main proceedings concern a Nigerian national whose asylum application was rejected at first instance by the Hungarian authorities on the basis of an expert’s report prepared by a psychologist indicating that his homosexuality could not be confirmed via different tests. Seized on appeal, the Administrative and Labour Court of Szeged decided to stay the proceedings and to ask the CJEU’s guidance regarding  the possibility to rely on psychologists’ expert opinions for assessing the credibility of asylum seekers fearing persecution on account of their sexual orientation.

The CJEU ruled that expert reports enabling the national authorities to better assess an application for international protection must be consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, such as the right to respect for human dignity and the right to respect for private and family life. Accordingly, certain forms of expert reports may prove useful for the assessment of the facts and circumstances set out in the application and may be prepared without prejudicing the fundamental rights of the asylum seeker. However, a determining authority cannot base its decision solely on the conclusions of an expert’s report and cannot be bound by the report’s conclusion.

Moreover, even if the performance of such tests is formally conditional upon the consent of the person concerned, that consent is not necessarily given freely, since it is imposed under the pressure of the circumstances in which an asylum seeker finds himself. In those circumstances, recourse to a psychologist’s expert report in order to determine the sexual orientation of the asylum seeker constitutes an interference with that person’s right to respect for his private life that is disproportionate in relation to the objective it pursues. In this respect, the Court observed that such interference is particularly serious because it is intended to give an insight into the most intimate aspects of the asylum seeker’s life.

Finally, the CJEU concluded 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, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Medical Reports/Medico-legal Reports
Sexual orientation