Psychological homosexuality tests are inadmissible for asylum seekers

Most intimate questions bring only unreliable result
Asylum seekers may not be subjected to a psychological test to determine their sexual orientation. Such a test implies "a disproportionate interference with the asylum seeker's private life", the European Court of Justice (ECJ) ruled in Luxembourg on Thursday, 25 January 2018 (Ref .: C-473/16). As regards greening, the ECJ pointed to the low reliability of previous test procedures. This is in disproportion to the necessarily very intimate questions.

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After that, a Nigerian has a good chance of asylum in Hungary. He had stated that Nigeria was threatened with persecution because of his homosexuality. The Hungarian authorities rated his statements as consistent and credible. However, the homosexual orientation was not confirmed by a psychological report. Therefore, the authorities turned down the asylum application.

The Nigerian complained. The Hungarian courts then asked the ECJ to what extent such reports are even admissible.

The Luxembourg judges now emphasized that, of course, expert opinions can be used to review an asylum application. However, the nature and procedure of such reports should not conflict with the EU Charter of Fundamental Rights. In particular, human dignity and the right to respect for private and family life should be upheld.

According to the Luxembourg judgment, the proportionality of expert interventions therefore also presupposes that the opinion is 'based on sufficiently reliable methods'. Psychological tests for the determination of the sexual orientation are according to investigations of the European Union commission and statement of the governments of the Netherlands and France however at least so far little reliable.

At the same time, such tests concern "the most intimate areas of the asylum seeker's life". Therefore, there is a "mismatch" between the interference with the private life and the goal of a settlement under asylum law. The tests are therefore disproportionate and incompatible with the requirements of the EU Charter of Fundamental Rights, the ECJ ruled.

That the tests in Hungary require consent does not change that. For asylum seekers are under considerable pressure to give their consent.

The Luxembourg judges also believe that such tests are not required. If an asylum authority has "competent personnel", this could also check the statements of an asylum seeker on the basis of their conclusiveness and plausibility. mwo / fle