Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal


Hungary in the spotlight again
Hungary has been in the spotlight
for all the wrong reasons for quite a while. From legislation
targeting
 ‘foreign-operating universities’ to border
walls
 to keep refugees from entering Hungarian territory, the populist
right-wing government of Viktor Orban has been sparking outrage in many sectors
of Hungarian society, and the European institutions. The most recent reason for
alarm again relates to migration and refugees, an area of widespread
criticism
 of Hungarian authorities. Building on extremely hostile
policies towards refugees that have been admonished by both the Court
of Justice of the European Union
 (CJEU) and the European
Court of Human Rights
 (ECtHR), Hungarian authorities now intend to
resort to highly dubious means to assess the applications  of individuals
claiming asylum on grounds related to their sexual orientation. It was already
public knowledge that this category of claimants was subjected to poor
treatment
 by the Hungarian authorities, but recent events suggest that
the authorities have reached  a new low.
The most recent incident came to
the public knowledge through a reference for a preliminary ruling to the CJEU
by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in
the Case C‑473/16, F v Bevándorlási és
Menekültügyi Hivatal
 (the ‘F
case’). The case concerns a Nigerian national who had submitted an application
for international protection in Hungary based on his sexual orientation, and
dealt with the use of 
projective
personality tests 
and other means for ‘proving’ sexuality. The
Hungarian domestic court posed two questions to the CJEU, essentially asking
whether the application of Article 4 of the ‘qualification Directive’ on the
definition of refugee status (Council
Directive 2004/83/EC
), in the light of the right to dignity in Article 1 of
the Charter
of Fundamental Rights of the European Union
 (EU Charter), precludes
forensic psychologists’ expert opinions based on projective personality tests
from being used in asylum adjudication relating to LGBTI (lesbian, gay,
bisexual, trans and intersex) claimants. Should that possibility be precluded,
the referring Court then asks whether the asylum authorities are prevented from
examining by expert methods the truthfulness of these claims.
The questions thus refer to the
interpretation of particular provisions of Council
Directive 2004/83/EC
. Yet, the material facts under analysis in the case
referred to the CJEU occurred in April 2015, so (as the national court
acknowledged) the law that applies to the facts and that needs to be
interpreted in this case is the successor to Council Directive 2004/83/EC
– Directive
2011/95/EU
 of 13 December 2011 (the recast Qualification Directive) –
which Member States had to apply by 21 December 2013. (Note that this recast
Directive could be replaced by a Regulation in future, as discussed here).
Following the hearing on 13 July
2017, Advocate General Wahl delivered his Opinion on
5 October 2017. The focus of our analysis will be on this Opinion, but first it
is important to recall the case law the CJEU has already produced on sexual
orientation and gender identity (SOGI) claims of asylum. Indeed, this is the
third case the CJEU has dealt with on SOGI-related asylum claims, and we expect
this third case to better reflect international standards than the previous
two, particularly in the light of the EU
Charter
 and UNHCR
Guideline No. 9
.
The CJEU dealt with Sexual
Orientation and Gender Identity (SOGI)
asylum claims for the first time in the joined cases C-199/12
to C-201/12, X, Y and Z v. Minister voor
Immigratie en Asiel
. Despite some shortcomings,
 this decision expressly recognised that persecution on the basis of
sexual orientation can give rise to refugee status under the ‘particular social
group’ ground of the 1951 Refugee
Convention
(which is reproduced in the qualification Directive). It was
however one year after X, Y and Z that
the CJEU was called to provide guidance on evidentiary standards in SOGI asylum
claims in another case concerning three gay men seeking asylum on the basis of
their sexual orientation, who were not deemed credible (Joined
Cases C-148/13 to C-150/13, A, B and C v
Staatssecretaris van Veiligheid en Justitie
, 2 December 2014
, discussed
here).
The CJEU was asked whether the Charter,
in particular Articles 3 (right to the integrity of the person) and 7 (respect
for private and family life), as well as Article 4 recast
Qualification Directive
, which sets out some general rules for assessing
asylum claims, posed certain limits on national authorities when verifying
an asylum seeker’s sexual orientation.
This judgment is important as it
establishes some core principles on credibility and evidence assessment;
however, the Court could have offered more positive guidance in that regard. At
the outset, the CJEU found that although the applicants’ mere declarations are not
sufficient per se to
establish their sexual orientation, authorities are bound by certain limits
when assessing a SOGI asylum application. Notably, such assessment must be
conducted on an individual basis and must not be based merely on stereotypes,
which is a mistake too
often committed by decision-makers in SOGI cases. Nonetheless, the CJEU did not
completely overrule the use of stereotyped notions, but considered them a useful
element in the overall assessment. As for evidence, the Court precluded the
recourse to detailed questions on sexual practices and to ‘tests’ to establish
applicants’ sexual orientation in light of Articles 1 (human dignity) and 7 of
the EU
Charter
. It also banned the production in evidence of films showing the
applicant’s engagement in same-sex activities. Finally, the CJEU also affirmed
that late disclosure of an applicant’s sexual orientation as the main reason
for the asylum claim, does not per se impinge on the applicant’s
credibility.
In a nutshell, the Court gave a
‘black list’ of what authorities cannot do, but it did
not provide
 any clear guidelines of what, they should do to assess
SOGI asylum claims. Notably, the Court made it clear that there is no room for
evidence that, by its nature, infringes human dignity and which does not have
any probative value. This prohibition, the Court argued, cannot be circumvented
even if it is the applicant’s choice to submit such evidence, as this would
incite other applicants to do the same, creating a de facto requirement. While the Court’s judgement in X, Y and Z fully establishes the
possibility of recognising SOGI applicants as refugees, the Court’s findings
in A, B and C constitute
the backdrop against which the F case will ultimately be decided.
‘Tell me what do you see… is it gay enough?’
The F case has put back on the CJEU’s agenda the evidentiary
standards to be applied in SOGI asylum cases. Several contentious practices
have been criticised throughout the years in this context, from the use
of stereotyped
questioning
 to authorities resorting to practices of no medical or
psychological value such as phallometry,
whereby reactions of gay male asylum claimants to watching pornography were
supposed to indicate their sexual preferences. Despite such practices having
been highly criticised both by the UNHCR and NGOs,
the F case makes it clear
that they persist in different ways.
The precise tests in question in
this case are the ‘Draw-a-Person-in-the-Rain’ test, Rorschach
test
 and Szondi
test
. Such projective, drawing tests attempt to elicit information that
‘patients’ may struggle or prefer not to verbalise otherwise, helping
psychologists to form an opinion about individuals’ personality, emotional
well-being and mental health. These tools are generally
contentious
, even if they go on being used by psychologists routinely in
most countries. Their use to determine one’s sexuality is fundamentally
abhorrent, thus simply not considered by the relevant literature or reputable
professionals.
AG Wahl recognises how
scientifically discredited such tests are in relation to sexual orientation
matters, citing an American Psychological Association 2009
report
. The question of whether one is gay or not is, itself, poorly
framed, as one’s sexual orientation can lie somewhere along a complex continuum and
change over time. Attempts to determine one’s sexuality objectively have
invariably been held to be ‘junk
science
’, for relying on baseless stereotypes. As Weber has
rightly stated in the context of the recent debates around using Artificial Intelligence (AI) to determine one’s
sexuality
 on the basis of one’s face, such pseudo-scientific efforts
are attempts to impose coherence on individuals and fail to recognise that the
‘homosexual’ and the ‘heterosexual’ are historically constructed figures.
Crucially, Weber worries
that such type of AI ‘junk science’ will be used in the West in the context of
SOGI asylum.
The tests in question in
the F case assume that
individuals with a particular sexual orientation have certain personality
traits, which not only is patently false, but also runs against the prohibition
on stereotypical decision-making established by A, B and C. At the oral hearing in this case, the Hungarian
authorities tried to justify the use of these tests with the A, B and C judgment. The argument
ran as follows: as the judgment precluded questions about claimants’ sexual
orientation, the authorities had to resort to tests. The problem with this
assertion is that it is based on a false premise: the judgment in A, B and C did not prevent
authorities from asking any questions about claimants’ sexual orientation, but
simply precluded certain questions
and practices
 that clearly breach the dignity of the individual.
Although both the Commission and
the Hungarian authorities suggested in the oral hearing that these tests should
be allowed because they only constitute an element of the overall assessment of
the asylum claim and may lead to the confirmation of the credibility of the
applicant, the exact opposite happened in this case. Indeed, the test was used
by the Hungarian authorities to discredit the applicant’s account and deny him
international protection (par. 10-11 of the Opinion). In other words, a ‘junk
science’ approach to decision-making was used to prevent the claimant from
being recognised as refugee. Unfortunately, AG Wahl’s Opinion fell far short
from precluding such tests.
The Advocate General’s Opinion
In his Opinion,
AG Wahl rightly frames this case as one that is very clearly about using psychologists’
expert opinions in assessing the credibility of claimants. The provision at the
centre of this debate – as framed by the referring questions – is Article 4(5)
of the recast Qualification Directive, which discharges applicants from the
need to prove their asylum claims through documentary or other evidence when a
range of conditions is fulfilled, including the applicants having made a
genuine effort to substantiate their claims, having offered a satisfactory
explanation for the lack of further evidence, and having provided an overall
credible account. Based on this provision, the applicant used the oral hearing
to highlight that there was no need for any further tests in his case, because
there were no inconsistencies. The Hungarian authorities counter-argued that
there were contradictions in the applicant’s statement (without specifying
exactly which contradictions), so it was necessary to probe its veracity.
Another EU law instrument turns
out to play a more important role in this Opinion, namely Directive
2013/32/EU
 (the recast Asylum Procedures Directive). Indeed, the
Qualification Directive establishes the general rules to follow in terms of
evidentiary standards in asylum cases, in particular Article 4, but it is
Article 10(3) of the Asylum Procedures Directive that determines that Member
States’ asylum authorities should reach individual, objective and impartial
decisions, and that they have the possibility to seek expert advice to assist
in their decision-making. On this basis, AG Wahl proceeds by considering the
benefits of involving psychologists in the adjudication process (para. 33-34),
but is also very clear about the impossibility of a psychologist determining an
applicant’s sexual orientation based on personality tests (par. 36).
Nonetheless, AG Wahl goes on to analyse under which circumstances such tests
can nevertheless be admitted, thus effectively accepting them.
AG Wahl tries to soften the blow
of admitting the tests in question by stating that consent is required, and
that the tests need to be carried out in a way that is compatible with the
rights to dignity and to respect for private and family life (Articles 1 and 7
of the EU
Charter
 and Article 8 of the European Convention
on Human Rights
). Although AG Wahl expressly acknowledges the difficulties
in withholding consent in the context of an asylum claim, he does not seem to
find it problematic that – in his own words and in a likely violation of the
applicant’s rights under EU law – the ‘applicant’s refusal [to consent to the
tests] may have certain consequences that the applicant himself has to bear’
(par. 45). In other words, refusing a test with no probative value that could
violate applicants’ rights may lead to the refusal of their asylum claim – a
highly disproportional and unfair outcome, we would argue.
The Opinion goes
on to further qualify the admissibility of such tests by questioning the
probative value of examinations based on dubious science or used in the wrong
context (par. 48). And yet, AG Wahl also offers domestic courts a wide margin
of appreciation in this regard, by stating that it is not for the CJEU to
assess such tests. Having seen how the tests in question had been used in relation
to a gay male applicant to deny him asylum, it is patently unwise to offer
domestic authorities such leeway in asylum cases relating to sexual
orientation. The fact that AG Wahl refers to the right to an effective remedy
(Article 47 of the EU Charter) and to the freedom of domestic courts to depart
from the ‘findings of the expert’ (par. 50) may be an implicit suggestion that
the domestic court in this case should differ from the experts’ opinions and
feel free to grant asylum to the applicant. Yet, that is clearly insufficient
to appease the legitimate concerns of asylum seekers in similar situations,
since they will be at the mercy of (administrative and judicial) authorities
who may happily offer probative value to ‘junk science’ detrimental to their
asylum claims.
AG Wahl’s Opinion accepting
in principle the use of projective personality tests in cases involving asylum
claims on the basis of sexual orientation is deeply disconcerting. On the one
hand, he clearly doubts the usefulness or appropriateness of such tests (even
referring to Principle 18 of the Yogyakarta Principles protecting
individuals from medical abuses based on sexual orientation or gender
identity), and he alerts domestic courts to the possibility of disregarding
them even when they are carried out. On the other hand, he does recommend that
such tests should be allowed (even if with a range of supposedly helpful
caveats), thus abandoning claimants to the mercy of potentially unsympathetic
domestic authorities. Equally disconcerting is the fact that nowhere in the
AG’s Opinion is there a reference to the principle of the benefit of the doubt:
although it may not be strictly necessary to refer to this principle in this
context, its absence is striking for leaving out of the equation an essential
element of the evidentiary standards in refugee law (para. 203-204 of the UNHCR Handbook and Guidelines on
Procedures and Criteria for Determining Refugee Status
). It is submitted
that the focus of the Opinion should have been on the line of questioning that
should have been used, such as per UNHCR Guideline No. 9.
he Opinion in this case could
have much more simply asserted, as AG Sharpston did in her Opinion
in A, B and C
 (largely
followed by the CJEU), that ‘medical [or psychological, we would add] tests
cannot be used for the purpose of establishing an applicant’s credibility, as
they infringe Articles 3 and 7 of the Charter’ (par. 61), and that applicants’
consent is both essentially irrelevant and questionable (par. 67). Instead, AG
Wahl offers poor guidance to the CJEU.
‘Projecting’ this Opinion onto the CJEU’s Judgment
In the F case, the CJEU will be called upon to interpret EU law with
regard to the evidentiary assessment of SOGI asylum cases in a more targeted
way than it did in A, B and C.
Predicting a Court’s verdict is something one should try to avoid; however, the
relevance of the issues at stake in the F case allows us to contemplate some potential scenarios.
First, the CJEU has the option to build on and expand its approach in A, B and C and therefore construe
its whole reasoning on the basis of respect for the EU Charter, particularly
Article 1. In this sense, psychological personality tests to evaluate sexual
orientation would be precluded, as the prohibition set forth by the CJEU
in A, B and C is arguably
not limited to physical examination, but extends more generally to all ‘“tests”
with a view to establishing […] homosexuality’.
Secondly, should the CJEU follow
the AG’s opinion, it would need to carefully construe how it is possible to
ensure that psychologists’ expert opinions are truly limited to an evaluation
on the general credibility, and not just a loophole to pave the way to
unreliable psychological assessments of sexual orientation.
Further, the Court should make
sure that any such expert opinions on credibility are not used as ‘lie
detectors’ based on preconceived assumptions – otherwise we could well resort
to Harry Potter’s
veritaserum
 for all asylum claims. Moreover, the CJEU would need to
explain how genuine consent can be sought, since the option of taking tests
that are not compulsory but seen as useful for credibility assessment would put
pressure on other applicants to take the tests, thus undermining the validity
of any consent obtained.
Finally, should the CJEU agree
with the use of projective personality tests in SOGI asylum claims, it would
compromise the progressive steps previously taken in this area – a slippery
slope we strongly hope the Court will not enter. The CJEU has already spelled
out, in A, B and C, some of the crucial elements for deciding the present
case; now, it is a matter of entrenching those elements, so as not to leave
room for ambiguity or for the use of evidentiary means that are in breach of
asylum seekers’ dignity and fundamental rights.
The authors wish to thank the
useful comments provided by Dr Carmelo Danisi and Dr Moira Dustin on
previous drafts of this text.
Barnard & Peers: chapter 9, chapter 26

Photo credit: Wikimedia Commons



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