On 2nd December 2014, the Court of Justice of the European Union handed down its eagerly anticipated judgement in A, B and C, marking a pivotal moment for LGBT (Lesbian, gay, bisexual and transgender) asylum claimants in the European Union. The case involved the refusal of three asylum claims on the grounds that their sexual orientation had not been proven. Whilst the Court confirmed that an applicant’s declaration of his sexual orientation alone is insufficient and that a State is entitled to carry out assessments to verify it, the Court set out a number of limitations, firmly placing the applicant’s dignity and right to respect for private and family life at the centre of any said assessment.
So what limitations did the Court set and why are they significant?
Firstly, the Court concluded that assessments based solely on stereotyped notions concerning homosexuals do not allow state authorities to take account of the individual situation and personal circumstances of the asylum applicant concerned as required by the EU Asylum Directives (paras. 60-62). Whilst this guidance is welcome, the Court could have gone further by prohibiting reliance on stereotyped notions altogether in order to afford LGBT applicants greater protection, particularly against discrimination.
The second and third practices singled out by the Court for criticism were state officials asking questions about the sexual practices of the applicant (para. 64) and allowing the applicant to complete “tests” to confirm his sexuality including producing images or videos of sexual acts (paras. 65-66). In the case of the former, it is considered a violation of the right to respect for private and family life (Art. 7 CFREU); in the case of the latter, the Luxembourg Court stated that “such evidence would of its nature infringe human dignity” (para 65; see Art. 1 CFREU); fundamental rights which are also protected by the European Convention on Human Rights (see Art. 8) and international human rights law (see Art. 17 ICCPR66; Art. 1 UDHR48). Although there is no explicit reference to dignity in the European Convention on Human Rights, the respect for human dignity (coupled with human freedom) has been acknowledged by the Strasbourg Court as “the very essence” of the Convention (para. 44, SW v UK 1995).
Indeed, the disturbing trend amongst several European states of using assessments which focus on the sexual behaviour of an applicant as opposed to recognising sexual orientation as a fundamental part of one’s personal identity is well documented. The practice of ‘sexodiagnostic examination’ (which involved an interview with a sexologist and ‘phallometric testing’) in the Czech Republic between 2008 and 2010 is probably the most commonly cited example (Śledzińska-Simon & Śmiszek 2013; UNHCR 2011).
However, subjecting LGBT asylum applicants to assessments which may be incompatible with their right not to be subjected to degrading treatment under European (see Art. 3 ECHR50, Art. 4 CFREU) and International Law (see Art.5 UDHR48; Art. 7 ICCPR66; Art 1(1) CAT84) is not only a European issue, but a global one and has been the subject of concern for the United Nations and its various committees. For instance, in its Opinion No.25/2009 on Egypt, the UN-mandated Working Group on Arbitrary Detention heavily criticised the practice of forcing men to undergo anal examinations to determine their sexual orientation, describing it as a violation of their bodily integrity. Similarly, the UN Committee against Torture and the Special Rapporteur on torture have condemned “invasive” examinations, describing them as “intrusive and degrading” (p.26, OHCHR 2012).
The fourth and final significant guideline laid down by the EU Court is that decision makers should not draw negative credibility findings based solely on the fact that the applicant did not disclose his sexual orientation at the outset (paras. 67-71). This is particularly important given the reticence many applicants may have in revealing intimidate aspects of their lives.
Whilst this ruling is highly significant in many respects as we have seen, a recurring criticism of it has been that the Luxembourg Court does not offer or endorse any alternatives methods of assessment for determining an applicant’s sexual orientation. This short article therefore concludes by briefly considering the DSSH model (‘Difference, Stigma, Shame and Harm’), developed by leading UK barrister in the field of LGBT rights – S Chelvan.
Having been endorsed by the UNHCR in their 2012 International Protection Guidelines (para. 62) and with training on the model having been delivered in numerous countries worldwide, the DSSH model is quickly becoming the preferred assessment method for practitioners and decision-makers in Europe and beyond.
The principle behind the model is to provide specific ‘trigger questions’ which facilitate the applicant’s ability to disclose his/her narrative and enable further investigation of sexual orientation. It places the emphasis on “the narrative” as opposed to how the narrative is disclosed as firmly advocated by S Chelvan (2014). It also reaffirms the principle that sexual orientation is an expression of personal identity therefore avoiding reducing sexual orientation to sexual conduct.
The ‘D’ refers to ‘Difference’ and to a LGBT individual’s rejection or inability to conform to the heterosexual narrative or the gender roles lived out around them, thus making him/her acutely aware of their ‘difference’. In this case, a decision maker may open an interview with a question such as “When did you first realise you were different?”
The second letter ‘S’ of the model represents ‘Stigma’ and relates to the recognition that family members, friends or the “majority” disapprove of the applicant’s conduct and/or identity. This may be reinforced by cultural and religious mores and state laws. Closely associated with ‘Stigma’ are feelings of ‘Shame’, represented by the third letter of the model; a feeling usually associated with a sense of ‘otherness’ and self-rejection.
The final letter ‘H’ relates to ‘Harm’, harm that is directed towards LGTB individuals by State or non-State actors because of their perceived “difference”. It is important to stress here that is it essential that a form of ‘harm’ exists for an asylum or international protection claim to exist.
For more detailed information about S Chelvan’s DSSH model, please see.
Sources:
- Chelvan, S (2014). ‘From ABC to DSSH: How to prove that you are a gay refugee?’ Free Movement Blog.
- Foot, Helen (2014), ‘EU court bans credibility ‘tests’ for gay refugees’. Free Movement Blog.
- ILGA Europa (2014) ‘Sexual orientation and refugee status – CJEU steps in to protect the rights of asylum seekers.
- OHCHR (2012), ‘Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law.
- Śledzińska-Simon & Śmiszek (2013), ‘LGBTI asylum claims – the Central and Eastern European perspective’, Forced Migration Review.
- UNHCR (2011), ‘Comments on the Practice of Phallometry in the Czech Republic to Determine the Credibility of Asylum Claims based on Persecution due to Sexual Orientation’
- UNHCR (2012), ‘GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1’
