Court of Justice of the European Union judgment on 'gay asylum seekers' will have implication for the European Court of Human Rights

The Grand Chamber of the Court of Justice of the European Union has today issued its judgment in A, B, C v Staatssecretaris van Veiligheid en Justitie. The case concerns whether EU law imposes any limits on the methods by which a state seeks to verify the sexual orientation of applicants applying for asylum.

The judgment of the Court of Justice begins by stating that any declaration by an applicant for asylum about sexual orientation is merely the starting point in the process of assessment of the application and may require confirmation. However, it goes on to say that the methods used and the evidence submitted in support of applications for asylum must be consistent with EU law and, in particular, 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.

In this respect, the Court of Justice sets out four key principles that should be observed by national authorities when assessing asylum claims:

  1. The inability of the applicant for asylum to answer questions about 'stereotyped notions associated with homosexuals' is not in itself a sufficient reason for concluding that the applicant lacks credibility.
  2. Questioning an applicant about sexual practices is contrary to fundamental rights and, in particular, to the right to respect of private and family life.
  3. Submitting applicants to possible ‘tests’ in order to demonstrate their homosexuality, or even the production by those applicants of evidence such as films of their intimate acts, would of its nature infringe human dignity.
  4. Having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, their sexuality, it cannot be concluded that a declared sexuality lacks credibility simply because, due to reticence in revealing an intimate aspects of life, the person did not declare his or her homosexuality at the outset

The relevance to the European Court of Human Rights

The fourth principle established by the Court of Justice, about the inappropriateness of drawing conclusions from a person's reticence in revealing details about their homosexuality, is highly relevant to recent jurisprudence in the European Court of Human Rights on asylum and sexual orientation.

Readers of this blog will remember that in June 2013 I wrote about the judgment in M.K.N. v Sweden in which the applicant, a native of Mosul in Northern Iraq, complained about a refusal for asylum by the Swedish Migration Board and Migration Court.

The applicant, a married man whose wife and two children were living in Syria, had claimed asylum in Sweden. The application was rejected and, on appeal, the applicant gave the following additional information to the authorities: 
'after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife'. 
The Swedish Migration Court rejected the applicant's appeal and, in respect of the information about the homosexual relationship, it stated that 'he had not given a reasonable explanation for his having made this claim so late in the proceedings'. 

The European Court of Human Rights rejected the applicant's complaint under Article 3 of the Convention, stating in respect of the homosexual relationship:
'the applicant did not make this claim until he appealed against the Migration Board’s negative decision on his asylum application, more than one year after his arrival in Sweden. Moreover, no mention of the relationship in question was made in the present proceedings before he replied to the Government’s observations, almost a year and a half after lodging the application to the Court. In this connection, it is noteworthy that, in that application, he stated that there were threats against him emanating from Al-Tawahid and Al-Jihad, but did not even mention the Mujahedin'.
The Court stated that it agreed with the Migration Court that the applicant did not give a reasonable explanation for the delay in making this claim in the domestic proceedings. 

The Court concluded: 
'Having regard to all the circumstances, including the similar delay in the present proceedings, the Court considers that the applicant’s claim concerning the homosexual relationship is not credible'.
In my original post on M.K.N. v Sweden, I expressed astonishment that the Court would so easily accept that the applicant's failure to disclose a homosexual relationship at the outset of his asylum application meant that he was fabricating a claim based on sexual orientation in order to persuade the Swedish authorities to grant him asylum.  

It seemed to me then, as it does now, that it is very easy to understand why a man from a country where there is well documented violence and persecution of homosexuals did not reveal a previous homosexual relationship to the authorities. 

Furthermore, given the social and cultural construction of (homo)sexuality in Europe as well as the Middle East, it seemed highly credible that a man married to a woman would attempt to keep a homosexual relationship secret from his wife with whom he wished to continue a relationship. 

I remain dismayed that the Swedish authorities and the Court were unable to accept that it is socially normative for many individuals in heterosexual relationships to also engage in homosexual sexual relationships and, furthermore, that it is socially normative for men and women to not want to disclose information about homosexual relationships for fear of persecution. 

I remain of the view that the Court's central failure in 
M.K.N. v Sweden was its inability to grasp the reality for many people who engage in homosexual sexual relationships - whether in the Middle East or elsewhere - which is that they are unable to publicly acknowledge this aspect of their lives.

The implications of the judgment of the Court of Justice of the European Union for the European Court of Human Rights

Today's judgment by the Court of Justice will be much discussed by those with a much better knowledge of EU law than me. 

However, from an ECHR point of view the judgment is highly significant and useful because it adopts a much more progressive view than that promulgated by the European Court of Human Rights.

Specifically, in respect of the fourth principle discussed above, the Court of Justice judgment implicitly contests the approach of the European Court of Human Rights in M.K.N. v Sweden. It rejects the idea that the failure to provide an account of, or evidence relating to, homosexuality at the outset of an asylum claim can be taken as evidence of falsehood.

If such a principle had been applied in M.K.N. v Sweden it could have underpinned a judgment that recognised why it is highly understandable that a man who had engaged in homosexual acts in a country where those engaging in such acts are persecuted and who subsequently wished to continue his marriage with his wife would be reluctant to disclose information regarding a previous homosexual relationship. 

In other words, if 
such a principle had been applied the Court would not have legitimated, as it did, the idea that the existence of a key 'symptom' of homophobia - the desire to conceal homosexual relationships or sexual acts - is a valid basis for rejecting an asylum claim.

In light of the judgment of the Court of Justice, the European Court of Human Rights should review its ideas about sexual orientation and sexual identity and, specifically, consider: 

  1. That many people who engage in a homosexual sexual relationship do not feel or wish to express a personal identity corresponding to that sexual relationship;
  2. The absence of a self-expressed homosexual identity may be the outcome of a number of factors that include, at least, an individual's subjective understanding of their sexuality not being in accord with the contemporary 'Western' conceptual framework governing sexual behaviours and identities and/or an individual's conscious rejection of a personal identity based on this framework;
  3. That the absence, adoption or rejection of a homosexual personal identity is significantly shaped by the broader cultural, legal and social relations in which individuals are situated and through which they become understandable to themselves and by others.

If the European Court of Human Rights begins to grapple with these points, it may be able to grasp the fact that there are no more 'real' homosexuals than there are 'fakes'. Rather, there are just individuals who sometimes have sexual relationships with other individuals of the same sex and, because such individuals are living in countries where these sexual relationships may result in persecution and death, they often attempt to maintain discretion and secrecy for reasons of personal safety and security.