The EU's top court has banned the "testing" of people seeking asylum on homosexuality grounds, such as asking about their sexual practices. However, it says questions regarding "stereotyped notions" may be useful.
On Tuesday, the European Court of Justice (ECJ)ruled ruled that testing to prove asylum-seekers' claims of homosexuality should not be carried out
, but questioning could occur to some extent.
Three refugees had failed to gain asylum in the Netherlands, with a Dutch court ruling the applicants did not credibly prove their homosexuality. The claimants had feared persecution in their home countries and appealed the decision.
The ECJ ruled that the determining of a refugee's sexualitymust be in line with EU law
, and national authorities could not infringe the fundamental rights to privacy and dignity of those seeking asylum on the grounds that they identify lesbian, gay, bisexual, transgender or intersex (LGBTI).
While authorities could speak to asylum seekers to gain information about their sexuality, they could not ask about sexual practices. Medical "tests" and video material of intimate acts were also not allowed.
It was appropriate, the ECJ ruled, to restrict verifications based on "detailed questioning as to the sexual practices of an applicant for asylum and the option, for those authorities, to allow the applicant to submit to "tests" with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts ..."
Such evidence would infringe on human dignity - even if the applicant themselves proposed to submit it, the court ruled.
"The effect of authorizing or accepting such types of evidence would be to incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence," according to the court.
In the Dutch case, one of the applicants had produced a film showing him having sex with another man. Another offered to undergo an examination.
The Luxembourg-based court ruled that self-declaration of homosexuality was not enough to verify claims, adding that it was "merely the starting point
in the process of assessment ... and may require confirmation."
The court also ruled, however, that a late declaration of homosexuality or reticence to do so cannot be interpreted as a "lack of credibility."
It also ruled that "stereotyped notions" regarding homosexuals "may be a useful element at the disposal of competent authorities for the purposes of assessment," but that authorities could not rely solely on these notions.
The ruling applies to all EU member states.
The ECJ ruled last year that homosexuals persecuted in their home countries can claim refugee status in the EU if there is a genuine risk they would be imprisoned at home.