Psychological tests on gay asylum seekers to ‘prove’ their sexuality break EU law, the European Court of Justice ruled today.
Hundreds of gay people from Africa, the Middle East and Chechnya have claimed asylum in the EU on the basis that they would be persecuted in their home countries.
Today’s ruling, which follows a similar decision in 2014, sets a precedent which should be observed in all 28 EU member states, including Britain.
Judges in Luxembourg said that basing an asylum decision solely on the result of a psychological evaluation broke EU law because their infringed on the human right of privacy and dignity.
Today’s decision concerned an appeal by a Nigerian man against a Hungarian decision to deny him asylum. The claim was rejected after psychological tests did not prove he was gay.
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The European Court of Justice (ECJ) clarifies points of EU law for national courts and is the highest court in the bloc. The case will now be dealt with by the Hungarian court, which must take the EU judges’ decision into account.
The asylum seeker’s case to stay in Hungary is likely to be strengthened by today’s judgement, although Budapest has taken an infamously hard line on migration.
The European Commission is suing Hungary in the ECJ for refusing to take in its share of refugees under the EU’s mandatory migrant relocation quota scheme.
In 2014 EU judges made a similar ruling about a case in the Netherlands and the ECJ ruled in 2013 that people who had been jailed for homosexuality in their home country could claim asylum in the EU.
At a glance | European Court of Justice
Last year, the Home Office released data that showed that, over a two year period, more than two-thirds of the 3,535 asylum seeker applications involving sexuality. Theresa May was Home Secretary at the time of the decisions.
The Home Office was criticised in 2017 after it brought in new rules that would send gay Afghans back to Afghanistan, where homosexuality is illegal and “wholly taboo”.
Home Office guidelines say that claimants should “establish to a reasonable degree of likelihood” of their sexuality, and that a person’s declared sexuality should be taken as a “starting point” in a case.
The guidelines tell interviewers to avoid asking “prurient questions” about sexual preferences or physical attractiveness. But investigations in 2014 found that those rules were being flouted and Mrs May ordered a review.
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