The European Court of Justice in Luxembourg issued the landmark ruling in the case of three men — identified as A, B and C — who sought asylum in the Netherlands on grounds they would experience anti-gay persecution in their country of origin.
Court documents indicate one of the petitioners said he was willing to take a “test” to “prove his homosexuality or to perform a homosexual act to demonstrate the truth of his declared sexual orientation” after Dutch officials rejected his first request for asylum. One of the other men resubmitted his asylum petition with a video showing him having “intimate acts with a person of the same sex.”
“While the national authorities are entitled to carry out, where appropriate, interviews in order to determine the facts and circumstances as regards to the declared sexual orientation of an applicant for asylum, questions concerning details of the sexual practices of that applicant are contrary to the fundamental rights guaranteed by the (EU) Charter (of Fundamental Rights) and, in particular, to the right to respect for private and family life,” reads the decision.
The court further concluded that allowing gay asylum seekers to perform same sex sexual acts, undergo “tests” to prove their homosexuality or submit videos of their “intimate acts” would “of its nature infringe human dignity” the EU Charter of Fundamental Rights guarantees.
The European Court of Justice in November 2013 ruled those who face incarceration in their home countries because of their sexual orientation could receive asylum in the EU.
A Ugandan HIV/AIDS service provider earlier this year sought asylum in the Netherlands after President Yoweri Museveni signed his country’s so-called Anti-Homosexuality Bill. The Washington Blade in recent months has spoken with several other LGBT Ugandans and Russians who have received asylum in the U.S.
The U.N. Refugee Agency in 2011 criticized Czech authorities over their policy of using phallometry to determine whether an asylum seeker is gay.
Koen van Dijk, executive director of COC Nederland, a Dutch advocacy group, told the Blade last year during an interview at his Amsterdam office that LGBT asylum seekers in his country remain vulnerable because the government places them with their countrymen who may subject them to harassment and violence. He said officials sometimes blame the victim for the mistreatment they experience or are simply unaware of it.
ILGA-Europe Executive Director Evelyne Paradis welcomed the European Court of Justice ruling, while noting her organization would like to see “more structured guidance” on how EU countries should process LGBT-specific asylum claims
“The fact that the court has provided a black list of methods not to be used to assess asylum claims, because they infringe human dignity, is very positive news,” said Paradis.