Police and Border Guard Board v X. (Uganda) [Decision of 17 May 2019]
EE: The Supreme Court rules on the assessment of credibility in cases concerning persecution based on sexual orientation
The case concerns an applicant from Uganda, whose request for international protection was rejected by the Police and Border Guard Board (PBGB) as unfounded. The PBGB considered that the applicant's subjective fear of persecution due to being a homosexual was not justified by objective circumstances and that his statements were unreliable. The PBGB reached this conclusion because the applicant could name only one association of sexual minorities in Uganda although he stated that he wanted to become an activist. The PBGB considered that it is not credible that a person who wants to become an activist has so little knowledge on the situation of sexual minorities and organisations in Uganda. The PBGB further noted that the applicant’s justification that he left Uganda because he was forced by his family to marry was not credible for an adult and independent man who could simply not marry a person of the opposite sex. The applicant's request for subsidiary protection was also rejected. The applicant appealed the decision before the Tallinn Administrative Court, which annulled the decision on 19 September 2019 and concluded that the applicant’s claim concerning his own sexual orientation was correct and credible. The PBGB appealed the decision before the Tallinn District Court, which upheld the appeal on 27 March 2020. X. lodged an appeal on points of law requesting that the judgment of the District Court be set aside and that the judgment of the Administrative Court be upheld.
The Supreme Court upheld in part the appeal on points of law on the ground that there has been a significant breach of the rule on court proceedings and referred the case back to the District Court.
The Supreme Court explained the general rules on the taking and assessment of evidence to be followed in similar cases when examining an application for international protection and then assessed their application in the present case.
The court held that the statements of the applicant for international protection concerning his or her sexual orientation constitute the starting point for the assessment of the facts and circumstances provided for in Article 4 of the Revised Qualification Directive (according to the CJEU case of Fathi, par 84). If certain aspects of the applicant's statements are not supported by evidence, these aspects can be taken into account only if the cumulative conditions set out in Article 4(5)(a) to (e) of the Revised Qualification Directive are met (CJEU Fathi, pars. 86-87).
In addition, as the CJEU clarified, the assessment criteria applied by the competent authorities to statements and documentary or other evidence submitted in support of applications must be in accordance with the right to respect for private and family life. It noted that the CJEU has considered inadmissible inquiries "concerning the details of the applicant's sexual behavior" where "applicants commit homosexual acts, that their homosexuality is "tested" or that they produce evidence, such as video recordings of their sexual acts. Such evidence is not admissible even if it is provided voluntarily or with consent.
The court further noted that an expert examination may be ordered by both the administrative body and the court, provided that "the examination procedure respects the fundamental rights guaranteed by the Charter" and that the expertise must be based on "methods and principles which are sufficiently reliable in terms of recognized standards by the international scientific community." However, as the CJEU previously held, an expert report is not essential, as the administrative body must have staff competent to conduct the interviews and the Directive provides guidelines for the assessment of evidence, including the applicant's explanations. Thus, the use of experts to establish orientation is not precluded, but the examination must respect fundamental rights and be one piece of evidence among others.
The court also noted that it is for the responsible administrative body to determine the relevant facts and the applicant has the obligation to assist in the proceedings. He/She may be criticised for failing to assist if (a) he/she was asked for relevant information and facts but did not provided them, and / or (b) the information provided is unclear, contradictory, inconsistent, etc.
The generality of the testimony given during the interview may, in principle, be an indication of the applicant's unreliability. However, the burden of establishing the relevant facts lies with the administrative authority. The unreliability of the applicant's statements and his/her credibility cannot be inferred from the fact that he/she did not explain one or another of the issues in more detail in a situation where the determining authority did not ask the appplicant to do so or to draw attention to the duty to assist.
In addition, staff must have appropriate training and the ability to use interviewing techniques to guide a person to provide relevant information, including the necessary details on topics where a person may find it difficult to open up to a stranger on their own initiative.
The court noted that the greater the risk of persecution for the applicant as to the veracity of his allegation of sexual orientation, the more careful the assessment of the facts and circumstances must be in finding that the cause of persecution has been established. The credibility of a person's statements and the conclusion as to reliability may depend not only on the content of the statement but also on the person's behavior in giving the statement. Based on the protocol and the audio recording, the acquaintance may not perceive all the nuances that may affect the conclusions to be drawn. The court also acknowledged that, although an oral hearing may not be required in an administrative case on appeal, the particular circumstances of the case may necessitate an oral hearing (see ECHR 38978/97, Salomonsson v. Sweden, §§ 36-40), e.g. the immediate impression of the applicant (ECHR Nos. 55391/13, 57728/13, 74041/13, Ramos Nunes de Carvalho e Sá v. Portugal).
The court noted that in international protection cases, where the outcome depends to a large extent on the credibility of the applicant and the credibility of the explanations provided, the court should consider holding a hearing, regardless of the form of proceedings the parties consider appropriate.
Assessment of Application; Credibility; Membership of a particular social group; Personal Interview/ Oral hearing; Second Instance determination; Sexual Orientation; Vulnerable Group;
Riigi Teataja website
Estonia, Supreme Court [Riigikohtusse Poordujale], Police and Border Guard Board v X. (Uganda) [Decision of 17 May 2019], 3-19-990/30, ECLI:EE:RK:2020:3.19.990.19674, 11 May 2020. Link redirects to the English summary in the EASO Case Law Database.