F. (Nigeria) vs Bevándorlási és Állampolgársági Hivatal (HU, Immigration and Asylum Office)
In April 2015, a Nigerian national submitted an application for asylum to the Hungarian authorities claiming that he feared he would be persecuted in his country of origin on account of his homosexuality. Although those authorities did not consider that person’s statements to be contradictory, they rejected the application on the ground that the psychologist’s expert report they had commissioned for the purpose of exploring the personality of the asylum seeker had not confirmed his alleged sexual orientation. The asylum seeker brought an action against that decision before the Hungarian courts contending that the psychological tests used for the expert’s report at issue seriously prejudiced his fundamental rights without making it possible to assess the plausibility of his sexual orientation. The Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary), which is hearing the case, asks the Court of Justice whether the Hungarian authorities may assess an asylum seeker’s statements relating to his sexual orientation on the basis of a psychologist’s expert report. If the Court were to answer the first question in the negative, the Hungarian court also seeks to ascertain whether there are nevertheless expert methods which may be used by national authorities to examine the credibility of the claims made in the context of an application for asylum based on a fear of persecution on the ground of sexual orientation. In the Judgement, the Court the Court holds first of all that the directive on standards for obtaining refugee status enables the national authorities to commission an expert’s report in the context of the assessment of an application for asylum in order to better determine the asylum seeker’s actual need for international protection. However, should recourse be had to an expert’s report, the procedures must be consistent with 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. Even when the performance of tests is formally conditional upon the consent of the person concerned, that consent is not necessarily given freely, since it is imposed under the pressure of the circumstances in which an asylum seeker finds himself. In those circumstances, recourse to a psychologist’s expert report in order to determine the sexual orientation of the asylum seeker constitutes an interference with that person’s right to respect for his private life. The Court states that the impact of such an expert’s report on private life is disproportionate in relation to that objective. In this respect, the Court observes in particular that such interference is particularly serious because it is intended to give an insight into the most intimate aspects of the asylum seeker’s life.
Assessment of Application; Credibility; Sexual Orientation;
European Union,EU: Court of Justice of the European Union [CJEU], F. (Nigeria) vs Bevándorlási és Állampolgársági Hivatal (HU, Immigration and Asylum Office), 25/01/2018CJEU: Court rules on psychological tests in order to determine the applicant's sexual orientation