At the outset, the CJEU found that although the applicants’ mere declarations are not sufficient per se to establish their sexual orientation, authorities are bound by certain limits when assessing a SOGI asylum application. This judgment is important as it establishes some core principles on credibility and evidence assessment however, the Court could have offered more positive guidance in that regard. The CJEU was asked whether the Charter, in particular Articles 3 (right to the integrity of the person) and 7 (respect for private and family life), as well as Article 4 recast Qualification Directive posed certain limits on national authorities when verifying an asylum seeker’s sexual orientation. It was however one year after X, Y and Z that the CJEU was called to provide guidance on evidentiary standards in SOGI asylum claims in another case concerning three gay men seeking asylum on the basis of their sexual orientation, who were not deemed credible ( Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014 ).
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Despite some shortcomings, this decision expressly recognised that persecution on the basis of sexual orientation can give rise to refugee status under the ‘particular social group’ ground of the 1951 Refugee Convention. The CJEU dealt with Sexual Orientation and Gender Identity ( SOGI ) asylum claims for the first time in the joined cases C-199/12 to C-201/12, X, Y and Z v. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – in force since 22 December 2013.įollowing the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of Council Directive 2004/83/EC, in the light of Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C ‑ 473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached a new low. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications of individuals claiming asylum on grounds related to their sexual orientation.
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The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. Hungary has been in the spotlight for all the wrong reasons for quite a while.