Somewhere Over the Rainbow: On the Use of Psychological Tests to Determine Asylum Seekers’ Sexual Orientation and the Impact on the Right to Private Life (Case C-473/16, 25 January 2018)

Valérie De Bruyckere
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引用次数: 1

Abstract

This paper covers the problems and dynamics that LGBTQI (Lesbian, Gay, Bisexual, Queer and Intersex) asylum seekers face when they leave their country of origin and enter countries within the European Union. Only a small percentage of people that claim asylum on the basis of reasonable fear of persecution because of sexual orientation are granted asylum within these EU Member States, or some other form of international protection. The paper scans the relevant legislation that is supposed to protect asylum seekers in general and covers the three most important cases of the Court of Justice of the European Union (CJEU) on the treatment and assessment of asylum applications on the basis of fear of persecution because of sexual orientation. The case at hand needs to be seen within this general framework as we know it so far. F v Hungary concerns the case of a Nigerian national claiming asylum on the basis of fear of persecution in his country of origin because of his homosexuality. To determine his general credibility, the Hungarian determining authorities subjected F to three different psychological tests. However, the psychological experts could not confirm or deny F’s sexual orientation based on these tests. Consequently, the determining authorities decided that his general credibility could not be established and his claim for asylum was denied. The Hungarian Appeal Court requested a preliminary ruling before the CJEU. The Court ruled that in these cases it is not always necessary to determine the sexual orientation of an applicant. The CJEU stressed that, when assessing an asylum application, it does not matter whether or not an applicant actually identifies with the particular social group that attracts persecution. Scientific reports from medical, psychological or social experts can certainly be of value throughout the asylum application assessment, but determining authorities cannot be bound by such expert reports. Every case should undergo an in concreto assessment, taking into account the individual circumstances and with respect for human dignity, the right to respect for private and family life, and the right to an effective remedy as guaranteed by Articles 1, 7 and 47 of the EU Charter. Every interference with these rights should be in line with the proportionality principle. Finally, some suggestions are made to shape a future strategy and the development of asylum application assessment.
彩虹之上:关于使用心理测试来确定寻求庇护者的性取向及其对私人生命权的影响(案例C-473/16, 2018年1月25日)
本文涵盖了LGBTQI(女同性恋、男同性恋、双性恋、酷儿和双性人)寻求庇护者在离开原籍国进入欧盟国家时面临的问题和动态。只有一小部分人在合理担心因性取向而受到迫害的基础上申请庇护,在这些欧盟成员国内获得庇护,或获得其他形式的国际保护。该文件浏览了旨在一般保护寻求庇护者的相关立法,并涵盖了欧洲联盟法院(CJEU)关于处理和评估因性取向而害怕受到迫害的庇护申请的三个最重要的案例。目前的情况需要在我们迄今所知道的这个总体框架内加以观察。匈牙利对一名尼日利亚国民因担心其同性恋在原籍国受到迫害而申请庇护的案件表示关切。为了确定他的总体可信度,匈牙利判定当局对F进行了三种不同的心理测试。然而,心理专家无法根据这些测试来确认或否认F的性取向。因此,决定当局决定,他的一般信誉无法确立,他的庇护要求被拒绝。匈牙利上诉法院要求欧洲法院作出初步裁决。法院裁定,在这些案件中,并不总是需要确定申请人的性取向。法院强调,在审查庇护申请时,申请人是否认同受到迫害的特定社会群体并不重要。医学、心理或社会专家的科学报告当然可以在整个庇护申请评估过程中发挥作用,但决定当局不受此类专家报告的约束。每一个案件都应进行具体的评估,考虑到个人情况,尊重人的尊严,尊重私人和家庭生活的权利,以及《欧盟宪章》第1、7和47条所保障的获得有效补救的权利。对这些权利的任何干涉都应符合相称性原则。最后,对庇护申请评估的未来战略和发展提出了一些建议。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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