EU bans countries from using 'homosexuality tests' on asylum seekers

Refugees were subjected to dubious personality tests

The logo of the European Court of Justice is pictured outside the main courtroom in Luxembourg (Reuters)

The EU has banned its members from imposing 'homosexuality tests' on asylum seekers, warning that the processes are unreliable and also breach fundamental human rights.

Such tests are sometimes used to determine a person’s sexuality in asylum applications when a person says they are fleeing persecution in of the 72 countries in the world where being gay is illegal.

But in a binding ruling the European Court of Justice said on Thursday that the 28 member states of the EU could not use the psychological evaluations because they amount to “an interference with that person’s right to respect for his private life”.

The ECJ said the tests, which are usually based on a psychologists’ report, were “not essential” to determining whether a person was telling the truth about their sexuality and that their reliability was “at best, only limited”.

“The Court states that the impact of such an expert’s report on private life is disproportionate in relation to that objective,” the body said in a statement.

“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.”

The ruling came after a Nigerian man, identified only as “F”, had his asylum application rejected by the Hungarian government after he claimed he would be persecuted if he were made to return to Nigeria.

Same-sex sexual activity is illegal in Nigeria, where punishment can range from death by stoning to 14 years in prison depending on the locality. Extra-legal mob violence against gay people is also common, according to human rights groups, while discrimination is rife and not illegal.

The Hungarian authorities however rejected the Nigerian man’s application on the basis of a psychologists’ report that could not confirm his sexual orientation – despite them having found no actual contradictions in his statements about persecution.

The test used by the Hungarian officials included personality tests, including asking a man to draw a person in the rain. The Rorschach test, which involves looking at in interpreting ink-blots, and the Szondi test, were also used. A psychologist also examined the man’s personality.

The court said that though “certain forms of expert reports may prove useful” in asylum cases, they must not interfere with a person’s fundamental right to a private life.

The Hungarian authorities will now have to reassess the man’s case, but the ruling also has a more far-reaching effect in binding all 28 member states of the EU.

In 2014 the ECJ ruled on a similar case featuring three men who had applied for asylum in the Netherlands, and found that determining a refugee's sexuality had to be consistent with their right to a private and family life

Data released by the British government in November shows that it rejected 2,379 of 3,535 asylum seeker application from people fleeing persecution at least partly based on their sexuality, during the period between 1 July 2015 and 31 March 2017.