By S Chelvan
The recent 2 December judgment in the A, B and C case, provides guidance on prohibited steps in determining an asylum claim based on sexual identity. Where was the positive guidance? Is the Court’s failure to provide guidelines on how a claim is to be determined a blessing in disguise?
To address “where next?”, “how did we get here?” needs to be first of all addressed.
The Dutch authorities have been extremely pro-active in referring questions relating to LGB asylum claims to the Court of Justice of the European Union (CJEU). In November 2013, the CJEU in the joined cases of X, Y and Z ruled that unenforced legislation which criminalised consensual private adult same-sex relations did not amount to the definition of persecution found in Article 9 (2) (c) of the 2004 (Minimum Standards) Qualification Directive: the lack of prosecutions, as defined in 9 (2) (c) was determinative in this point being doomed to failure. This author believes that the point should have been litigated under 9 (2) (b) — the mere existence of discriminatory legislation — however, this will have to wait for a politically receptive CJEU, resulting in a missed opportunity for change (see my earlier post on this blog: ‘C-199/12, C-200/12, C-201/12 – X, Y, Z v Minister voor Immigratie en Asiel: A Missed Opportunity or a New Dawn?’). Nevertheless, the CJEU accepted that the mere existence of such legislation provided a trigger for Particular Social Group Refugee Convention reason, as the group, due to the criminalisation, were identified by their ‘difference’.
The three litigants from Gambia (A), Afghanistan (B) and Uganda (C), were all disbelieved with respect to their sexual identity as gay men by the Dutch authorities, with their accounts being found to be implausible. The Administrative Jurisdiction Division of the Dutch Council of State, considered that it needed guidance on whether having self-identified that there were gay men, the mere fact of further investigation, could infringe fundamental rights (Articles 3 (right to integrity) and 7 (right to respect to private and family life) of the EU Charter of Fundamental Rights) [41 of CJEU judgment]. A single question was posed by the Dutch Court to the CJEU on the 25th of March 2013:
“What limits do Article 4 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, and the Charter of Fundamental Rights of the European Union, in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?”
Louis Middelkoop raised this point in a paper he presented at Amsterdam’s Vu University’s Fleeing Homophobia conference in September 2011, and has highlighted various points in a 2013 blog post. This author has repeatedly made public his ‘concerns’ regarding phrasing a question on credibility assessment in such terms. Each Member State should be able to investigate a claim, since the 2012 CJEU judgment in MM, such investigation at the application stage arises out of a shared responsibility between the national authorities and the asylum seeker.
On the 25th of February 2014, the CJEU heard submissions from the parties, who were present, and also from the UNHCR. The August 2013 written observations of the UNHCR, were developed at the 2014 hearing, where the Court was specifically interested in developing a black list (clear Charter violations) and a grey list (may result in Charter violations) of prohibited examination provisions.
The July 2014 Opinion of Advocate General Sharpston provides a complete template to these lists, referring to both the black and grey lists [par. 50], and provides a useful cross-referencing document to address further reasoning behind the Court’s December 2014 ruling.
In summary …….
Whilst self-identification is the starting-point [par. 52], the Court makes clear that “assessment must take account of the individual situation and personal circumstances of the applicant” [par. 57]. The devil is in the detail, and in this author’s experience, when an LGB applicant is given the safe space to disclose their narrative, these narratives are detailed.
Self-identification of sexual identity is a starting point, but Member States are able to subject self-identification to an assessment procedure, pursuant to Article 4 of the 2004 Qualification Directive (currently updated by the 2011 Recast Directive) [par. 52]. However, such assessments must not violate rights guaranteed by the Charter, specifically the right to respect to human dignity (Article 1) and the right to respect for private and family life (Articled 7).
Therefore the assessment cannot be based on: ….
- Stereotypes – such as knowledge of gay organisations or notions of how gay people behave, should not be part of the assessment. Assessment should be based on the individual and personal circumstances [paras 60-63];
- questioning on Sexual Practices – this should not be asked as this would violate the right to respect private and family life (Article 7 of the Charter) [paras 64-65];
- Tests – no submission of the applicant to tests to demonstrate sexual identity (such as phallometry, or production of video evidence of sexual acts, has little value and would infringe human dignity (Article 1 of the Charter) [paras 65-66]; and
- Adverse Findings with Respect to Delay – delay in not declaring sexual identity at the outset cannot be found to be a point against the applicant’s credibility, as sexuality is an intimate aspect of sexual identity [paras 67 -71]. To rely on delay would violate both Article 4 of the Qualification Directive and Article 13 of the Procedure Directive, due to the vulnerability of gay applicants.
(a) NO to stereotypes:
Worryingly, AG Sharpston in her July 2014 Opinion, did not rule out assessment of credibility arising out of demeanour [92 and 93]. This has given rise to countless determinations of LGB applicants who have been found by Tribunals not to have presented as LGB (not a effeminate man, not a ‘butch’ woman). The reference to demeanour is not highlighted by the CJEU to be an acceptable method of credibility assessment, however the CJEU does make clear that the prohibition is where assessment is “basis solely of stereotyped notions associated with homosexuals” [par. 62] . The CJEU does not rule out the role of reliance on stereotypes, just assessment solely on the basis of stereotypes, including where in the case of Applicant C from Uganda, he was unable to name any gay rights groups in the Netherlands [par. 29]. A warning sign should be heeded, as stereotypes are often based on prejudice, or sheer ignorance of the decision-maker, which renders fundamentally flawed. As Stonewall’s 2010 No Going Back report recorded the views of some UKBA (now the UKVI) staff, that some judges are prejudiced towards the Home Office and against gay asylum seekers, noting one comment that “Judges really bring their own prejudices to court and these effect their decisions seriously”. The 7th December 2014 news report in The Guardian records racial profiling by an Immigration Judge TRP Hollingworth in a criminal case, alleging that he linked the Patel surname to indicate that the victim in harassment proceedings could easily take time off work to attend a hearing, as “she won’t be working anywhere important where she can’t get the time off. She’ll only be working in a shop or an off-licence.” The lesson: stereotypes can be very dangerous and reveal prejudice. The CJEU should have been much clearer on which stereotypes could be encompassed in a legitimate fact-finding exercise, and which clearly could not. This lacuna will continue to provide room for the use of stereotypes.
(b) NO to Sexual Activity Questions:
Sabine Jansen in ILGA-Europe’s September 2014 report on “Good practices related to LGBTI asylum applicants in Europe” highlighted the fact [page 24]:
“While interviewers are expected to make applicants feel at ease, in the case of asylum interviews with LGBTI applicants inappropriate questions are often asked.”
Importantly, questions relating to sexual activity, arising out of stereotypical assumptions, are inappropriate and disproportionate (Article 52(1) of the Charter) [par. 65 of AG ’s Opinion]. Questions regarding sexual activity have caused an international outcry. The 2007 Yogyakarta Principles provides a useful starting-point for defining sexual orientation, adopted by the UNHCR in their International Protection Guidelines No. 9 [§ 8]:
“[S]exual orientation’ to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”
This should ensure that analysis of a sexual identity claim does not concentrate with respect to a fixation on sexual acts, but views these claims with respect to emotions, affections and sexual attraction. In February 2014, the UK’s Observer newspaper reported on the 5½ hour interrogation of a gay asylum applicant, who was asked questions, such as “Did you put your penis into x’s backside?” and “When x was penetrating you, did you have an erection? Did x ejaculate inside you. Why did you use a condom?”
This caused international outrage, resulting in the Home Secretary at the end-of March 2014 ordering an independent review of the Home Office’s handling on LGB asylum claims, with a message that there should be a concentration on ‘sexual orientation and not sexual behaviour’. This review, published in October 2014, recorded 10% of questions were intrusive or inappropriate. The report, discussed later in this piece, has made various recommendations, including a model to address good practice in establishing a gay asylum claim – the DSSH Model. Following the CJEU’s judgment the UK Home Office is expected to publish an updated Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim, first published in 2010, updated in 2011, with a further update expected by the end of 2014/early 2015.
The CJEU, in a single paragraph without the need for further analysis, held that questions specifically relating to sexual practices are contrary to the fundamental rights guaranteed by the Charter “and, in particular, to the right to respect for private and family life” guaranteed by Article 7 [par. 64]. How are Member States to address this point? In the UK, this author understands that Case Owners will be given guidance in case the applicant raises issues which relate to sexual activity (!). The general rule? Sexually explicit questions are prohibited.
(c) NO to testing or video/photographic material:
Applicant A from Gambia, relying on sexual identity as the basis of his second asylum claim, consented to being subjected to a test, or perform a sexual act with another man, to “demonstrate the truth of his declared sexual orientation”[par. 24]. Applicant C from Uganda, submitted a video recording of him performing sexual acts with another man [par. 28].
Starting from the premise that there is no medical test to prove sexual identity, phallometry (a ‘pseudo-medical’ examination attaching electrodes to measure sexual response to pornography – a process used in cases in the Slovak and Czech republics until 2011) was held by AG Sharpston in her July 2014 Opinion to be too ineffective and contrary to the Articles 3 and 7 of the Charter [par. 62 of Opinion]. Importantly, questions relating to sexual activity, arising out of stereotypical assumptions, are inappropriate and disproportionate (Article 52(1) of the Charter) [par. 65 of Opinion]. As I have repeatedly voiced since becoming aware of the use of photographic and video evidence being relied by asylum applicants prior to the February 2013 Stonewall lecture, AG Sharpston’s reference that such evidence can be fabricated, making it difficult to distinguish between the genuine and bogus applicant [par. 65 of Opinion], and consent does not undermine Charter violations [par. 66 of Opinion], is a point I endorse. This author predicted in an April 2014 meeting he arranged with the UK Home Office, this would be the line the CJEU would take, enabling rejection of such degrading and humiliating material.
The CJEU’s ruling that such testing would violate the right to human dignity enshrined in Article 1 of the Charter, now firmly shuts the door to such material constituting consideration of a gay asylum claim. The CJEU’s clear ruling on this point presents a prohibition, noting that to consider video or photographic material admissible in one case, would incite other applicants to be induced to think that they too would have to provide such evidence [par. 66].
(d) NO to adverse findings on delay
Both A and C had made previous asylum claims which were not based on their sexual identity [paras. 24 and 28]. Both did not challenge the refusal of these claims, and submitted second (fresh) claims based on being gay men. The CJEU’s ruling that no adverse finding is to be made merely on the basis of late disclosure relies on the fact that sexual identity is linked to intimate aspects of an individual’s personal identity [par. 69]. The CJEU further highlighted the procedural safeguards under Article 4(3) of the 2004 Qualification Directive and Article 13(3) (a) of the 2005 Procedures Directive, which takes into account the personal and general circumstances, specifically the vulnerability of the applicant [par. 70]. A blanket adverse credibility finding would therefore contrary to either Directive [par. 71]. This has far-reaching consequences for gay asylum claims, for example, in the United Kingdom, section 8 of the Asylum (Treatments of Claimants etc, ) Act 2004 has been used to provide a statutory requirement for an adverse finding on credibility if there has been a delay in providing the basis of the claim relied upon. Following this ruling, the parliamentary sanctioned adverse credibility finding has to be viewed through the prism of EU law, to ensure that there is evidence of assessment in light of the vulnerability of gay applicants, where it is accepted that disclosure of sexual identity is legitimately delayed due to the intimate nature of this aspect of human identity.
This case provides an excellent example of balancing the procedural requirements of both the 2004 Qualification Directive and 2005 Procedures Directive and fundamental rights protected by the Charter (Article 1 (human dignity) and Article 7 (right to respect to private and family life).
How do you prove a gay asylum claim? The CJEU is silent…
The important lacuna in the CJEU’s shopping list is that it provides absolutely no guidance in what approaches the Court should endorse? AG Sharpston refers to an agreement amongst the parties that there is no objective method for verification [par. 35 of Opinion]. The CJEU remains silent on this point.
…a questionnaire will give no useful guidance
Since the June 2011 meeting of international NGOs in Geneva, the UNHCR made clear the concerns of national governments regarding a need for some sort of questionnaire. This author is not in favour of such a questionnaire. It is not practical, since a questionnaire of 40 questions would result in an applicant who was only able to answer 15 questions ‘correctly’ as ‘not gay’, and an individual who answered 39 questions correctly as having learnt the answers from the internet.
Furthermore, the content of the questions are useless in determining sexual orientation. If you ask a straight man, ‘when did you first realise you were straight?’, in my experience, the straight man will look at you with questioning eyes, unable to answer. Does this mean the individual is not a straight man? So, why do we ask the LGB applicant, ‘When did you first realise you are gay?’ Having worked in this specific niche area for 13 years, the majority, noting not all of my clients, refer to points in their lives, many years before any sexual awakening, where they felt ‘different’. As the CJEU held in X, Y and Z in November 2013, it is this ‘difference’ which identifies the victim to the potential persecutor, which brings them within the Particular Social Group Convention reason definition.
…the DSSH model gives guidance
The DSSH model (‘Difference, Stigma, Shame and Harm’) is a model developed by the author to enable the asylum applicant an ability to address their individual narrative by asking specific ‘trigger questions’, to enable further investigation. ILGA-Europe in their press release following the CJEU’s judgment highlighted the DSSH model may be a “useful when assessing credibility”.  This model will not apply to every applicant, but when applied it has led to detailed narratives which has resulted in positive grants of refugee status. As Newsweek Europe in October 2014 summarised, starting with difference as ‘a simple starting point which cuts across borders’. The model provides a summary of possible ‘trigger’ points, to lead to further investigation.
When the LGB applicant recognises their ‘difference’, this is due to the fact that they do not conform to gender sex-roles which are lived by those around them. They then recognise that external actors do not ‘approve’ of their difference, resulting in recognition of ‘Stigma’. Stigma is connected with social/cultural/religious norms, be they through family and neighbours, to religious and political leaders. A natural consequence of Stigma is internalised feelings of ‘Shame’. As the UK Supreme Court held in HJ (Iran) and HT (Cameroon) in July 2010, just as there is no benchmark to measure what constitutes ‘reasonable tolerability’, there is none for ‘shame’, but this is in the context that no straight person would require such a threshold, it is a natural consequence of the impact of, in this case, Stigma. ‘Difference, Stigma and Shame’ exist is the majority of LGB narratives throughout our global community: just ask you gay friends. What makes the LGB refugee? ‘Harm’ – i.e. the harm directed towards them due to their difference. The core point is that the applicant does not conform to a stereotype of heteronormative conduct held by the potential persecutor, hence the harm, and consequent asylum claim, they are ‘not straight enough’. If it was not for this ‘difference’, there is no refugee claim.
The DSSH model was endorsed by the UNHCR in their International Protection Guidelines [par. 62] in October 2012, which coincided with an international workshop for governments in Geneva. The UNHCR August 2013 written comments for A, B and C, specifically refer to “shame, stigma and difference” as factors which address delay in disclosure [fn. 53]. In 2014, the model has been followed by the authorities in New Zealand, and the governments of Sweden, and Finland are known by this author to be assessing the model for guidance. Following the Independent Chief Inspector John Vine’s review on LGB claims in the UK in 2014, following the scandal surrounding sexually explicit questioning reported in the Observer in February 2014, the report published on the 23rd of October 2014, recommended the full implementation of the DSSH model [3.18-3.20]. The UK Home Office has accepted the recommendation in their response to this report, and at a meeting on the 5th of December 2014, confirmed to the author, that it is one model which their Case owners will be referring to in establishing an LGB asylum claim, and training of Caseworkers (decision-makers), and possibly Presenting Officers (litigators) will occur in 2015.
The Dutch Court will now have to re-examine the asylum claims of all three applicants. Both Applicants A and C will require a clean page to successfully determine their claims. Unfortunately for Applicant B from Afghanistan, his inability to give more detail with respect to his emotions and internal awareness of his sexual identity, is not affected by the judgment [par. 26]. Nevertheless, the Court also recorded unilateral findings by the Dutch authorities that his answers were vague, perfunctory and implausible.
In essence, all three cases will require re-determination. With the alphabet soup of litigation, Europe’s asylum determination authorities know what they are prohibited from doing, but from the CJEU’s judgment, are none the wiser on how they can prove a gay asylum claim.
 Lesbian, Gay and Bisexual. In this piece, where the term ‘gay’ is used, this is used to refer to LGB claims, unless the reference is specific to either A, B or C, who all self-identify as gay men.
 Countries identified in the Council of State’s Press Release, dated 20th March 2014 . See also Louis Midlekoop “Dutch Court asks Court of Justice to rule on the limits of verification of Sexual Orientation of European Asylum Seekers” (European Law Blog: 25th April 2013) http://europeanlawblog.eu/?p=1720 (accessed 7 December 2014).
 This question was formulated by the Dutch Court itself on the 20th of March 2013, without being prompted to do so by any of the lawyers representing the 3 applicants (Source: Conversation with Louis Midelkoop: ICJ meeting in London: October 2014).
 See OJ 2013 C 171, p. 16 (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62013CN0148&from=EN ).
 It is understood that not all the lawyers for the asylum applicants were present.
 The UNHCR was allowed to intervene in the national procedings and was therefore allowed to submit its observations in the preliminary procedeedings before the CJEU
 A blog post by the author, analysing the Advocate General’s Opinion appeared on 23 July 2014 on the Free Movement blog: “From ABC to DSSH: how to prove that you are a gay refugee?” Sections of this blog post derive from this earlier piece (see http://www.freemovement.org.uk/from-abc-to-dssh-how-to-prove-that-you-are-a-gay-refugee/ )
 17 July 2014 Written Opinion of Advocate General Sharpston http://curia.europa.eu/juris/document/document.jsf?text=&docid=155164&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=440321
 Council Directive 2011/95/EU of 13 December 2011 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (recast) (OJ 2011 L 337, pp. 9-36).
 No Going Back (2010) Stonewall, page 24.
 See “Judge resigns after making racist remark about victim”, The Guardian, 7 December 2014 (http://www.theguardian.com/law/2014/dec/07/judge-resigns-racist-remark-about-victim-richard-hollingworth ). The resignation related to the judge’s post as a Criminal District Judge. He currently still holds his position as an Immigration Judge. Compare and contrast with Stonewall’s complaint against Senior Immigration Judge (now Upper Tribunal Judge) Freeman in No Going Back (2010), p. 24 “[in 2005 case] repeated references to the applicant having engaged in ‘buggery’. John Freeman also described the applicant’s friends as a ‘cốterie’ and their sexual orientation as a ‘predilection’ and a desire to ‘go in for that sort of thing’. He also referred to their ‘unseemly activity’ and ‘homosexual liaisons’.” The Judge was recently recused from sitting on the Panel for a 2014 Country Guidance case on gay men from Sri Lanka, due to the appearance of bias..
 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (O J 2005 L 326, pp 13-34). The Recast Procedures Directive is to be implemented by 20 July 2015 (Council Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (O J 2013 L 180, pp. 60-95).
 The questions were poses prior to the November 2013 deadline for implementation of the 2011 Re-cast Directives for both the Qualification Directive and Procedures Directive.
 First developed as part of my Law PhD research at King’s College London, with an initial outing at the ELENA Conference in April 2011 in Leuven, further training has been provided on the model has been provided in the UK, Bled, Brussels, Warsaw, Amsterdam, Madrid, Malta, Budapest, Trier, Geissen, Palermo, Kampala and Stockholm, with representatives from 16 governments in Geneva (October 2012), and 12 in Budapest (May 2014). The model will also form the basis of a Chapter on Sexual Orientation and Gender Identity Credibility Assessment in the Second Volume of the Credo Project’s “Credibility Assessment in Asylum Procedures”, and has the objective of providing a humane approach to establishing an asylum claim based on sexual or gender identity.
 See “Sexual orientation and refugee status – CJEU steps in to protect the rights of asylum seekers” ILGA-Europe, News, 2nd December 2014 (http://www.ilga-europe.org/home/news/for_media/media_releases/cjeu_asylum_december_2014 ) (accessed 7 December 2014).
 William Lee Adams “Gay Asylum Seekers Forced to ‘Prove’ their ‘Sexuality’, Newsweek Europe (25th September 2014 (web) 3 October 2014 (printed version).
 “Gay asylum seekers face humiliation” Diane Taylor and Mark Townsend, The Observer, 8 February 2014 http://www.theguardian.com/uk-news/2014/feb/08/gay-asylum-seekers-humiliation-home-office (last accessed 7 December 2014). Review requested by the Home Secretary on 26 March 2014.
 “An investigation into the Home Office’s Handling of Asylum Claims Made on the Grounds of Sexual Orientation: March – June 2014” Independent Chief Inspector of Borders and Immigration (23 October 2014) [3.18-3.20, page 14] http://icinspector.independent.gov.uk/wp-content/uploads/2014/10/Investigation-into-the-Handling-of-Asylum-Claims-Final-Web.pdf (last accessed 7 December 2014).
 The Home Office response to the Independent Chief Inspector’s report: ‘An Investigation into the Handling of Asylum Claims Made on the Grounds of Sexual Orientation: March – June 2014” (Home Office: 23 October 2014) [sections 7.1-7.3, page 5] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/365654/ResponseAsylumClaimsBasisSexualOrientation.pdf (accessed 7 December 2014).
 National Asylum Stakeholder Forum Equality Sub Group meeting, 5th December 2014, UK Home Office (London). The author attended his first meeting of the Sub Group on this occasion.