On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.
On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.