The CJEU’s judgment in the case of A, B and C is due by the end of the year. Ahead of the expected judgment, this post recaps the opinion handed down by Advocate General Sharpston in July.
In February 2014 The Guardian published details of the lines of questioning used by the UK Home Office in questioning gay and lesbian asylum seekers. The questions considered appropriate to ask vulnerable asylum seekers were shocking; including queries such as “what is it about men’s backsides that attracts you?”.
The Home Office’s prurient interest in the very private lives of asylum seekers has been attributed in part to the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31, where the Court found that asylum could not be refused on the basis that an individual would not face persecution due to their sexuality if they behaved with discretion when returned. The onus in questioning therefore shifted from conditions facing gay communities in the country of return to proving sexual orientation, resulting in the Home Office seeking to verify sexual orientation via intrusive questioning. Verifying sexual orientation in asylum claims is an issue that a number of EU states have sought to deal with, and Advocate General Sharpston’s opinion in ABC constitutes guidance as to what is considered acceptable questioning. However, as will be seen below, Sharpston’s opinion has to grapple with the central problem: how do you legally “verify” human sexuality? By its very nature sexuality is impossible to “prove” by reference to anything other than what an individual considers their sexuality to be.
- B and C were individuals who submitted asylum claims to the Netherlands authorities on the grounds of a well founded fear of being persecuted in their respective countries of origin because they were gay men. All were refused on the basis that their claims of sexual orientation were not “credible”. Two of the applicants had gone to some lengths to prove their sexual orientation: C had submitted a video depicting him performing sexual acts with a man, and A had been willing to submit to a test to prove that he was gay.
In her opinion, Advocate General Sharpston sought to set out some guidelines as to what was an appropriate method for assessing declared sexual orientation, and if the limits were different from the limits applied to an assessment of the credibility of other grounds of persecution. Sharpston recognised that an “individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life” , therefore, an applicant’s averred sexual orientation must always be the starting point in assessing a claim, however:
“The competent national authorities are entitled to examine that element of his claim together with all other elements in order to assess whether he has a well-founded fear of persecution within the meaning of the Qualification Directive and the Geneva Convention.
It therefore follows ineluctably that applications for refugee status on the grounds of sexual orientation, like any other applications for refugee status, are subject to a process of assessment as required by Article 4 of the Qualification Directive. That assessment must, however, be carried out in a way that respects the individual’s rights as guaranteed by the Charter.” [48 -49]
What approach will therefore guarantee fundamental rights? The difficulty Advocate General Sharpston had is that she herself recognised that as sexual identity is so complex, there is no one ‘right way’ for a person to prove his or her sexual orientation, as it is not possible to determine an individual’s sexual orientation definitively . Therefore Advocate General Sharpston could not endorse a particular approach, but only rule out what would be considered unacceptable. Unacceptable methods include medical or pseudo-medical examinations, questioning about an applicant’s sexual experience, or comparing an application to stereotypes . Sharpston at  also referred to the UNHCR ‘black list’ and ‘grey list’ of methods.
Sharpston did not adopt the terminology of the UNHCR grey list and black list, but instead provided general parameters. Applicants may not:
- Be subjected to any purported medical test applied to determine an applicant’s sexual orientation could not, in my view, be considered to be consistent with Article 3 of the Charter 
- Be subject to explicit questions concerning an applicant’s sexual activities and proclivities are also inconsistent with Articles 3 and 7 of the Charter. By their very nature, such questions violate an individual’s integrity as guaranteed by Article 3(1) of the Charter. 
- Be required to produce evidence such as films or photographs or to request them to perform sexual acts in order to demonstrate their sexual orientation 
- Be subject to stereotypes predicated on the basis that there are ‘correct’ and ‘incorrect’ answers to questions on sexual orientation.
- Instead of seeking a definitive determination of averred sexual orientation, the focus should be on whether an account is “plausible and coherent” .
Advocate General Sharpston’s opinion is a sharp reminder of the fact that sexual identity is a fluid, and that member states should avoid the temptation to adopt a ‘tick box’ approach to claims of sexual orientation. Instead the focus should be on coherence and plausibility, as Sharpston states at :
“The basic principles and guarantees of the first instance procedure are found in Chapter II of the Procedures Directive. Member States must ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. Applicants must be given an opportunity to participate in a personal interview before the determining authority takes a decision. The requirements for the personal interview are laid down in Article 13 of the Procedures Directive. They include ensuring that personal interviews are conducted under conditions, which allow applicants to present the grounds for their applications in a comprehensive manner. Accordingly, Member States must ensure that the officials who conduct such interviews are sufficiently competent and that applicants have access to the services of an interpreter to assist them.”
Unfortunately, Sharpston’s approach to verification claims is only possible in an immigration system that is well resourced, with sufficient number of competent staff and an emphasis on the process of cooperation as required under Article 4 of the Qualification Directive. At present the UK immigration system is none of those things. Even if the CJEU endorse Sharpston’s opinion the real difficulty is going to be translating the recommendations for best practice into the system. In the current ugly election atmosphere and rhetoric surrounding Europe it is all too easy to imagine the upcoming judgment fuelling tabloid headlines and becoming yet another stick with which to beat the European Union.