Very private lives: “acceptable questioning” in sexual orientation asylum cases

Anita Davies

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 [2010] 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.

  1. 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” [38], 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]

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Adieu and Farewell to the Data Retention Directive

Anita PicAnita Davies

The European Union is all too often portrayed as a creature defined by over-regulation – be it the infamous “bendy banana” rules or the great chocolate debate. It is easy (and sometimes politically convenient) to forget that the EU and CJEU can serve to protect individuals from overt (and covert) state regulation. As of a CJEU decision this week to annul the Data Retention Directive (2006/24/EC), it will be very difficult for the Home Secretary, Teresa May, to push through the Communications Data Bill (also known as the “Snooper’s Charter”).

The bill was abandoned in May 2013 following opposition from the Lib Dems, but has shown signs of resurfacing. The bill would give police and security services access, without a warrant, to details of all online communication in the UK – such as the time, duration, originator and recipient, and the location of the device from which it was made. The bill depends however, on operators being obliged to store customers’ details and records. The data retention directive obliged companies to retain data and information of citizens using electronic communications networks – but now that it has been annulled the responsibility of operators to retain data is far more ambiguous.

The CJEU decision resulted from proceedings taking place in Ireland and Austria – where challenges had been mounted regarding the legality of national legislative and administrative measures concerning the retention of data. The Court ruled on Wednesday that the purpose of the Data Retention Directive, i.e. ensuring that communications data was available in order to investigate and fight serious crime, was compatible with the European Rights framework. However, the Directive itself entailed a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data (Articles 7 and 8 of the CFREU), without that interference being limited to what was strictly necessary.

The Court noted that the data being retained enabled:

“very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” [§27].

Given the potential conclusions the Court found that:

“The EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data” [§54].

The Directive lacked such precise rules and appropriate safeguards.

In particular the Court objected to the fact that the Directive did not discriminate between individuals. The Directive covers all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. The Directive also fails (somewhat surprisingly given its purpose) to define the notion of “serious crime”. The Court found that the data retention period (6 to 24 months) was too generic and that the Directive did not require that the data be retained within the EU itself. Continue reading

Uncharted territory? The European Charter and Fair Trial Rights

Anita PicAnita Davies

The case of ZZ v SSHD [2014] EWCA Civ 7 shows that, in certain circumstances, the European Charter may come to an individual’s rescue in terms of procedural protection even when the European Convention of Human Rights does not apply. While this news will no doubt be of concern to some sections of the media and legal establishment, ZZ is an interesting example of how domestic, Convention and Charter rights interlink.     ZZ is an individual with Algerian and French nationality. In 2006 the Secretary of State refused ZZ entry to the UK pursuant to regulation 19(1) of the Immigration (European Economic Area) Regulations 2006, on the basis that his exclusion was justified on grounds of public security. His appeal against that decision lay to the Special Immigration Appeal Commission (“SIAC”), which decided his case according to a closed material procedure and dismissed the appeal in September 2008.

Closed material procedures have been challenged before, for example in Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, which concerned control orders. In that case it was held that the right to a fair hearing under Article 6 required a minimum amount of information to be supplied to an individual in order for them to know the case against them. But it was held by Strasbourg in Maaouia v France [2000] 33 EHRR 1037 that Article 6 does not apply to immigration proceedings, primarily because it is limited to the determination of “civil rights and obligations” or a “criminal charge”.

ZZ’s case was however unusual in that because he held dual nationality, the refusal to admit him into the United Kingdom restricted the rights of free movement and residence that he enjoyed as a citizen of the European Union by virtue of his French nationality. The essential question was whether in the SIAC proceedings he had sufficient disclosure of the case against him to comply with the procedural requirements of EU law, in particular Article 47, which reads very similarly to Article 6:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article ….”

Crucially, Article 47 is not limited to the determination of “civil rights and obligations” or a “criminal charge”.

An appeal against SIAC’s decision was heard by the Court of Appeal  in early 2011. The Court dismissed the domestic law grounds of appeal but decided to refer the question of EU law to the CJEU for a preliminary ruling. The CJEU gave its judgment on that reference on 4 June 2013 (Case C-300/11). However, the CJEU’s decision was not entirely clear and led to a dispute as to its actual meaning. The Court Of Appeal deemed the CJEU’s judgment to be clear, namely that Article 47 requires a similar level of disclosure of the case against an individual as is required by Article 6.  Richards LJ said at [18]:

“[I]t seems to me that the resolution of the issue before us depends on a straightforward reading of the CJEU’s judgment. In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under EU law.”  

ZZ therefore extends the procedural rights available to EU citizens in immigration proceedings and also fills in some of the gaps in Article 6, which has been subject to a prolific jurisprudence as concerns its application in terms of the definition of both “civil rights” and “criminal charge”. Article 47, due to its wider drafting, circumnavigates such difficulties and also applies beyond immigration proceedings, applying as it does to the violation of all rights and freedoms guaranteed by the law of the Union. Article 47 thus opens up a wider territory of fair hearing rights for EU citizens. Continue reading

Case Comment: Minister voor Immigratie en Asiel v X (C-199/12) Y (C-200/12) and Z

Anita PicAnita Davies

The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.

The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.

The questions referred were:

  1. Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
  2. Which homosexual activities might fall within the scope of the Directive:

(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;

(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;

(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).

3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading

Radu – A Case of Failed Dialogue

Anita Davies

The CJEU handed down its decision in Ministerul Public – Parchetul de pe lângă Curtea de Apel Constanţa v Ciprian Vasile Radu last week. In summary, the Court was asked to clarify the extent to which countries are required to take into account rights to a fair trial and liberty when considering whether to execute an a European Arrest Warrant (EAW). It is a short and somewhat surprising judgment, which does not sit well either with the Court’s decision in NS v Secretary of State for the Home Department last year, the original opinion of Advocate General Sharpston, or indeed the questions referred for preliminary ruling. Continue reading

Rahman – further fleshing out of the position of third country nationals under the Citizenship Directive

Christopher Brown and Anita Davies

On 5 September 2012 the Grand Chamber of the CJEU gave judgment in Case C-83/11 Secretary of State for the Home Department v Rahman and Ors.  This case had been referred to the CJEU by the Upper Tribunal (IAC) here in the UK.  The questions referred concerned the interpretation of Article 3(2) of Directive 2004/38, also known as the Citizenship Directive.  We think it is an interesting judgment, particularly for immigration practitioners, and so (rather later than planned) here is a short synopsis and comment.

Article 3(2) reads as follows:

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Putting Pupino in its Place

Anita Davies

The decision is Assange v The Swedish Prosecution Authority [2012] UKSC 22 yielded a number of surprises. Firstly, the decision of the majority to rely on a point not argued before the Court (the 1969 Vienna Convention on the Law of Treaties) and secondly, the finding that the CJEU’s decision in Criminal Proceedings Against Pupino (Case C-105/03), which establishes that member states must interpret domestic law in conformity with the wording and purpose of framework decisions, does not bind UK courts. While this finding did not have a material impact on the outcome of Assange, as the majority concluded that the common law presumption that the UK will legislate in accordance with it international obligations would result in the same outcome as if Pupino had applied, it established an important constitutional point that appears, somewhat curiously, to have been overlooked in previous case law.

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Opt-in, opt-out, shake it all about: the future of the European Arrest Warrant

Joanna Buckley & Anita Davies

The High Court’s decision on 2 November that Julian Assange should be extradited to Sweden to face rape allegations has rekindled debate on the use and implementation of the European Arrest Warrant (“EAW)”. Critics of the system contend that EAWs do not include sufficient safeguards. Proponents argue that the EAWs are a necessary tool to fight cross-border crime.

UK extradition policy has undergone several reviews in the last year, highlighting divergent opinions on the future of the EAW. In September 2010, the government appointed an inquiry under Sir Scott Baker (“the Extradition Review”), which released its findings on 18 October 2011 (a useful summary can be found on the UK Human Rights Blog). The report concluded that, “apart from the problem of proportionality, we believe that the European arrest warrant scheme has worked reasonably well”. Prior to this, the Joint Human Rights Committee (“JHRC”) released a report on 22 June 2011. In contrast to the Extradition Review, the JHRC called for a future renegotiation of the 2002 Framework Decision on the EAW, given domestic effect by the Extradition Act 2003. A Westminster Hall debate on extradition is scheduled for 24 November.

These reviews highlight disagreement on key areas – whether there should be a requirement for prima facie evidence, the application of the principle of double criminality and the sufficiency of the human rights bar to extradition contained in ss21 and 87 of the Extradition Act 2003, amongst others. But they have also thrown up much larger issues of the theoretical underpinnings of the relationship between the EU and its member states (as previously discussed here on EUtopia).

At the heart of the EAW scheme is the principle of mutual recognition. Mutual recognition has been the cornerstone of European integration on criminal matters, put forward (perhaps ironically) by the UK during its presidency of the European Council in 1998. Supported theoretically by the architects of EU legislation, its implementation has been far more difficult.

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