Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The question of the preliminary reference request itself referred to the Charter (Arts 3 and 7 CFREU): "What limits do Article 4 of [Directive 2004/83] and [the Charter], 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?"
The CJEU referred in its operative part of the judgment to the Charter (Articles 1 and 7 CFREU).
A, B and C, third country nationals, each lodged an application for a temporary residence permit (asylum) in the Netherlands. In support of their applications, they stated that they feared persecution in their respective countries of origin on account, in particular, of their homosexuality.
In all three cases the Staatssecretaris and later the Rechtbank’s-Gravenhage rejected the applications, as not being credible. On the appeal the Dutch Raad van State had doubts as to whether, in light of the Charter, certain limitations were placed on national authorities when verifying the sexual orientation of an applicant. In this manner the Raad van State decided to stay the proceedings and to refer the following question to the Court of Justice:
- What limits do Article 4 of [Directive 2004/83] and [the Charter], 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?
By decision of the Court of 19 April 2013, cases C‑148/13 to C‑150/13 were joined for the purposes of the written and oral procedure and of the judgment.
The case concerned three men applying for asylum in the Netherlands. They claimed to fear persecution on account of their homosexuality. In all three cases the Staatssecretaris (and later the Rechtbank’s-Gravenhage, the District Court of The Hague) rejected the applications arguing that the statements concerning their homosexuality lacked credibility. In the appeals procedure, the Dutch Council of State referred a question to the Court of Justice asking whether, in light of the EU Fundamental Rights Charter (Article 3 CFREU, Right to the Integrity of the Person; Article 7 CFREU, Respect for Private and Family Life) there were any limitations regarding the verification of the sexual orientation of an applicant. The Court made in its reasoning clear that the Qualification Directive had to be interpreted in accordance with the Charter, in particular with Article 1 (Human Dignity) and Article 7 CFREU. The Court stated in its operative part inter alia that Article 4 of the Qualification Directive (‘assessment of facts and circumstances’) in the light of Article 7 of the Charter “must be interpreted as precluding […] the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum”. Further, Article 4 of the Qualification Directive, read in the light of Article 1 of the Charter “must be interpreted as precluding, […], the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts”.
The Court stated in its operative part inter alia that Article 4 of the Qualification Directive (‘assessment of facts and circumstances’) in the light of Article 7 of the Charter “must be interpreted as precluding […] the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum”. Further, Article 4 of the Qualification Directive, read in the light of Article 1 of the Charter “must be interpreted as precluding, […], the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts”.
Operative part:
"Article 4(3)(c) of Directive 2004/83/EC […] and Article 13(3)(a) of Directive 2005/85/EC […], must be interpreted as precluding, in the context of the assessment […] of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.
Article 4 of Directive 2004/83, read in the light of Article 7 [CFREU], must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.
Article 4 of Directive 2004/83, read in the light of Article 1 [CFREU], must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution."
Reasoning:
"36 The Staatssecretaris observes that it is not clear either from Directive 2004/83 or from the Charter that the determination must be made on the basis solely of the declarations by the applicants for asylum as to their declared sexual orientation. According to the Staatssecretaris, it was, however, necessary to verify, not whether the applicants for asylum actually had the sexual orientation that they claimed to have, but rather whether they had made a plausible case that they belonged to a social group within the meaning of Article 10(1)(d) of Directive 2004/83, or whether the ‘actors of persecution’ regarded them as doing so for the purposes of Article 10(2) of that directive.
39 The Raad van State observes that neither Article 4 of Directive 2004/83 nor the provisions of the Charter relied on require the Staatssecretaris to find that the declared sexual orientation of an applicant for asylum is established on the basis solely of his declarations. Furthermore, according to that court, the verification of the sexual orientation of applicants for asylum is no different from the verification of other grounds for persecution.
40 Nevertheless, the Raad van State is uncertain whether there are limits imposed by Article 4 of Directive 2004/83 and Articles 3 and 7 of the Charter on the method of verification of the sexual orientation of applicants for asylum.
41 The referring court considers that the mere fact of putting questions to the applicant for asylum may, to a certain extent, infringe the rights guaranteed by the abovementioned provisions of the Charter.
42 According to that court, whatever method is adopted in the Member State concerned to verify the declared sexual orientation, the risk of infringing the fundamental rights of the applicants for asylum, such as those guaranteed by Articles 3 and 7 of the Charter, cannot be excluded.
46 Directive 2004/83 must, therefore, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (judgment in X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 40).
48 By its question, the referring court asks, in essence, whether Article 4 of Directive 2004/83, read in the light of the Charter, must be interpreted as meaning that it imposes on the competent national authorities, acting under the supervision of the courts, certain limits when they assess the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation.
53 However, the methods used by the competent authorities to assess the statements and documentary or other evidence submitted in support of those applications must be consistent with the provisions of Directive 2004/83 and 2005/85 and, […], with the fundamental rights guaranteed by the Charter, such as the right to respect for human dignity, enshrined in Article 1 of the Charter, and the right to respect for private and family life guaranteed by Article 7 thereof.
55 As regards the assessment of the facts and circumstances under Article 4 of Directive 2004/83, that assessment takes place, as was held at paragraph 64 of the judgment in M. (C‑277/11, EU:C:2012:744), in two separate stages. The first stage concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence, which entails deciding whether, in the light of the specific facts of a given case, the substantive conditions laid down by Articles 9 and 10 or Article 15 of Directive 2004/83 for the grant of international protection are satisfied.
59 As regards the methods of assessing the statements and documentary or other evidence at issue in each of the cases in the main proceedings, it is appropriate, in order to provide an answer useful to the referring court, to restrict the present analysis to the compatibility with Directives 2004/83 and 2005/85 and the Charter of, first, the verifications carried out by the competent authorities based on, in particular, stereotypes as regards homosexuals or detailed questioning as to the sexual practices of an applicant for asylum and the option, for those authorities, to allow the applicant to submit to ‘tests’ with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts and, second, the option for the competent authorities of finding a lack of credibility on the basis of the sole fact that the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the grounds for persecution.
64 In the second place, while the national authorities are entitled to carry out, where appropriate, interviews in order to determine the facts and circumstances as regards the declared sexual orientation of an applicant for asylum, questions concerning details of the sexual practices of that applicant are contrary to the fundamental rights guaranteed by the Charter and, in particular, to the right to respect for private and family life as affirmed in Article 7 thereof.
65 In relation, in the third place, to the option for the national authorities of allowing, as certain applicants in the main proceedings proposed, homosexual acts to be performed, the submission of the applicants to possible ‘tests’ in order to demonstrate their homosexuality or even the production by those applicants of evidence such as films of their intimate acts, it must be pointed out that, besides the fact that such evidence does not necessarily have probative value, such evidence would of its nature infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter."
The impact of this judgment on national law and the use of the EU Charter of Fundamental Rights was described in the European Council on Refugees and Exiles publication: "Preliminary Deference?", available at https://www.ecre.org/wp-content/uploads/2017/03/CJEU-study-Feb-2017-NEW.pdf
Qualification Directive 2004/83/EC
An Introduction to the Common European Asylum System for Courts and Tribunals. A Judicial Analysis
Case study - Verifying sexual orientation of asylum seekers?