EU Court Bars Intrusive Psychological Testing for Gay Asylum Seekers

A top European court has denounced psychological testing designed to determine the sexuality of asylum seekers within the EU.

The European Court of Justice, or ECJ, ruled on Thursday, January 25, that a Nigerian national seeking asylum in Hungary should have his claim reconsidered. The man, known to the court as “F,” was denied asylum after Hungarian officials put him through psychological evaluation in order to gauge whether he was telling the truth about his sexuality – and, as a result, the threat to his life and liberty if he returned to his home country. 

F’s claim was rejected, but his lawyers appealed. They argued before the Hungarian courts that the psychologist’s report had formed the basis of the asylum claim, even though the evaluation did not plausibly assess F’s sexual orientation. The Hungarian courts then referred the matter to the higher European Courts for a decision.

The ECJ has previously adjudicated cases like this. However, this latest decision is the first one to weigh whether it is fair to subject claimants to psychological evaluation.

The court ruled, “The performance of such a test amounts to a disproportionate interference in the private life of the asylum seeker.” It also noted that psychological evaluations like this, which involved Rorschach personality testing, are often highly interpretive and, therefore, unreliable. 

Hungary has faced waves of asylum claims as a result of the Syrian refugee crisis and various civil wars in parts of North Africa. In its ruling, the ECJ acknowledges that while expert opinions have their place in evaluating the legitimacy of an asylum claim, forced psychological testing is unlawful.

The court has previously decried and barred countries from using sexual orientation tests, like making people view pornography and then assessing sexual arousal. These sorts of evaluations are obviously intrusive and dehumanizing. In F’s case, the court found that although he was not subjected to physical testing, the forced personality test was “particularly serious because it is intended to give an insight into the most intimate aspects of the asylum-seeker’s life.”

Finally, the court concluded that, specifically under established European human rights laws, such an infringement of rights is illegal:

Article 7 of the Charter of Fundamental Rights, must be interpreted as precluding the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, such as that at issue in the main proceedings, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant.

Hungary will now have to reassess F’s claim, and it would appear that he is in a much stronger position for having won this case.

This ruling is crucial for another reason, though. As the BBC notes, the European Court of Justice has jurisdiction over all 28 EU member states, so the decision will affect them all. While some media publications have claimed that this prevents countries from fairly assessing claims on the basis of sexual orientation, the ruling isn’t quite so encompassing. 

Instead, this ruling adds to several ECJ decisions to narrow the scope of inquiry to concentrate on how much evidence the claimant can provide — not about their sexual orientation, but rather about the dangers they face in their home country. In fact, the court seems to have systematically stripped away a country’s ability to zero in on personal identity in this intrusive way. Instead, the ECJ has put the focus on establishing facts that can lend credibility to or undermine a case. 

It remains to be seen how this judgement will translate into the handling of asylum claims, but it represents a small victory that once again upholds the simple fact that we cannot violate the fundamental rights of asylum claimants.

Photo credit: Thinkstock.

53 comments

Jack Y
Jack Y2 months ago

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Jack Y
Jack Y2 months ago

thanks

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John J
John J2 months ago

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John J
John J2 months ago

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Paulo R
Paulo R3 months ago

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Paulo R
Paulo R3 months ago

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Paulo R
Paulo R3 months ago

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Paulo R
Paulo R3 months ago

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John B
John B4 months ago

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DAVID f
Dave f4 months ago

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