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LGBT asylum-seekers cannot produce 'sex tapes' as evidence

An EU court also ruled authorities can’t ask questions that violate privacy or dignity.

shutterstock_163229375 Source: Video tape via Shutterstock

ASYLUM AND IMMIGRATION authorities in EU countries can verify that an asylum-seeker is gay, lesbian, bisexual or transgender, but can’t demand, or even accept proof in a way that violates their privacy and dignity.

That’s the ruling of the European Court of Justice this week, in a case brought by three asylum-seekers against the Netherlands.

The court, based in Luxembourg, agreed that if a refugee is applying for asylum on the grounds of feared or experienced persecution based on their sexual orientation, it’s reasonable for authorities to try to confirm their claim.

However, the judges said:

  • Authorities must not rely on “stereotyped notions” to try to gauge the plausibility of claims of LGBT status. 
  • Authorities must not allow or force them to undergo a “test” involving homosexual acts, because this would breach their human dignity.
  • Authorities cannot ask for or accept films showing the asylum seeker engaged in those acts.
  • Even if the asylum seeker is willing to produce such evidence, accepting it would “incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence.”

David Carroll, Executive Director of BeLonG To, which runs a service for young LGBT asylum seekers, told TheJournal.ie the ruling would have a “really positive impact.”

It’s very difficult to try to have an objective assessment of a complex, personal, individual thing like sexual orientation, especially when you’re dealing with cultural differences.
We’ve seen people being asked to ‘prove’ their sexual identity using outdated and stereotyped notions of gay culture, as well as being asked to provide letters and other evidence.
In our experience, these young people are extremely vulnerable, and fleeing their country, so they’re highly unlikely to make a point of packing their ‘gay suitcase’ before they do.

The court also ruled that just because an asylum seeker declares their sexual orientation late in their application should not affect the credibility of their claim.

It cannot be concluded that the declared sexuality lacks credibility simple because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.

Read: Eight men jailed for three years over ‘gay wedding’>

Case Study: Being a gay woman in DRC and facing fears of ‘punitive’ rape>

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Dan MacGuill

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